BEFORE THE IOWA INDUSTRIAL COMMISSIONER NORBERT DETERT, File No. 871472 Claimant, A R B I T R A T I 0 N vs. D E C I S I O N CITY OF CEDAR RAPIDS, F I L E D Employer, Self-Insured, DEC 11 1990 Defendant. IOWA INDUSTRIAL COMMISSIONER STATEMENT OF THE CASE This is a proceeding in arbitration brought by Norbert Detert, claimant, against the City of Cedar Rapids, Iowa, a self-insured defendant employer, for workers' compensation benefits as a result of an alleged injury on December 16, 1987. On August 21, 1990, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a prehearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. Oral testimony and written exhibits were received during the hearing from the parties. The exhibits offered into the evidence are listed in the prehearing report. According to the prehearing report, the parties have stipulated to the following matters: 1. On December 16, 1987, claimant received an injury which arose out of and in the course of his employment with Cedar Rapids. 2. Claimant's entitlement to temporary total disability or healing period benefits extends from December 17, 1987 through March 27, 1988 and from February 15, 1989 through May 19, 1989. 3. If the injury is found to have caused permanent disability, the type of disability is an industrial disability to the body as a whole. 4. Claimant's rate of weekly compensation in the event of an award of weekly benefits shall be $262.27. 5. All requested medical benefits have been or will be paid by defendant. ISSUES The parties submitted the following issues for determination in this proceeding: I. The extent of claimant's entitlement to permanent disability benefits; II. The extent, if any, of claimant's entitlement to penalty benefits under Iowa Code section 86.13 for an unreasonable denial of workers' compensation benefits; and, III. The extent, if any, of defendant's entitlement to a credit for payment of wages/sick leave in lieu of compensation during claimant's healing period. FINDINGS OF FACT Having heard the testimony and considered all the evidence, the deputy industrial commissioner finds as follows: Claimant has worked for the City of Cedar Rapids for approximately 43 years. He started as a laborer and has held jobs as truck driver, can man and heavy equipment operator. The work injury herein occurred while claimant was performing his heavy equipment operator job. Claimant continues in this same job classification for the City of Cedar Rapids at the present time. Claimant is currently assigned to operating a street sweeper. On December 16, 1987, claimant was assigned to plowing snow with a road grater. Claimant injured both of his shoulders when the blade of the grater struck an obstruction in the roadway. The injuries involved a tear of the rotator cuff in each shoulder which required two separate surgeries to repair the damage. Based upon the uncontroverted views of claimant's primary treating orthopedic surgeon, Martin Roach, M.D., claimant suffers a 16 percent permanent partial impairment to the body as a whole as a result of the bilateral shoulder injuries. Dr. Roach has permanently restricted claimant's lifting to 25 pounds and has directed that he can no longer operate the road grater. As a result of the work injury of December 16, 1987, claimant has suffered a 10 percent loss of earning capacity. Despite his age of 61 years, claimant's medical condition before the work injury was excellent and he had no functional impairments. He was able to fully perform physical tasks including heavy lifting and the operation of a road grater. However, claimant's employer has accommodated for his disability and has returned claimant to work under the restrictions that he can no longer be assigned to road grater work. Claimant currently operates a street sweeper which at times is hard for him, however, he is able to perform this job satisfactorily according to the defendant employer. Claimant has suffered no loss of earnings from his inability to operate the grater or from his disability. Claimant testified that his current hourly rate is higher than at the time of the work injury and does receive the same income and overtime work as he did before. Claimant was paid 32.5 weeks of permanent partial disability benefits by the defendant prior to hearing based upon the ratings of Dr. Roach to the upper extremity rather than to the body as a whole. Defendant contends that they were informed by members of the staff of this agency that such a method of payment was correct. CONCLUSIONS OF LAW I. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent disability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physical 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 may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condition has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, immediately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985). In the case sub judice, it was found that claimant has suffered a 10 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 50 weeks of permanent partial disability benefits under Iowa Code section 85.34(2)(u) which is 10 percent of 500 weeks, the maximum allowable for an injury to the body as a whole in that subsection. In this decision, it is found that claimant suffered a loss of earning capacity despite a lack of showing of a loss of actual earnings. A showing that claimant had no loss of actual earnings does not preclude a finding of industrial disability. See Michael v. Harrison County, Thirty-Fourth Biennial Reports, Iowa Industrial Commissioner 218, 220 (Appeal Decision 1979). Claimant seeks penalty benefits under Iowa Code section 86.13 contending that defendant unreasonably denied benefits when it incorrectly computed benefits on the basis of an impairment to the arm rather than to the body as a whole. Defendant contends that they can rely upon the statements of the staff to avoid penalty benefits. This is incorrect. Unless a communication is received from this agency in the form of a specific decision, ruling or order of the industrial commissioner, it is not binding upon the industrial commissioner. However, claimant is not entitled to penalty benefits. Claimant has been paid over 30 weeks of compensation for permanent partial disability. It is fairly debatable that claimant had no industrial disability or a minimal loss of earning capacity given his age and the fact that he is back to work performing the same job earning more money than he did prior to the injury. Therefore, claimant has failed to show that he has been unreasonably denied benefits in this case prior to hearing. Defendant contends that it is entitled to a credit on future payments of disability benefits in an amount which represents the difference between defendant's payment of full wages in the form of sick leave to claimant during his healing period and claimant's weekly entitlement to workers' compensation benefits. However, this agency has adopted a rule which disallows such a credit. See Division of Industrial Services Rule 343 IAC 8.4. Therefore, the claim for credit is denied. ORDER 1. Defendant shall pay to claimant fifty (50) weeks of permanent partial disability benefits at the rate of two hundred sixty-two and 27/100 dollars ($262.27) from May 20, 1989. 2. Defendant shall pay accrued weekly benefits in a lump sum and shall receive a credit against this award for benefits previously paid. However, defendant may not take a credit for the excess payments of salary in lieu of compensation. 3. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 4. Defendant shall pay the costs of this action pursuant to Division of Industrial Services Rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 5. Defendant shall file the activity reports on the payment of this award as requested by this agency pursuant to Division of Industrial Services Rule 343 IAC 3.1. Signed and filed this 11th day of December, 1990. LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Matthew J. Petrzelka Attorney at Law 1200 MNB Bldg Cedar Rapids, IA 52401 Mr. James H. Flitz Attorney at Law City Hall - 7th Floor Cedar Rapids, IA 52401 5-1803 Filed December 11, 1990 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER NORBERT DETERT, File No. 871472 Claimant, A R B I T R A T I 0 N vs. D E C I S I 0 N CITY OF CEDAR RAPIDS, Employer, Self-Insured, Defendant. 5-1803 Extent of permanent disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : NEIL CHRISTENSEN, : : Claimant, : : File Nos. 871523 vs. : 976696 : PRINCE MANUFACTURING CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ introduction This is a proceeding in arbitration brought by Neil T. Christensen, claimant, against Prince Manufacturing Co., employer, and Aetna Insurance Company, insurance carrier, as defendants. The record in this case consists of testimony from the claimant, Craig Presnall and Richard Saltsgiver; claimant's exhibits 5, 13, 27, 28, 29 and 30; and, defendants' exhibits A through L. The matter came on for hearing at Sioux City, Iowa, on February 13, 1992. findings of fact The undersigned deputy, having reviewed all the evidence, finds the following facts: Claimant was born on March 19, 1956. At the time of the hearing, he was 35 years old. Claimant received a GED in 1982, and stated that while in high school received grades of D's and D minuses. He has received no further education. After leaving high school, claimant began working for Sioux Car Park, where his job duties included parking cars and taking change. He earned minimum wage and worked at Sioux Car Park for approximately six month. Claimant then began working for Jolly time Popcorn, employment he held for approximately six months. At that time, claimant returned to Sioux Car Park where he worked for two years. The next three years, claimant worked for Floyd Valley Pack as a laborer. Claimant then went to work for the Sioux City Hilton as a bellboy for six months. Subsequently, claimant worked as a cement truck driver, and at some point also worked Page 2 for I-GO United Van Lines. During this employment history, claimant had never sustained any work-related injuries. In 1987, claimant began working for the defendant employer, Prince Manufacturing Co. He continues to be employed in the assembly department which consists of the following functions: washing and stamping; packing pistons; placing pistons on rods; inserting rods into tubes; and, testing. Claimant stated that physical movements required in performing these job duties include bending over and picking up various parts. He stated that the parts range from one foot to twelve feet, and the tools used to assemble and test the pistons range from six inches to twelve feet in length. Claimant stated that for the most part, he stood while doing his job. He was not assigned to an assembly line, but rather worked in a department so that his duties varied on a daily basis. On almost all of the jobs, claimant was required to perform a considerable amount of shoving, pushing, pulling, and lifting in excess of 70 pounds. He works primarily at waist or table levels. Heavier parts at the plant require the use of a hoist, which is provided to all employees. Claimant was paid $10.64 per hour plus incentive pay, which was based on output. Claimant stated that he was always paid some form of incentive pay, but that the amounts varied upon how quickly the work was completed. In December of 1987, as claimant was testing hydraulic cylinders at work, he was using two large wrenches to tighten bolts on the cylinder. As he was performing his duties, he felt a sharp pain in his right shoulder, and felt something snap. He told his foreman about the incident, and was sent home. Claimant opted to go to the hospital where he underwent x-rays. He was told by hospital physicians not to return to work for several days. Next, claimant received treatment from R. L. Morgan, M.D., the company physician. Dr. Morgan, after an examination, diagnosed claimant as having a musculoskeletal strain of the right arm with noted muscle spasms in the right neck. He recommended medication and whirlpool treatment. After several trips to Dr. Morgan, claimant was sent to Alan Pechacek, M.D. After an examination which showed that claimant could elevate both shoulders, Dr. Pechacek diagnosed strained muscles of the shoulder, and recommended that claimant continue working with normal activities encouraged. In March of 1988, claimant returned to Dr. Pechacek with continued pain which was concentrated in the trapezius and supraspinatous area. Claimant displayed difficulty with abduction and adduction of the right shoulder. He was given Motrin, and it was recommended that he undertake physical therapy (Employer's Exhibit 1). From April through August of 1988, claimant continued to seek medical treatment from Dr.. Pechacek. On several occasions, he underwent cortisone injections in the shoulder joint, and was given a prescription for Anaprox. In September of 1988, claimant was admitted to Marion Health Center and underwent surgery for the removal of the distal clavicle and a resection of the AC joint (Def. Ex. A-1). Page 3 Claimant returned to work in November of 1988, approximately six weeks after the surgery. Dr. Pechacek noted normal range of motion in the neck and shoulder, but with muscle soreness and tightness. Claimant was to return to work with restrictions of no lifting of more than 45 pounds (Def. Ex. A-1). In December of 1988, Dr. Pechacek noted that claimant was back to work on light duty. An examination revealed minimal tenderness in the operative area as well as tenderness in the right cervical area into the trapezius. On a follow-up visit in January of 1989, it was recommended that claimant continue to use his shoulder and arm as much as possible, and to continue working with a weight restriction of no lifting of more than 45 pounds (Def. Ex. A-1). From February of 1989 through November of 1989, claimant continued to treat with Dr. Pechacek. The medical records indicate that although claimant complained of some discomfort and pain, his shoulder movements were within normal range of motion. Claimant had been continuing to work his regular job (Def. Ex. A- 1). Claimant returned to Dr. Pechacek in May of 1990 and complained of ongoing pain in the right neck, shoulder and arm. Claimant also stated that he had numbness and tingling in two fingers of the right hand. He also complained of shoulder clicking and popping, and stated that work activities involving pushing or pulling with the arm or above shoulder level increased the pain. Upon examination, claimant displayed normal range of motion in the neck and complained of pain upon certain movements of the right shoulder. Although claimant was referred to James Case, M.D., for an EMG and nerve conduction studies, Dr. Case declined to see claimant due to the litigated status of the case (Def. Ex. A-1; A-5). These tests were then conducted by Leonel Herrera, M.D., and were reported to be normal. In October of 1990, claimant again underwent cortisone injections to the shoulder (Def. Ex. A-1). Claimant continued to treat with Dr. Pechacek through December of 1990, with basically the same complaints of pain and tenderness in the shoulder joint area. However, claimant was able to continue working without any restrictions (Jt. Ex. A-1). In February of 1991, claimant returned to Dr. Pechacek whose notes state: "patient returns [early] today because of problems resulting from work earlier today." Dr. Pechacek indicated that claimant had aggravated his previous problem due to heavy lifting, carrying and pushing activities required of his job. Claimant was taken off of work, and it was recommended that he rest his shoulder and arm. Claimant saw Dr. Pechacek through March of 1991, and the final recommendation was to release claimant to return to work on March 8, 1991 with medical restrictions of no lifting of more than 50 pounds, and no lifting of anything longer than 48 inches. Claimant was not to work with his arm at or above shoulder level (Def. Ex. A-1). In April of 1991, Dr. Pechacek assessed claimant's condition: Page 4 As of the moment, the fifty pound lifting restriction is temporary, but unless he improves significantly, it may become permanent. As it regards a permanent impairment, to a large extent, he has a normal range of motion of his shoulder. Based on the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, this would not allow for any permanent impairment. However, impairment does not necessarily correlate with disability, which is a functional determination. He may have some ongoing permanent disability, even though he may not have any permanent impairment. It may be necessary to get a Functional Capacity Evaluation done on Mr. Christensen, particularly if he fails to improve further with time. Such a determination would be helpful in determining his disability and any permanent work restrictions that he might have. (Def. Ex. A-1) Claimant underwent a work evaluation assessment at the Marion Health Center in April 1991. He underwent testing in the following areas: lifting; pushing and pulling; reaching; manipulation and handling; grip strength; pinch strength; endurance and stamina; and a work sample performance. The overall assessment included the following information: Observed Effort: Lifting performance on the BTE Work Simulator and dynamically using Valpar 19 were not consistent and indicate full effort was not given during the lifting performance. Use of accessory muscles were not noted throughout other testing procedures suggesting full effort was not given. Mr. Christensen's effort was difficult to assess as he was always making a joke out of what the therapist would say.... .... Summary and Recommendations: Mr. Christensen is a 35 yr. old, (R) handed male with a diagnosis of (R) shoulder girdle pain per Dr. Pechacek. He currently works at Prince Manufacturing Co. assembling hydraulic cylinders. Based on the results of this evaluation, it is recommended that Mr. Christensen avoid lifting over 30#'s as he reported an increase in symptoms, especially when lifting above eye level. Pushing and pulling should be performed at a maximum level of 20# with his (R) arm and 50#'s with his (L) arm. Reaching and working overhead should also be kept to a minimum if he is required to use his (R) arm as this increased his symptoms, however he did compensate well with his (L) arm. He had difficulty performing a repetitive task requiring use of both arms so repetitive task performance should also be kept to a minimum. (Def. Ex. A-1) Page 5 Claimant also underwent an independent medical evaluation performed by Patrick Luse, D.C. Dr. Luse assessed claimant as having a 10 percent functional impairment to the whole person as a result of objective findings found during the examination (Cl. Ex. 27, p. 6). analysis and conclusions of law The first issue to be addressed is whether claimant sustained injuries on December 8, 1987 (File No. 871523), and February 7, 1991 (File No. 976696). An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(1). Claimant has the burden of proving by a preponderance of the evidence that he received injuries on December 8, 1987 and February 7, 1991, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283; Musselman, 261 Iowa 352, 154 N.W.2d 128. When an aggravation occurs in the performance of an employer's work and a causal connection is established, claimant may recover to the extent of the impairment. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960). It is uncontroverted that claimant was performing his regular job duties at the plant in the manner appropriate to complete his assigned duties. The evidence confirms that claimant timely reported the work injury to his supervisor. Defendants raise no argument which would lead one to believe that claimant was injured anywhere else but on the job in December of 1987. There is no evidence that claimant had ever suffered right shoulder pain in the past, and the medical histories taken by the providers indicate that claimant was Page 6 consistent in telling both his employer and treating physicians about the work accident in December of 1987. The focus appears to be on the injury date of February 7, 1991. Specifically, the question appears to be whether claimant sustained a new injury on this date, or if he aggravated his condition. Either way, since claimant was working for the same employer, the employer pays for any resulting medical treatment received, and depending upon a finding of permanency, the result of the disability due to the February 1991 incident. The evidence submitted shows that claimant had received ongoing medical treatment since the 1987 accident. In fact, when claimant returned in February of 1991 and indicated that he had reinjured his shoulder while performing his regular job duties, claimant was still under the treatment of Dr. Pechacek. Dr. Pechacek addressed this issue in a letter to claimant's attorney dated March 18, 1991: I believe that it is too soon to make a determination of his impairment, as he is still recovering from an episode of reaggravation of his shoulder and arm problems. Once he has recovered and stabilized then it would be appropriate to make this determination. So far as I can determine Mr. Christensen's ongoing problems do relate back to his injury of December 8, 1987. (Def. Ex. A-1) As a result, it is determined that claimant did sustain an injury on December 8, 1987 which arose out of and in the course of his employment. Claimant did not sustain a separate and distinct injury on February 7, 1991. Agency File No. 976696 is dismissed. The next issue to be addressed is whether there is a causal relationship between claimant's injury of December 8, 1987 and his disability. The claimant has the burden of proving by a preponderance of the evidence that the injury of December 8, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to Page 7 be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128. Furthermore, if the available expert testimony is insufficient alone to support a finding of causal connection, such testimony may be coupled with nonexpert testimony to show causation and be sufficient to sustain an award. Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966). Such evidence does not, however, compel an award as a matter of law. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 1974). To establish compensability, the injury need only be a significant factor, not be the only factor causing the claimed disability. Blacksmith v. All-Amnerican, Inc., 290 N.W.2d 348, 354 (Iowa 1980). As stated by Dr. Pechacek in March of 1991, claimant's ongoing problems are related to the injury of December 8, 1987. Dr. Pechacek has treated claimant throughout the healing process, and can be labeled as claimant's treating physician. Likewise, Dr. Pechacek's overall assessment of claimant's condition and disability revolves around his work restrictions of no lifting of greater than 50 pounds and no lifting of objects longer than 48 inches. And, an independent evaluation performed by Dr. Luse also states that there is a causal relationship between claimant's injury in December of 1987 and a functional impairment of 10 percent. Therefore, it is found that claimant's disability is related to the December 8, 1987 work injury. The next issue to be addressed is claimant's industrial disability. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. This is so as impairment and disability are not synonymous. Degree of industrial disability can in fact be much different than the degree of impairment because in the first instance reference is to loss of earning capacity and in the latter to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the Page 8 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 or commissioner 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). At the time of the hearing, claimant was 35 years old. His most stable work history has been with the defendant Prince Manufacturing Company, and claimant has continued to be employed with the company. In fact, claimant continues to do the same job he was performing at the time of the injury. Although the restrictions imposed impact claimant's ability to perform several of the duties which are required of him, the company has accommodated these difficulties. Claimant sought extensive treatment from Dr. Pechacek for the injury. However, most of the visits indicated that claimant was able to perform his regular job duties even though he experienced some pain upon examination. This is certainly to be expected given the nature of the surgery claimant underwent. Claimant has received impairment ratings of 100 percent and 0 percent. He is under restrictions of no lifting of greater than 50 pounds or of objects larger than 48 inches. Claimant is able to satisfactorily perform his duties with these restrictions. The limitations given by the therapist based on the results of claimant's functional capacity evaluation are rejected due to claimant's behavior and probable lack of effort during the examination. Claimant's work history has centered on minimum wage paying jobs, and the best position claimant has held is his current position with Prince Manufacturing Company. He is basically an unskilled laborer, and given his limited transferable skills, will have to rely upon laborer-type positions. Page 9 Claimant's actual earnings have not suffered due to the work injury. He has continued to receive regular bonuses and incentive pay. After considering all of the factors, it is determined that claimant has sustained a 5 percent industrial disability. The next issue to be addressed is claimant's workers' compensation rate. Claimant argues that bonuses should be included in his rate, and based upon a thirteen week earnings record of $5,360.87, he is entitled to a workers' compensation's rate of $245.24 per week. Defendants argue that claimant's bonuses should not be included in his rate, and that based upon a thirteen week earnings record of $4,989.68, his workers' compensation rate is $232.00. The agency has consistently held that a bonus which is paid regularly, even though in varying amounts, is properly included in the determination of rate under Iowa Code section 85.61(12). Marks v. Richmond Gordman, File No. 679369 (App. Dec. June 29, 1988). A bonus which is an integral part of defendants' overall compensation system paid to all employees, which is available to be paid every month, is a regular bonus to be included in the calculation of rate. Lewis v. Dee Zee Manufacturing, File No. 797154 (App. Dec. September 11, 1989). Claimant's testimony established that the bonus was a regular bonus and not an irregular bonus. The bonus was available to all employees who qualified and it was paid each week, as demonstrated in defendants' exhibit I, which shows that claimant received bonuses ranging from $3.56 per week up to $60.14 per week. These bonuses or incentives were based on output of the employees. As a result, it is found that claimant is entitled to a workers' compensation rate based on the inclusion of the incentive pay from September 12, 1987 through December 5, 1987. Therefore, claimant's workers' compensation rate based on his marital status and total exemptions of one equals $245.24 per week. This rate is based upon claimant's gross weekly earnings thirteen weeks prior to the accident of $5,360.80. The July 1987 Guide to Iowa Workers' Compensation Claim Handling booklet was used to determine claimant's rate. The next issue to be addressed is whether claimant is entitled to medical benefits, as governed by Iowa Code section 85.27. Iowa Code section 85.27 provides, in relevant part: The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expense incurred for such services. Page 10 It has been concluded that claimant received an injury which arose out of and in the course of his employment in December 1987. It appears from the record that defendants managed claimant's medical treatment by sending him to Dr. Pechacek. The issues arose as to whether medical treatment provided by Jay Strittholt, M.D., from July 18, 1991 through August 8, 1991, was authorized by defendants. The evidence is inconclusive as to whether Dr. Pechacek referred claimant to Dr. Strittholt or whether claimant's attorney referred claimant to Dr. Strittholt. As a result, claimant has failed to sustain his burden by a preponderance of the evidence that Dr. Strittholt was an authorized physician. Therefore, claimant is responsible for payment of Dr. Strittholt's treatment. order THEREFORE, it is ordered: That defendants shall pay claimant healing period benefits for the time periods he was off work, specifically December 13, 1987 through December 19, 1987; September 22, 1988 through November 13, 1988; and, February 8, 1991 through March 6, 1991, for a total of twelve (12) weeks at the workers' compensation rate of two hundred forty-five and 24/100 dollars ($245.24). That defendants shall pay claimant permanent partial disability benefits for twenty-five (25) weeks at the rate of two hundred forty-five and 24/100 dollars ($245.24), beginning March 7, 1991. That defendants shall pay medical bills and mileage incurred by claimant, as provided for under Iowa Code section 85.27, although claimant is responsible for payment of Dr. Strittholt's bill. That defendants shall pay accrued weekly benefits in a lump sum. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall be given a credit for benefits previously paid. That defendants shall pay the costs of this action, pursuant to rule 343 IAC 4.33. That defendants shall file an activity report upon payment of this award as required by this agency, pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of March, 1992. ________________________________ Page 11 PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Ms. Patricia Wengert Mr Harry H Smith Attorney at Law P O Box 1194 Sioux City IA 51102 Mr Timothy C Hogan Attorney at Law 4th Flr Equitable Bldg Des Moines IA 50309 5-1800 Filed March 17, 1992 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : NEIL CHRISTENSEN, : : Claimant, : : File Nos. 871523 vs. : 976696 : PRINCE MANUFACTURING CO., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1800 Claimant sustained a shoulder injury and underwent surgery for removal of the distal clavicle and a resection of the AC joint. Claimant was given impairment ratings of 10 percent and 0 percent. Restrictions included no lifting of greater than 50 pounds and no lifting of objects longer than 48 inches. Claimant's actual earnings were higher after the injury and the employer accommodated all of claimant's restrictions. Awarded 5% industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER RANDY ROWLEY, Claimant, File No. 871656 vs. A R B I T R A T I O N MARION COUNTY, D E C I S I O N Employer, F I L E D and NOV 13 1989 GREAT AMERICAN INSURANCE, IOWA INDUSTRIAL COMMISSIONER Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, Randy Rowley, against Marion County Landfill, employer, and Great American Insurance, insurance carrier, as a result of an alleged injury sustained on November 17, 1987. This matter comes on for hearing before the deputy industrial commissioner in Des Moines, Iowa on September 14, 1989. The record consists of the testimony of the claimant; Helen Rowley, claimant's wife; Rex Eddleman, Earl Evinger and Jeff Johnson; claimant's exhibits 1-8 and defendants' exhibits B, C, D, E and H. ISSUES The issues the parties set out in the prehearing report for resolution are: 1. Whether the claimant's disability is causally connected to his November 17, 1987 injury; and, 2. The nature and extent of claimant's disability. REVIEW OF THE EVIDENCE Claimant testified he is a 1971 high school graduate and has no formal post high school education. Claimant said he helped his parents farm upon graduating from high school up to 1983 or 1984 when his parents became divorced and sold the farm. Claimant described this farm as a 300 acre grain and livestock operation. Claimant indicated he also drove a school bus at $5.00 per hour between 1971 and 1985. Claimant said he has also worked the last 12 years at the Marion County Racetrack making $60.00 per night. Claimant described his work as watching the back shute (straight away) for any accidents. Claimant said if there is an accident, he notifies the proper personnel on his radio for help. Claimant emphasized that all he does is stand and operate the radio. He is currently performing this job 22 nights in a year. Claimant testified to other job history which basically involved $5.00 to $6.00 per hour jobs with OK Tire Shop, mowing a development with a large tractor and watching the developers' corn. Claimant indicated he had a knee operation four to five years ago with no permanency and said it did not result in any neck or back injury. Claimant emphasized that he has had no other injury prior to November 17, 1987, or any work limitation, lifting problem or serious diseases. Claimant testified he began working for the defendant employer July 13, 1987, as a bulldozer operator at a county landfill making $6.30 per hour. Claimant was making $7.42 per hour when he last worked on November 17, 1987. Claimant emphasized he has never had such a good job as this county job plus it paid his health insurance and provided for vacations. Claimant said he ran the caterpillar at the landfill one half a day hauling dirt so he could bury the garbage later in the day. He said he operated the caterpillar most of the day. Claimant described how this metal track bulldozer caused his low back and right hip pain while operating it over rocks, dips and washouts. Claimant said his back started hurting in September of 1987 and got so bad that he stopped working November 17, 1987 and sought medical help. Claimant described his bulldozer as being very light and requiring 1,000 pounds of lead on the back end to balance out the weight; otherwise the bucket would cause it to bounce. Claimant indicated he would have to scrape and bump the dirt walls to loosen the dirt. Claimant said he would rock the bulldozer until the dirt came loose. Claimant said his bulldozer seat was solid and not an air seat. Claimant related the various medical treatments he received. Claimant said he communicated with his employer in July of 1988 as to certain medical restrictions and stated he was going to try to get a different county job. Claimant stated he felt he could operate the road grader and would try to drive a truck if it had an air seat. Claimant related the county terminated him on July 20, 1988, because he did not work his entire probationary period. Claimant proclaimed he begged for a job since this was the best job he ever had. Claimant said he was told he was fired because he missed too many days work. Claimant explained he missed no work except for his back injury. Claimant said he went on a diet and lost 27 pounds but that did not help his back. Claimant related he was scheduled for back surgery January 3, 1989, but he was notified by the insurance carrier that they would not pay if Jerome Bashara, M.D., did the surgery. Claimant said his back hurts 80 percent of the time and at times brings tears to his eyes. Claimant emphasized the pain is worse now than when he last worked on November 17, 1987. Claimant acknowledged he did not search for work until August or September 1988, after Marion County said there was no work. Claimant then anticipated surgery by Dr. Bashara so he indicated he did not really start looking for work until February 24, 1989, at the local job service. Claimant related the various,job suggestions he received or inquiries he made but indicated he could not do these jobs or needed retraining or the county would not hire because they knew he was hurt. Claimant revealed he did not tell job service of his back injury because he thought this would prevent him from getting a job. Claimant said that he was active in basketball, baseball, camping and boating prior to November 17, 1987, but he can no longer participate in these activities now. Claimant said he called a Mr. Burger at the Iowa State Department of Rehabilitation, but Burger never called him back. Claimant admitted he is a volunteer fire fighter for the City of Knoxville and goes on the calls directly to the scene. He said his job entails running the gages and radio and watches the water pressure. Claimant acknowledged he filed a civil rights disability discrimination complaint against Marion County and they turned it down. Claimant indicated Marion County could not give him work because he was disabled. Earl Evinger testified he is a self-employed land developer who clears land so homes can be built. He said he usually does not build the homes. Evinger said he has known claimant 20 plus years. He stated claimant worked for him running a tractor and mowing before claimant began working for Marion County in July of 1987. Evinger emphasized claimant was a good worker and evidenced no medical problem. Evinger acknowledged he has observed a physical change in claimant. Evinger acknowledged he is a friend of claimant's and that they eat breakfast together two to three times a week. He said claimant is not a complainer. Evinger related claimant asked him if he had any work to do this summer and he did not have any. Evinger indicated he knew claimant wore a brace. Evinger said he would not want claimant to hurt himself running a bulldozer or wrestling cattle. He said he would call claimant if there was work claimant could do for him. Rex Eddleman testified he has been an assistant loan officer at Community National Bank, Knoxville, Iowa for the last 20 years. He said he has known claimant since claimant was a small child. Eddleman said he was a loan officer for claimant's parents for many years. He emphasized claimant was mainly the operator of the family farm with others helping. He acknowledged that claimant's parents became divorced and sold the family farm in 1984-85. Eddleman said claimant is honest and appeared to be a hard worker. He does not recall any health problems with the claimant prior to 1987. He acknowledged he has noticed a physical deterioration in the claimant since November of 1987. Eddleman observed claimant's walking and moving and indicated it appears claimant is having difficulty getting around. Eddleman said claimant does not discuss his condition with him but claimant told him his back hurts. He emphasized that if claimant could do a job and had intelligence, he would have no hesitancy to hire claimant. He said claimant has a good reputation. Eddleman said claimant's brother filed for bankruptcy resulting from business relationships with his father and claimant. Eddleman said claimant is paying his own portion of the debt which has $5,000 remaining instead of taking bankruptcy. Helen Rowley, claimant's wife, testified claimant had no health problems prior to November 1987. Mrs. Rowley said claimant was angry when fired. She indicated that before his November 1987 injury, claimant was active in basketball and baseball. Mrs. Rowley testified that since November of 1987, claimant has changed a lot. She indicated he has no desire to do physical activity and she has a hard time sleeping with him. She emphasized claimant does not like to take medicine as it changes his mentality. Mrs. Rowley said claimant now has a low self-esteem and low energy. Mrs. Rowley testified that she works for Rolscreen in Pella. She said Rolscreen would not hire claimant due to his injury. She indicated claimant could not keep pace with the work. Jeff Johnson, a vocational rehabilitation expert with Resource Opportunities, testified that as to the claimant's case, he tries actual job placement. Johnson said he first contacted claimant August 25, 1989. He said claimant is on the low average physically and could not do hard or heavy type work. As to transferable skills, Johnson said claimant is on the high end of the low end. Johnson said that claimant has a good level of motivation and Johnson is determined to find claimant a job and will continue to search until told not to. Johnson feels claimant is employable on a full time basis. He said claimant told him he would like to go back to work. Johnson admitted that injured workers are victims of discrimination today and it is hard for an injured person to get a job. Johnson said his job is to overcome this resistance to hiring. Johnson acknowledged that the defendant employer is afraid to hire claimant due to future liability and a feeling that the workers' compensation rates may go up. Johnson said it is hard to find a job for which claimant would be eligible. Dr. S. Randy Winston, M.D., first thought on January 26, 1988, that claimant had a L3-4 level herniated disc but recommended further tests. On March 3, 1988, Dr. Winston ruled out a nerve root compression per myelogram. He also suggested, "With respect to his job, I would feel that if he has an alternative to bouncing around on heavy equipment, that he explore that opportunity for the future." (Claimant's Exhibit 1, page 6) On March 8, 1988, Dr. Winston wrote: Some of the discomfort may be due to the irritation of the contrast but I think that is unlikely at this point and suggest either work hardening, long-term exercise program and obviously a change in his work description, as I indicated to you in my communication of March 3. (Cl. Ex. 1, p. 7) On August 30, 1988, Dr. Winston wrote: It is my opinion that Randy Rowley sustained a permanent impairment of 5% as a result of his repetitive work operating a bulldozer for Marion County Iowa. It is very possible that due to recurrent pain which cannot be surgically remedied that he will need to be retrained to do other than what he has done formerly. I would feel that those activities such as stretching, bending, twisting, reaching, lifting in excess of 50 pounds all should be avoided in this patient. (Cl. Ex. 1, p. 9) Then on July 14, 1989, Dr. Winston wrote: The patient's MRI at this time shows perhaps some bulging a little bit to the left which is the asymmetric side at the L4-5 level. The anterior/posterior dimension of the canal appears to be somewhat narrow but as you may remember, we did myelography on this patient in February and this did not indicate any evidence of significant stenosis. Frankly, I am not certain what is operative here. He has done a good job with his exercise program and weight reduction bringing him down considerably from that 270 pounds which he was when we initially saw him. I assume that this is still related to his incident but I am not certain whether or not any type of surgical intervention is indicated. I am obtaining an EMG and some vascular studies and he may need to have an epidural injection. (Cl. Ex. 1, p. 10) Then on August 1, 1989, Dr. Winston wrote: We saw Mr. Rowley in the office in follow-up on July 31, 1989 and his arterial studies and EMG studies are negative. He continues to be disabled by his low back pain and tingling of his feet, etc. I can find nothing in my evaluation which would allow me to make a surgical recommendation in his case. I do believe this man is a "straight shooter" and the only recommendation I would make to him would be to try and get an opinion from the Low Back Center up in the Minneapolis-St. Paul area. (Cl. Ex. 1, p. 11) Mercy's Department of Radiology report indicated: IMPRESSION: 1. CONGENITAL NARROW SPINAL CANAL IN THE AP DIMENSION AS DESCRIBED. 2. L4-L5 BROADBASED PROTRUSION/HERNIATION EXTENDING TO THE LEFT TO MILDLY INVOLVE LEFT INTERVERTEBRAL FORAMEN. QUESTIONABLE CLINICAL SIGNIFICANCE IN PATIENT WITH RIGHT LOWER EXTREMITY SYMPTOMS. 3. MILD DISK DEGENERATION INVOLVING L3-4, L4-5 AND L5-S1. (Cl. Ex. 1, p. 31) Claimant's medical records indicate he went through four weeks of treatment at the Mercy Hospital Medical Center in November of 1988. On September 30, 1988, Dr. Earl J. McKeever, M.D., of the Mater Clinic wrote: It was my impression at that time that the patient had a herniated nucleus pulposus L4-5, right. Referral to Orthopedic Specialist Bashara has been made. He will be seen by Dr. Bashara within the next week. An EMG of the upper extremities was done and was normal. CT scan of the lumbosacral spine showed spinal stenosis and impingement on the L4-5 spinal foramen. Mr. Rowley has not reached maximum medical improvement and I believe he is now probably a candidate for surgery. This will be evaluated and determined by Orthopedist Bashara. Prognosis for this patient is at this time uncertain. (Cl. Ex. 3, p. 8) On October 6, 1988, Dr. Jerome Bashara, M.D., wrote: A CT scan was reviewed from the Knoxville Area Community Hospital dated 9-27-88. The L3-4 disc appears normal. The L4-5 disc is abnormal. Moderate bulging, centrally and to the right. The L5-S1 disc does not appear to be involved with any abnormality. Diagnosis: Herniated lumbar disc, L4-5 central and right. Failure of conservative treatment. (Cl. Ex. 4, p. 1) Dr. Bashara scheduled claimant for a lumbar laminectomy on January 4, 1989. On January 12, 1989, James L. Blessman, M.D., of the Mercy Hospital Pain Center wrote: PLAN: I would expect this patient may benefit by either trigger point or epidural steroid injection. I discussed this with the patient and he would prefer to wait on these at the present time. I also expect he would benefit by some anti-inflammatory medications and some antidepressants. He is having some sleep dysfunction in addition to his pain and some early development of depression. He was agreeable to starting on both of these medications and they will be started today. (Cl. Ex. 6, p. 32) On January 26, 1989, Dr. Blessman wrote: IMPRESSION: The patient clearly has lumbar disc syndrome with involvement at probably more.than 1 level. 2) Exogenous obesity which is exacerbating his pain. PLAN: I discussed with the patient in detail the epidural steroid injection protocol as well as it's risks and benefits and contrasted this with the trigger point injection. At this time, I do not believe he would benefit significantly from trigger point injection as I did not elicit such a point on physical examination. It appears that he would probably benefit more from an epidural steroid injection due to the nature of his pathology. At this time, he would like to discuss the matter with his family including his wife regarding other modalities or possibly continuing the conservative modalities he has undertaken for his continued back pain. (Cl. Ex. 6, pp. 33 & 34) APPLICABLE LAW The claimant has the burden of proving by a preponderance of the evidence that the injury of November 17, 1987 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). As a claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability" to be computed in the terms of percentages of the total physical and mental ability of a normal man." The opinion of the supreme court in Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, cited with approval a decision of the industrial commissioner for the following proposition: Disability * * * as defined by the Compensation Act means industrial disability, although functional disability is an element to be considered . . . In determining industrial disability, consideration may be given to the injured employee's age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. For example, 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). Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. ANALYSIS Claimant is a 36 year old individual who has below average intelligence and has no real transferable skills. It appeared that the.equipment provided for the claimant to operate was not as suitable as it could be for the type of work for which it was used. The greater weight of medical evidence indicates claimant's disability was a result of the bouncing around while operating the bulldozer for the defendant-employer. Dr. Randy Winston opined that claimant sustained a permanent impairment of five percent as a result of his repetitive work in operating a bulldozer for defendant employer. Dr. Winston indicated stretching, bending, twisting, reaching and lifting in excess of 50 pounds should be avoided by this claimant. Dr. Winston did not recommend surgery and wrote that claimant should be retrained since the claimant's recurrent pain cannot be surgically remedied. The medical evidence is confusing as to whether claimant has herniated nucleus pulposus L4-5 right as Dr. McKeever thought or some bulging at L4-5 level as Dr. Winston thought or a herniated lumbar disc L4-5 central and right diagnosed by Dr. Jerome Bashara, M.D., or a lumbar disc syndrome with involvement at more than one level as indicated by Dr. James Blessman of the Mercy Pain Center. One. fact is certain. Claimant has not recovered from his injury. Dr. Bashara is the only specialist who recommended surgery, which is the only remaining procedure not performed on the claimant. Claimant has had all types of conservative treatment. The defendant insurance company prevented claimant having surgery by Dr. Bashara. The insurance company has never offered to pay for claimant's surgery. It appears at first that defendants desired more conservative treatment before any surgery, particularly since Dr. Winston felt that surgery was not the answer. We are now several months from claimant's last scheduled surgery and claimant has not improved and the insurance carrier is denying any causal connection of this disability to the claimant's alleged November 17, 1987 injury. Dr. McKeever, in September of 1988, indicated claimant was a constituent for surgery, but deferred to orthopedic specialist Dr. Bashara whom claimant was going to see within a week. Dr. McKeever did not think claimant had reached maximum healing. (Cl. Ex. 3, p. 8) It would appear that the risk of surgery would be worth the cost to see if claimant's back pain and condition can be improved. The undersigned finds claimant's current disability is causally connected to his injury on November 17, 1987. The undersigned finds claimant has a five percent impairment to his body as a whole as a result of claimant's November 17, 1987 injury. Defendants contend claimant's healing period ended July 20, 1988, the date defendant employer terminated claimant. Claimant contends he was still healing as evidence of claimant being referred to the Mercy Hospital Pain Clinic. If improvement was not considered or probable, why would claimant be sent through this four week program? Claimant was released from the pain clinic February 2, 1989, by Dr. James Blessman of the Mercy Pain Clinic with a return to work on February 24, 1989, diagnoses. The undersigned finds claimant's healing period ended February 23, 1989, inclusive. Defendants hired a vocational rehabilitation consultant, a Mr. Johnson, to try to find claimant a job. Johnson acknowledged claimant is motivated but with his condition and restriction, he has not been successful and does not appear optimistic. It seems Johnson contacted defendant employer who "is afraid to hire claimant due to future liability and a feeling their workers' compensation rates may go up." Defendant must not be aware of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980), which holds a refusal to give any sort of work to claimant after he suffers his affliction, may justify an award of disability. Defendant's fears are unfounded. Defendant could substantially reduce its liability by giving this motivated claimant work. It would appear advisable that surgery be provided by defendant insurance carrier for claimant. It appears claimant is willing to try anything. Claimant's healing period began November 17, 1987, up to and including February 23, 1989. Claimant presently is not working. Defendants' vocational rehabilitation expert reaffirmed what is a well known fact that injured workers are victims of discrimination and it is harder for an injured worker to go get a job. Considering the claimant's age, education, motivation, inability to engage in employment for which claimant is fitted, claimant's length of healing period, present medical condition and all those other factors that are considered in determining industrial disability, claimant has a 50 percent industrial disability. FINDINGS OF FACT 1. Claimant incurred a work related lumbar injury on November 17, 1987. 2. Claimant's disability is the result of his work related injury on November 17, 1987. 3. Claimant was released to return to work on February 24, 1989. 4. Claimant has an impairment to his body as a whole as a result of his November 17, 1987 injury. 5. Claimant incurred a healing period beginning November 17, 1987 up to and including February 23, 1989, at the rate of $211.18 per week. 6. Defendant employer terminated claimant's job because claimant missed too much work due to his November 17, 1987 injury. 7. The vocational rehabilitation consultant, who was hired by defendant insurance carrier to find claimant a job, called defendant employer as to rehiring claimant. The employer refused to consider rehiring claimant because of future liability and fear that its workers' compensation rate would go up. CONCLUSIONS OF LAW Claimant received a lumbar injury that arose out of and in the course of his employment on November 17, 1987. Claimant's disability is causally connected to his lumbar back injury on November 17, 1987. Claimant's healing period began November 17, 1987 up to and including February 23, 1989. Defendant employer refused to rehire claimant who was injured at work. Claimant was terminated by defendant employer from his job and refused to consider rehiring claimant upon inquiry from the defendant insurance company's vocational rehabilitation expert. Claimant has a 50 percent industrial disability. ORDER THEREFORE, IT IS ORDERED: That defendants shall pay unto claimant healing period benefits at the rate of two hundred eleven and 18/100 dollars ($211.18) for the period beginning November 17, 1987 up to and including February 23, 1989, which totals sixty-six point four-two-nine (66.429) weeks. That defendants shall pay unto claimant two hundred fifty (250) weeks of permanent partial disability benefits at the rate of two hundred eleven and 18/100 dollars ($211.18) beginning February 24, 1989. That defendants shall pay the accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. That defendants shall pay costs of this action pursuant to Division of Industrial Services Rule 343-4.33 and defendants shall file activity reports upon payment of this award as required by this agency pursuant to Division of Industrial Services Rules 343-3.1. Signed and filed this 13th day of November, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Donald G. Beattie Attorney at Law 204 8th St. SE Altoona IA 50009 Mr. Jon K. Swanson Attorney at Law 900 Des Moines Bldg. Des Moines IA 50309 5-1108; 5-1803 Filed November 13, 1989 BERNARD J. O'MALLEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER RANDY ROWLEY, Claimant, File No. 871656 vs. A R B I T R A T I 0 N MARION COUNTY, D E C I S I 0 N Employer, and GREAT AMERICAN INSURANCE, Insurance Carrier, Defendants. 5-1108 Found claimant's disability causally connected to his injury. 5-1803 Employer refused to rehire claimant because of future liability and fear that its workers' compensation rate would go up. 5-1803 Claimant awarded 50 percent industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN ROBINSON, Claimant, File No. 872000 vs. A R B I T R A T I O N HOLIDAY EXPRESS CORP., D E C I S I O N Employer, and F I L E D LIBERTY MUTUAL INSURANCE, OCT 25 1989 Insurance Carrier, INDUSTRIAL SERVICES Defendants. INTRODUCTION This is a proceeding in arbitration brought by the claimant, John Robinson, against Holiday Express Corporation, employer, and Liberty Mutual Insurance Carrier, defendants, to recover benefits as a result of an alleged injury occurring on December 6, 1987. This matter came on for a hearing before the deputy industrial commissioner in Ft. Dodge, Iowa on September 5, 1989. The record consists of the testimony of the claimant, Stanley Thorpe and Dan L. Rogers; claimant's exhibits 1 and 2 and defendants' exhibits A, with 13 sub parts. At the beginning of the hearing, the parties agreed that this action should be an arbitration action and not a review-reopening as filed. The claimant was allowed to amend his petition to one of arbitration. ISSUES The issues set out in the prehearing report for resolution are: 1. Whether the claimant's injury arose out of and in the course of his employment; 2. Whether claimant's disability is casually connected to his injury; and. 3. The nature and extent of claimant's disability and the rate of weekly compensation if liability is found. REVIEW OF THE EVIDENCE Claimant testified that he went through his junior year and part of his senior year of high school and then quit to work on his parents' farm. Claimant said he was a below average student. Claimant stated he was starting to have an alcohol problem at that time. Claimant emphasized his last alcoholic drink was January 13, 1984. Claimant said he has never obtained a GED. Claimant testified that he basically worked at manual labor jobs after leaving high school up to the time he was hired by the defendant employer in September 1986. Claimant said he passed the defendant employer's preemployment physical with no restrictions. Claimant stated he first took a truck driving course at Iowa Lakes Community College and then was hired full time by defendant employer. Claimant testified he was paid 17 cents a mile plus medical benefits for his family, meals and subsistence pay. $25.00 out of every 500 miles was tax free and no taxes were withheld from this $25.00. Claimant said he drove for defendant employer nationwide in 48 states. He indicated the defendant employer was a good employer and kept the trucks operating all the time. In August 1987, claimant said he quit defendant employer to work for another trucking company that paid more money. Claimant emphasized at that time he had no injuries or prostate problems. Claimant quit this employer due to the fact that the company's truck he was driving was seized. He said the employer had debt problems and a bad relationship was developing. Claimant stated he rejoined the defendant employer November 5, 1987, as a long distance driver. He did not need to take another physical. Claimant testified that while driving his loaded truck to Chicago on Interest 80 on December 6, 1987, he encountered several bumps. He said that his airseat bottomed out after hitting a bump and it felt like his "guts exploded". Claimant said he felt a crazy sensation and stopped his truck down the road. He said he passed out two times. Claimant described the truck he was driving as a piece of junk. He said it broke down several times in this haul from Los Angeles to Chicago. Claimant said his airseat had a button to control the weight, but it had bottomed out before. Claimant said he started to urinate blood and had a burning sensation. Claimant testified he made a call and was told to call the hospital at Davenport, Iowa. Claimant obtained a prescription and then continued to drive to Chicago. Claimant said he eventually returned to his home base and sought medical treatment with Jerry D. Dawson, M.D., who referred claimant to an urologist. Claimant described the various medical procedures performed on him which involved checking the prostate gland, running tubes through the penis, dilation of the penis and massaging the prostate gland through the rectum. Claimant said he is not presently being treated. Claimant said he has been off work since December 10, 1987, except for a period of March 11, 1988 to May 18, 1988, when he tried to return to work. Claimant said that he again began urinating chunks of blood and his cramps and pain began coming back during this March to May 1988 period. Claimant stated he wanted to return to work for defendant employer at another non-truck driving job like dispatcher or safety inspector, but he was told that there was no other job for which they would hire him. Claimant said the defendant employer told him he had been hired only as a truck driver. Claimant emphasized he would like to drive a truck or operate heavy equipment but is not able to do so due to his condition. Claimant said long car rides and bumps bother him. Claimant said he has never had a desk job and emphasized he could not do heavy manual work without it causing him to urinate blood again. Claimant acknowledged that he did not contact vocational rehabilitation until his benefits were stopped in September 1988. Claimant said he grew up riding horses. He said he also worked for three years as a ranch manager in the early 1980's in Kansas and Texas during which time he rode horses daily. Claimant admitted that he worked for no employer longer than one year except for 18 months at a Colorado job. Claimant said he tried to work for NAPA and filed an application. He also filed with Job Service. Claimant said Job Service told him they would not send him to any place with his medical condition. Claimant admitted he just started last week for his GED at Iowa Lakes Community College but emphasized he took three to four months preparatory classes. He said he had to determine his scholastic ability to see if college courses could also be taken. Stanley Thorpe testified he is a professional vocational specialist and sales representative for Iowa Lakes Community College. He indicated he tries to find employment for the handicap and is familiar with the job market. He indicated he had been contacted by the claimant's attorney to see if he could find claimant a job. Mr. Thorpe indicated he gave claimant several tests and reviewed claimant's medical records. Mr. Thorpe emphasized he was familiar with a malingerer and has encountered such people. He opined claimant was not a malingerer. He also concluded claimant is not employable because of too many physical problems. He contends claimant would have no consistency in a 40 hour week and that an employee is expected to work 40 hour week without a long illness or time off. He said he could not place claimant in a competitive job. Thorpe admitted that he personally did not conduct any test. He also admitted that he did not verify the information claimant told him as to what he can and cannot do. He did emphasize he personally observed claimant. Thorpe indicated claimant is adverse to education as exhibited by claimant's feeling as to academia. Thorpe admitted he has never been licensed in Iowa as a psychologist examiner. He said he usually doesn't administer the test in the client's home, but in claimant's situation, bad weather, no client phone and time restraints required home testing. Thorpe also acknowledged that 80 percent of his time is involved in coordination of college workshop and as a sales representation for Iowa Lakes Community College. Thorpe emphasized his concern was claimant's ability and transferable skills and not any psychological problem. Dan L. Rogers testified he was a licensed clinical psychologist. He indicated he first met claimant on August 16, 1989, at the defendant's attorney's request. He met claimant the second time at the Northwest Iowa Medical Center for a test on August 19, 1989. Rogers stated he took claimant's history and administered various tests. Rogers said claimant related to him chaos in claimant's marriage, especially child rearing and his wife being a Jehovah Witness and he being a Catholic. He stated claimant was concerned about financial matters and was becoming depressed; that it was more a stress matter. He said claimant indicated claimant's wife made claimant mad and he didn't understand why. Rogers said claimant tested as follows: IQ 89, spelling 5th grade and math 4th grade. Rogers concluded claimant is slightly below average for learning in college. Rogers indicated claimant expressed physical complaints, which showed lesser concern for them due to his underlying problems. Rogers further concluded claimant does not have depression or anxiety but is preoccupied with pain without physical findings. Rogers said claimant has a passive aggressive personality disorder developed over time as an adolescent and not the result of a trauma. Rogers opined that truck driving would not be a good occupation for the claimant. He emphasized that claimant's present reaction or condition is from the past and not the truck driving incident. Rogers admitted he doesn't attempt to find jobs for people and has never placed a person in a competitive job. Rogers testified that prostatism would not affect a claimant's employment. He emphasized that it is immaterial that claimant did not have these current symptoms before the alleged accident of December 6, 1987. He said the length of time claimant was driving or whether he even drove a truck is not important. Rogers admitted he did not see claimant's personal file or did he know that a doctor told claimant not to go back to work as a truck driver as this would adversely affect claimant. Robert L. Mendenhall, M.D., urologic surgeon, testified by way of deposition on April 29, 1989, that he first saw claimant in his clinic December 16, 1987, and has seen him several times with the last visit being around April 19, 1989. Dr. Mendenhall indicated claimant's symptoms have been similar and treatment has involved antibiotics, anti inflammatory medicine and prostatic massage. When Dr. Mendenhall was asked what the massage consists of and what the purpose of it is, he answered: A. He has always appeared to have what we call a nonbacterial prostatitis, which is one -- it's a gland that's consistent with congestion. The prostate gland is really an organ that has millions of little glands in it. It may be if you think of.a tree. All the little leaves on a tree are glands that drain into branches and finally some ducts and into the channel and this sort of thing. When it gets swollen and inflamed, it gets congested. The massaging or by intercourse, either way, is an attempt to drain some of these secretions and some of the fluids from the prostate and relieve some of the swelling and congestion. On the massage it's not something you use often, but it does help some people. So at this point we're going to try several successive weeks of prostate massage and see if we can symptomatically help. That's what was done two weeks ago, probably last week, and will be done for the next few weeks. (Mendenhall Deposition; Claimant Exhibit 1 Page 6 & 7). Dr. Mendenhall was asked and answered as follows: Q. What are the established or medically known causes of a nonbacterial prostatitis? A. Can be etiopathic, which means it can occur for no particular reason. I think probably some type of irritation, whether such a situation as riding on heavy equipment, something that would cause a chronic irritation to the perineum or the area between the scrotum and the rectum is probably most common. Perhaps a few people who are celibate, perhaps not having sex, this may potentially cause some increased congestion. But this may not be routine. I think most generally we see people that have had some activity such as the truck drivers, the farmers, traveling salesmen, this sort of thing most common. (Mendenhall Dep. Cl. Ex. 1 p. 10). Dr. Mendenhall said he performed a circumcision which was not related to claimant's prostate problem, and a cystoscopy and urethral dilation both connected to claimant's prostate problem, in January of 1988. Dr. Mendenhall testified that he thought claimant could return to work around the first week of March 1988, but he did not know if in fact claimant returned to work. Dr. Mendenhall acknowledged that he was concerned at some point in claimant's treatment as to claimant having a psychological overlay and recommended claimant's seek a second opinion at the University of Iowa Hospitals. Dr. Mendenhall indicated that claimant has chronic prostatitis and he did not know when claimant would recover. Dr. Mendenhall was asked: Q. Dr. Mendenhall, as I understand it you were contacted on or about that date by Mr. Kevin Cook who was in some fashion related to the Workers' Compensation carrier and at that time he wanted to know whether the prostatitis was work-related. What did you tell Mr. Cook at that time, sir? A. Well, I felt that certainly driving heavy equipment such as a truck could exacerbate and potentially cause the prostatitis. Q. Dr. Mendenhall, is it your opinion to a reasonable degree of medical certainty that it is very likely that the prostatitis is work-related to the trauma of driving a major truck? A. I think that there's a real possibility that that could cause it. Q. And when we're talking about possibilities and probabilities, perhaps by way of definition I could use this analogy. If it's greater than 50 percent lawyers often talks in terms of probabilities. If it's less than 50 percent they'll talk in terms of possibilities. Using that reference do you feel that the truck driving is very likely work -- or excuse me -- the prostatitis is very likely work-related to the trauma of driving a truck? A. I would say that driving a truck is a very potential irritative action to prostatitis and a possible, possible causative. Is it probable in this individual? If you look for some activity that they are doing that could be related to the prostatitis, I would say in this individual it would probably be -- or likely be related to the truck driving. If I had to choose it. Now, the other one situation here was the situation of a urethral stricture. And that may or may not have contributed in the overview also. Q. Doctor, would you agree with me that the truck driving certainly aggravated any condition that was preexisting as it relates to the prostatitis? A. I would say yes. Q. Doctor, I note from your deposition here today it's obviously quite difficult to determine what the future holds for John. Would you recommend that he stay away from operating heavy equipment and from such activities as driving a truck for his gainful employment? A. Certainly as long as he continues to have symptoms consistent with prostatitis. And I don't mean just clinic -- just subjectively but also objectively. When I've examined his prostate and looked at prostate secretions, he continues to have an increased number of white cells. Until that totally resolves and he seems to have a significant period of lack of symptoms and subjectively feeling well and no clinical evidence of prostatitis, I would recommend that staying away from heavy equipment riding and operating heavy equipment would be indicated. Q. At what point will you -- let me ask it this way. Today as you sit here do you know whether or not John Robinson as a result of the chronic prostatitis has an injury that's permanent in nature? A. Well, by the definition of it being chronic prostatitis I think that it does not give you a feeling of a definitive amount of time in regard to how long he's going to have these symptoms. I think it varies by the individual and I could not put a determination of when he could expect to no longer have those symptoms. (Mendenhall Dep: Cl. Ex. 1 pp. 26-29). Dr. Mendenhall testified that he recommended and preferred claimant seek some type of employment where he didn't put himself at risk with that sort of perineal trauma and aggravation. On January 6, 1988, Dr. Mendenhall wrote: I have seen Mr. John Robinson since December 16, 1987. He had sudden onset of testicular, inguinal, and suprapubic discomfort. He also had an element of hematospermia and evaluation of his urine found multiple red cells, occasional white cell. The prostate was boggy and expressed prostatic secretions showed an element of red cells and white cells. Expressed prostatic secretion urine for culture and sensitivity showed no growth. He has gotten better with antibiotic and Ibuprofen therapy. In summary, I feel he had a work-related nonbacterial prostatitis caused by driving heavy equipment such as his truck and is work-related. He will be undergoing a cystoscopic exam in correlation his symptoms of prostatitis. (Defendants Exhibit. A). On August 31, 1988, Dr. Mendenhall wrote: This is regarding Mr. John Robinson, who has been under my care since the turn of the new year. He has developed a case of chronic recurrent prostatitis, at this point when seen a couple of weeks ago was over the evidence of prostatitis. Regardless, driving a truck would put a patient with chronic recurrent prostatitis at significant risk for recurrence of his prostatitis and this has already been this young man's history since I have followed him. In summary, he has chronic recurrent prostatitis, seems to be doing well at this time. I have discharged him from my follow up unless his symptoms recur. Regardless, driving a truck will put him at significant risk for recurrence. (Def. Ex. A). On December 22, 1988, Dr. Mendenhall wrote: I am writing in regards to Mr. John Robinson, Holiday Express Corp, WC 478-080977. Mr. Robinson has the history of chronic prostatitis. It does not appear to be active at this time. He does however, have occasional perineal discomfort which ideally can be controlled with Ibuprofen. I do think it would be good for him to see a psychiatrist to help him cope with these symptoms. To the best of my knowledge, this has not been done at this time. In regards to the truck driving, I think it certainly carries a potential to exacerbate his history of chronic prostatitis. (Def. Ex. A). Stephen L. Piercy, M.D., a urology specialist, testified by way of a deposition of June 27, 1989, that the only time he saw claimant was January 26, 1988. He said claimant was referred by Liberty Mutual Insurance Company. Dr. Piercy was asked and answered as follows: Q. "Most likely related to driving a truck." Can you state to a reasonable degree of medical certainty that the condition he had was most likely related to driving a truck? A. Well, I think that driving a truck may -- well any kind activity, driving a tractor or anything can -- if you've got prostatitis, can make it flare up. I don't know if I could say absolutely that that was the direct cause of it, you know what I'm saying. Why don't all truck drivers get prostatitis? I don't know. Q. Yes, yes. A. I've had farmers who have had prostatitis. Whenever they go to planting time, they bounce around on the tractor and it flares up. Q. But that's because they already have it? A. Well, if they weren't bouncing on the tractor, would they have gotten it? I don't know, you know what I'm saying. Q. Let me ask-- A. It could be that bouncing around in his truck made it worse or caused it. I don't know. It--You know what I'm saying. We don't really know what causes prostatitis, and we know that bouncing around makes it worse. (Cl. Ex. 2 pp. 11-12). On January 26, 1988, Dr. Piercy wrote: I feel that Mr. Robinson has had prostatitis, most likely related to driving a truck. He has improved on antibiotics per Dr. Mendenhall. He still has several white cells in the expressed prostatic secretions and the prostate is still slightly spongy. He is also healing well from a circumcision, which is unrelated. (Def. Ex. A). Bernard Fallon, M.D., Department of Urology at the University of Iowa, wrote on December 30, 1988: In regards to the etiology of his chronic prostatitis, I would find it very difficult to state what this is. Certainly, it is felt that there is a higher incidence of chronic prostatitis in people who, in large amounts of time, drive, whether this be in cars, trucks, or in farm vehicles. There are many people, however, who develop chronic prostatitis in other walks of life as well. (Def. Ex. A). On January 25, 1988, Dr. Fallon wrote: In answer to your question #2, I cannot agree that his prostatitis was caused as a truck driver. I think that Dr. Mendenhall might be a better source for answers to these questions, as in his note of December 21, 1987 he states that Mr. Robinson is a truck driver, and that he thinks, very likely, that Mr. Robinson's prostatitis is work related to the trauma of driving a major truck. (Def. Ex. A). Dr. Fallon suggested in his December 1988 letter that claimant might see a psychiatrist who might enable claimant to better deal with his problem of chronic prostatitis. In his January 25, 1989 letter he reiterated his belief claimant might benefit from psychiatric care, but in answer to claimant's attorney's letter, he stated: "It is difficult to adamantly state that he requires psychiatric care." "Holy Family Hospital Records on January 13, 1988 reflect: "Operative procedure: 1. Cystoscopy 2. Urethral dilatation 3. Circumcision." (Def. Ex. A) Claimant's log records indicate he drove 12,192 miles for the five weeks immediately proceeding December 6, 1987 injury. Prior to his December 6, 1987 injury, claimant had only worked for the defendant employer since his last employment for five weeks and one day. (Def. Ex. A) APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on December 6, 1987, which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). "An injury occurs in the course of the employment when it is within the period of employment at a place the employee may reasonably be, and while he is doing his work or something incidental to it." Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of December 6, 1987, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation section 555(17)a. Our supreme court has stated many times that a claimant may recover for a work connected aggravation of a preexisting condition. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934). See also Auxier v. Woodward State Hospital Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960). An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Iowa Code section 85.34(1) provides that if an employee has suffered a personal injury causing permanent partial disability, the employer shall pay compensation for a healing period from the day of the injury until (1) the employee returns,to work; or (2) it is medically indicated that significant improvement from the injury is not anticipated; or (3) until the employee is medically capable of returning to substantially similar employment. A healing period may be interrupted by a return to work. Riesselmann v. Carroll Health Center, 3 Iowa Industrial Commissioner Reports 209 (Appeal Decision 1982). This 33 year old claimant has only had manual labor jobs since he left high school during the middle of his senior year. He has not obtained a GED but appears to be attempting to get it. It appears it is taking claimant longer than normal to obtain it and he has not pursued it as eagerly as he could. Claimant has had many problems during his life beginning in early childhood. He has come from an alcoholic family and suffered abuse from his father. His marriage has had many difficulties. On December 6, 1987, claimant was a full time employee driving a truck for defendant employer. He was experiencing no physical problems, illness or injuries prior to that date. Claimant describes the rough bouncing trip on Interstate 80 on December 6, 1987, while hauling a load for defendant employer to Chicago. Claimant said that on one particular road bump his airseat bottomed out. He felt like his "guts exploded." Claimant began feeling pain and started urinating some blood. Claimant was diagnosed as having prostatitis. There is no other explainable reason why claimant occurred the onset of what is now chronic prostatitis other than this December 6, 1987 injury. There is considerable medical testimony in evidence regarding the causes of or irritation of prostatitis. The greater weight of the medical evidence shows claimant's nonbacterial prostatitis resulted from claimant's driving his truck while working for defendant employer. There is testimony as to whether claimant's prostatitis was actually caused by his truck driving or whether it triggered it or caused the condition to flare up thereby aggravating a dormant condition. The undersigned believes it is an academic question as it applies to claimant as to whether claimant's truck driving was a cause or etiology of his chronic prostatitis or whether the latent condition was aggravated by claimant's truck driving. In either case, the claimant's condition involving his prostatitis was caused by his truck driving injury on December 6, 1987. The greater weight of medical testimony overwhelming supports the conclusion that claimant's prostatitis at the very least was a dormant latent condition that was triggered and materially aggravated by his truck driving injury on December 6, 1987. It is obvious that claimant should not drive a truck for a living any longer. The medical evidence shows that claimant's chronic prostatitis may last for as long claimant's lifetime. Dr. Mendenhall testified he did not know when claimant could recover, but emphasized that: "driving a truck will put him at significant risk for reoccurrence." The undersigned finds that claimant was injured on December 6, 1987, while driving a truck for defendant employer that arose out of and in the course of his employment. The undersigned further finds that claimant's latent dormant prostatitis was triggered and materially aggravated by his December 6, 1987, injury causing claimant's present chronic prostatitis. Claimant's evaluation shows he presently has below average intelligence. It seems he is not enthusiastic for acquiring or seeking formal education. Claimant's childhood and home environment contributes to this. Claimant is young. He presently has no transferable skills except truck driving. His income over his working life has been minimal. If claimant finds a job he most likely would make minimum wage. It is certain that based on the present status of claimant's medical history, he should not return to truck driving or any job that could cause his prostatitis to flare up. It appears a sedentary job is what claimant should seek. He has never had a desk type job. Heavy lifting or exertion can also cause a flare of prostatitis. Claimant has not eagerly looked for another job. It is understandable with his condition. An employer does not want a person who can not reasonably expect to work 40 hours a week on a consistent basis. Mr. Thorpe felt claimant was not employable. He did not make any calls or contacts on behalf of claimant to see whether in fact there may be employers to take claimant. The undersigned cannot accept Mr. Rogers' theories or conclusions involving this claimant. Defendants and Rogers contend that the reason claimant cannot drive a truck is because his psychological qualms from the past will be magnified by long hauls in a truck thinking of his wife and his dependency on others. Rogers agrees that claimant can no longer drive a truck, but claims it is for psychological reasons and not prostatitis. Rogers is not a medical doctor and his medical conclusions are given no weight. Defendants agree that if claimant's psychological problems are triggered by his injury, then defendants take claimant as is. There was a recommendation by Dr. Fallon that claimant seek psychiatric help as this may help with claimant's prostatitis. Pursuant to a letter from claimant's attorney, Dr. Fallon of the University of Iowa said he wasn't adamant about this recommendation. Dr. Mendenhall was concerned about some psychological overlay with claimant and recommended claimant seek a second opinion at the University of Iowa Hospitals. Although claimant sought a second opinion, he has not further pursued this even though the undersigned believes some psychiatric help may contribute to claimant's recovery, at least in part. In any case, defendants take claimant with all his underlying problems which have been triggered or materially aggravated by his December 6, 1987 injury. Claimant's psychological problems, if any, prior to December 6, 1987, were not affecting claimant's ability to work full time as truck driver. The undersigned must consider the claimant's current status and not speculate as to what future medical services might solve. The undersigned finds the claimant has a permanent partial disability to his body as whole. Claimant was off work December 11, 1987, to and including March 10 and May 18, 1988 to the present. Dr. Mendenhall testified that he thought on February 24, 1988, that claimant: "can return to work in one to two weeks." Claimant incurred his first healing period beginning December 11, 1987 to and including March 10, 1988 (13 weeks). Claimant had a reoccurrence of his problems and was off for a second healing period beginning May 5, 1988. Dr. Mendenhall, on August 31, 1988, said he discharged claimant unless the symptoms reoccur. Claimant's second healing period begins May 18, 1988 to and including August 31, 1988 (15.143 weeks). Claimant inquired of defendant employer his willingness to work for the defendant at another job like a safety inspector or dispatcher. Claimant stated defendant had only truck driving jobs available. Some might consider this a refusal to hire or give employment to the claimant. It is obvious defendant employer could substantially help in increasing the earning capacity of this claimant. Taking into consideration claimant's age, education, motivation, inability to engage in the employment of which he is fitted because of injury, his earnings prior to and after the injury, his physical, emotional and intellectual qualifications, potential rehabilitation, work experience prior to and after his injury, the severity and location of the injury, and his medical prior to injury, after the injury, and presently, the undersigned finds that claimant has a 50 percent industrial disability. The last issue for resolution is the determination of the rate at which claimant will be paid his weekly benefits. The defendant was paid 31 1/7 weeks of benefits at the weekly rate of $147.13. The evidence shows claimant last worked for the defendant employer prior to his December 6, 1987 injury for 5 weeks and 1 day. Claimant was paid 17 cents a mile. For the five weeks before his injury, claimant drove 12,192 miles. Dividing this by 17 equals $717.18. Dividing this figure by 5 equals $143.00 gross per week. The parties stipulated as to the existence of 2 exemptions. Claimant's weekly benefit rate is $100.99. There was testimony that for every 500 miles driven by the claimant, $25.00 of his 17 cents per mile compensation was tax free and nothing was withheld therefrom. This evidence was not very clear, but it appears that $25.00 is included in the 17 cents per mile and not an additional amount. FINDINGS OF FACT 1. Claimant was injured while driving a truck for defendant employer on December 6, 1987. 2. Claimant has a nonbacterial chronic prostatitis condition as a result of his December 6, 1987 injury. 3. Claimant has no high school diploma or equivalent GED. 4. Claimant's work history has mainly involved manual labor jobs. 5. Claimant has below average intelligence. 6. Claimant is no longer able to drive a truck for a living without putting himself at risk for reoccurrence of prostatitis. 7. Claimant has not worked since May 17, 1988. 8. Claimant is willing to return to work for defendant employer at a non truck driving job. 9. Claimant's prostate gland showed no evidence of prostatitis before December 6, 1987. 10. That said gland had a existing dormant prostatitis condition which was lit up, triggered and materially aggravated by claimant's being bounced around in a truck he was driving as a employee of the defendant employer on December 6, 1987. 11. Claimant has a reduction in earning capacity. 12. Claimant has incurred a healing period beginning December 11, 1987, to and including March 10, 1988 amounting to 13 weeks and a second healing period beginning May 18, 1988 to and including August 31, 1988 amounting to 15.143 weeks, both totaling 28.143 weeks. 13. Claimant's gross weekly wages averages $143.00 per week during his last employment with defendant employer. 14. Claimant's weekly benefit rate is $100.99 including two exemptions. CONCLUSIONS OF LAW Claimant's injury on December 6, 1987, arose out of and in the course of claimant's employment. The dormant latent prostatitis condition of claimant was lit up, triggered and materially aggravated by claimant's work related injury on December 6, 1987 causing claimant to have a nonbacterial prostatitis condition. Claimant incurred a healing period beginning December 11, 1987 to and including March 10, 1988 amounting to 13 weeks and a second healing period beginning May 18, 1988 to and including August 31, 1988 amounting to 15.143 weeks, both totaling 28.143 weeks payable at a weekly benefit rate of $100.99. Claimant has a 50 percent industrial disability. ORDER THEREFORE, it is ordered: That defendant shall pay unto claimant healing period benefits at the rate of one hundred and 99/100 dollars ($100.99) for the periods beginning December 11, 1987 to and including March 10, 1988 amounting to thirteen (13) weeks and a period beginning May 18, 1988 to and including August 31, 1988 amounting to fifteen point one four three weeks (15.143), both healing periods totaling twenty eight point one four three weeks (28.143). That defendants shall pay unto claimant two hundred fifty (250) weeks of permanent partial disability benefits at the rate of one hundred and 99/100 dollars ($100.99) beginning September 1, 1988. That defendants shall pay accrued weekly benefits in lump sum and shall receive credit against the award for weekly benefits previously paid. The defendants previously paid thirty one and one/seventh weeks (31 1/7) of benefits at the rate of one hundred forty seven and 13/100 dollars ($147.13). That defendants shall pay interest on benefits awarded as set forth in Iowa Code section 85.30. That defendants shall pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendants shall file an activity report upon payment of this award as required by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 25th day of October, 1989. BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Joseph L. Fitzgibbons Attorney at Law 108 N. Seventh St. P.O. Box 496 . Estherville, Iowa 51334 Mr. Tito Trevino Attorney at Law 503 Snell Bldg. P.O. Box 1680 Ft. Dodge, Iowa 50501 1100-1108-2206 1803-53000 Filed October 25, 1989 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER JOHN ROBINSON, Claimant, File No. 872000 vs. HOLIDAY EXPRESS CORP., A R B I T R A T I 0 N Employer, D E C I S I 0 N and LIBERTY MUTUAL INSURANCE, Insurance Carrier, Defendants. 1100 Found claimant's injury arose out of and in the course of his employment. 1108 Found claimant's disability causally connected to his injury. 2206 Found claimant's dormant, latent, nonbacterial prostatitis condition was lit up, triggered and materially aggravated by claimant's being bounced around in a truck he was driving as an employee of the defendant employer. 1108 Medical testimony opined that nonbacterial prostatitis is often found in men who drive trucks, tractors or similar type of equipment in their work. Once condition becomes active, it can last a lifetime. Medical recommendation to claimant was to stop driving a truck. 1803 Claimant awarded 50 percent industrial disability. Claimant has not worked since end of healing period. Employer has not considered alternative jobs claimant could do and is willing to do, because employer "originally hired claimant as a truck driver and for no other reason." Claimant is 33 years old, has not graduated from high school and has no GED. 53000 Rate determined to be $100.99.