BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : PEG NORLIN, : : Claimant, : : vs. : : File No. 889857 BOBALEE, INC., : : A P P E A L Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed February 4, 1994 is affirmed and is adopted as the final agency action in this case. Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of October, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Steve Hamilton Attorney at Law P.O. Box l88 Storm Lake, Iowa 50588 Mr. Frank T. Harrison Attorney at Law 2700 Grand Ave., Ste 111 Des Moines, Iowa 50312 1109.50; 1803.1; 1803; 2209; 2900 Filed October 18, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : PEG NORLIN, : : Claimant, : : vs. : : File No. 889857 BOBALEE, INC., : : A P P E A L Employer, : : D E C I S I O N and : : THE HARTFORD, : : Insurance Carrier, : Defendants. : _________________________________________________________________ 1108.50; 1803.1; 1803; 2209; 2900 Claimant's bilateral thoracic outlet syndrome found to causally relate to a specific injury in which claimant had caught her right ring finger in vise with pulling of the right upper extremity and per claimant's testimony her whole trunk into the left side. David Roos, M.D., a renown thoracic and vascular surgeon who treated claimant, supported causation. Claimant had asserted cumulative injury in claimant's original notice and petition where claimant's symptoms and conditions manifested themselves over time and subsequent to the original work incident which occurred on claimant's second day at work. Claimant's condition not found to be a cumulative injury but rather a condition resulting from a specific work incident which condition manifested itself over time and likely was aggravated by claimant's continuing work activities after the incident. That claimant had pled cumulative trauma in her original notice and petition was not found to be prejudicial to defendants in that defendants had notice of the medical conditions for which claimant sought compensation. Claimant's thoracic outlet syndrome bilaterally and resulting restrictions including a five pound lifting restriction and restrictions from heavy or strenuous work with the upper extremities including keyboarding and typing as well as restrictions on pushing and pulling and lifting over and working overhead or forward with the arms found to establish a permanent industrial disability of 50 percent of the body as a whole. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ PEGGY NORLIN, Claimant, vs. File No. 889857 BOBALEE HYDRAULICS, INC., A R B I T R A T I O N Employer, D E C I S I O N and HARTFORD INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by the claimant, Peggy Norlin, against her employer, Bobalee Hydraulics Inc., and its insurance carrier, Hartford Insurance, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on June 22, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner at Fort Dodge, Iowa, on December 13, 1993. A first report of injury has been filed. The record consists of the testimony of claimant and of joint exhibits 1 through 31 and defendants' exhibits A through E. ISSUES Pursuant to the hearing report and the oral stipulations of the parties at hearing, the parties agree to the following: 1. An employer-employee relationship existed between claimant and Bobalee Hydraulics on June 22, 1988; 2. Claimant was single and entitled to two exemptions on June 22, 1988 and had a gross weekly wage of $255 resulting in a weekly compensation rate of $164.16; 3. Claimant did receive an injury arising out of and in the course of her employment on June 22, 1988; 4. Defendants are entitled to a credit for 163.714 weeks of benefits paid claimant at the stipulated rate; 5. Claimant seeks healing period or temporary total disability benefits intermittently from June 22, 1988 through November 8, 1993; and 6. Medical fees were fair and reasonable fees for treatment received and treatment received was reasonable and necessary treatment for the condition treated. Page 2 Issues remaining to be decided are: 1. Whether a causal relationship existed between the injury and claimed disability; 2. Whether claimant is entitled to additional temporary total or healing period disability and the extent of any such entitlement; 3. The nature and extent of any permanent disability entitlement, including the question of whether claimant has a scheduled member disability or an industrial disability to the body as a whole; and 4. Whether claimant is entitled to payment of certain medical costs as causally related to her work injury and as costs defendants authorized. FINDINGS OF FACT The deputy, having heard the testimony and considered the evidence, finds: Claimant is a 42-year-old woman who completed tenth grade and obtained a GED in approximately 1973. She has also taken approximately one semester of community college courses in commercial art. Claimant does not believe that she currently has the physical capacities to work as a commercial artist. Claimant began work with the employer on June 21, 1988. Prior to that claimant had had a variety of skilled and unskilled jobs ranging from waitressing, factory assembly work, construction work, janitorial services and school bus driving and meat packing. Claimant also worked briefly as a lead worker in a meat packing plant. Claimant's salary at Bobalee Hydraulics was $4.50 per hour when injured. Employees work nine-hour days on a five or six day work week basis. Claimant had generally earned from $4.25 to $6.00 per hour in her pre-Bobalee employments. On June 22, 1988, claimant's second day of work at Bobalee, claimant caught her right third finger in a vise. She reported that the vise twisted and pulled her right arm through to the next station and that she had pain that "went all the way over to the left hand" as well as in the back, neck and arm. James Gannon, M.D., examined claimant on the date of injury. He took a history of the right third finger having been caught in a vise with contusions and abrasions on the lower arm and numbness and aching of the distal third finger. His impression was of a probable muscle tear of the right lower biceps as a result of the extremity having been pulled into the vise and rotated. Dr. Gannon again saw claimant on June 23, 1988. He noted that she then had improved right hand motion with increased right elbow discoloration and with a restriction of extension. Claimant was tender over the right hand joint and tender posterially and slightly medial to the right shoulder. On June 27, 1988, Dr. Gannon reported that claimant had more movement Page 3 and strength in the shoulder and quite good wrist movement. Claimant returned to work on June 30, 1988, apparently to the same duties she had on June 22, 1988. Claimant next saw Dr. Gannon on September 22, 1988 with complaints in the [left] arm. Dr. Gannon diagnosed probable left carpal tunnel syndrome. On October 5, 1988, Dr. Gannon stated that claimant had "got better with a different job and Motrin." He released her to return to work on apparently the same machine she had worked at from her start date through September 22, 1988. Dr. Gannon, nonetheless, referred claimant to William Follows, M.D. Dr. Follows initially saw claimant on October 28, 1988. He recorded a three month history of pain and numbness in the left hand initially in the third, fourth and fifth fingers but at that point also involving the index finger and thumb which problems activity aggravated. On examination claimant had good range of motion of the neck; good strength and reflexes in the left upper extremity but for decreased sensation in all but the ring finger. Claimant had a positive Phalen's sign and a slightly positive Tinel's sign. Claimant was also tender over the ulnar nerve and the cubital tunnel with positive Tinel's sign there as well. Dr. Follows' initial impression was of left carpal tunnel syndrome with possible cubital tunnel [syndrome]. Dr. Follows referred claimant to Sant M. S. Hayreh, M.D., for electromyography studies. On October 3, 1988, Dr. Hayreh opined that per electromyography studies, claimant had normal left median and ulnar nerve activity. Dr. Follows is an orthopedic surgeon; Dr. Hayreh, a neurologist. On November 17, 1988, Dr. Follows referred claimant to Thomas F. DeBartolo, M.D., an orthopedic hand specialist for evaluation as regard to whether an ulnar nerve transposition was warranted. On December 2, 1988, Dr. DeBartolo reported finding no localized pathology relative to claimant's left upper extremity. He felt there was no "hard" motor or sensory involvement of the left ulnar nerve and no evidence of localized pathology in either claimant's neck or shoulder. He "fairly strongly recommended" against upper extremity surgery. Per Drs. DeBartolo and Hayreh, claimant underwent a Minnesota Multiphasic Personality Inventory and psychiatric evaluation with M. Peltan, Ph.D., on December 23, 1988. On January 5, 1989, Dr. Peltan interpreted claimant's MMPI as being valid without evidence of serious acute psychopathology or personality disorder. He believed claimant might have low self-esteem and chronic vague, very mild dysphoria. He believed there was a slight possibility that claimant had a low level depression which exacerbated her pain experience. On January 11, 1989, Scott B. Neff, D.O., an orthopedic surgeon, examined claimant. On examination, Dr. Neff found claimant to be exquisitely tender with palpation of the cubital tunnel and to have an essentially negative Roos sign Page 4 for thoracic outlet syndrome as well as a negative Phalen's sign at the wrist for distribution into the median nerve. Dr. Neff expressly disagreed with Dr. Follows' diagnosis of carpal tunnel syndrome and diagnosed cubital tunnel syndrome. He recommend decompression and possible transposition of the ulnar nerve. Dr. Neff did not believe claimant could return to heavy work activity as of that date. He believed claimant's symptoms and problems related to repetitive elbow, hand, and wrist activity. Dr. Neff referred claimant to Alexander Matthews, M.D., a thoracic and vascular surgeon. Dr. Matthews also saw claimant on January 11, 1989 and diagnosed "very marked" left thoracic outlet compression syndrome. On February 6, 1989, Dr. Matthews performed a transaxillary resection of claimant's left first rib. On March 15, 1989, Dr. Matthews released claimant to return to work on March 20, 1989. On March 29, 1989, Dr. Matthews opined that claimant had no permanent partial impairment on account of her [left] thoracic outlet decompression surgery. He characterized claimant as asymptomatic with excellent grip strength bilaterally and a negative Roos test. On April 3, 1989, claimant reported to Dr. Matthews that her left fourth and fifth fingers tingled and were "numb" after returning to work washing lights, equipment and walls. Dr. Matthews then placed claimant off work until April 7, 1989. Claimant again saw Dr. Neff on June 9, 1989. Claimant then gave a history of returning to work with ladder climbing, wall scrubbing and other activities which required her right arm to be "in the air a lot" especially in the first two weeks subsequent to returning to work. Claimant then reported numbness and tingling of the right long, ring and fifth fingers. She had a positive Tinel's sign at the right elbow and a negative Phalen's sign. Dr. Neff recommended that claimant be restricted from work at or above shoulder level. On July 10, 1989, Dr. Neff reported that a MRI of claimant's cervical spine was essentially normal. He then believed claimant was developing ulnar nerve entrapment at the cubital tunnel bilaterally. He did not recommend any surgical treatment of that condition until electromyography studies were positive. Claimant was referred to the University of Iowa Hospitals and Clinics. W. John Sharp, M.D., vascular surgeon, reported on December 15, 1989 that electromyographic studies, nerve conduction studies and ulnar somatosensory evoked potentials were all normal. He indicated that as of December 14, 1989, claimant was having increasing numbness over her entire [left] hand, arm and shoulder and had started to have similar symptoms on the right. Dr. Sharp reported that a physiologic cause for claimant's symptoms could not be found. He did not think claimant had thoracic outlet syndrome; nevertheless, he offered claimant a referral to David B. Roos, M.D., a national expert on thoracic outlet syndrome. Robert T. Sessions, M.D., apparently also a vascular surgeon, reviewed a letter and clinical data on claimant which claimant's attorney had supplied him. Based on that Page 5 information, Dr. Sessions opined that there was "a good chance that a significant portion of [claimant's] problem may be recurrent thoracic outlet syndrome." David B. Roos, M.D., initially saw claimant on or about April 8, 1991. Claimant in April 1991 had complaints of neck and shoulder pain, headaches and of both arms feeling dead. Dr. Roos took claimant off work and prescribed physical therapy for her. Dr. Roos' impression by report of April 24, 1991 was of cervical and shoulder strain injuries resulting in chronic muscle spasm and bilateral thoracic outlet syndrome from muscle compression of the brachial plexus with the left symptomatically worse than the right. The doctor opined that claimant's jerking injury [in June 1988] no doubt affected her neck, shoulders, and bilateral upper extremities and was a direct cause of persistent symptoms since then. The doctor further stated that claimant apparently had developed scar tissue from her February 1989 left thoracic outlet surgery which tissue had trapped the C8 and T1 nerves of the left brachial plexus causing ulnar nerve pain and paresthesias with radiation down the left arm which resulted in numbness, tingling, coldness and weakness of that arm and hand. He stated claimant had also developed biceps tendinitis from chronic muscle spasms which were causing pain in the anterior shoulder area. Dr. Roos opined that claimant was permanently disabled from job activities requiring heavy use of her arms and hands bilaterally with frequent reaching, lifting and pulling motions. On August 28, 1991, Dr. Roos recommended that claimant have a second surgery on the left; he further opined that claimant might require surgery on the right. On March 5, 1992, Dr. Roos performed a left transaxillary neurolysis of the T-1 nerve of the plexus, apical pleurectomy, selective T-2 ganglion thoracic sympathectomy, axillary fat pedicle interposition, pleural flap coverage of the posterior stump of the first rib after resection of long stump and chest tube drainage as well as a left supraclavicular neurolysis of entire brachial plexus with anterior scalenectomy. In short, he cleaned out additional tissue, muscle and scar tissue in the brachial plexus area and placed a fatty deposit in the area as a means of controlling reformation of scar tissue. On November 3, 1992, Dr. Roos performed a right transaxillary decompression of the thoracic outlet with first rib resection and a right supraclavicular total anterior scalenectomy with neurolysis of the brachial plexus. Dr. Roos is located in Denver, Colorado. Defendants authorized claimant's treatment with Dr. Roos including her surgeries. Claimant had to travel from her home in Iowa to Denver, Colorado for her treatment and surgeries. After both surgeries Dr. Roos reported claimant's condition to, David Crippin, M.D., claimant's family physician in Storm Lake, Iowa. After both surgeries, Dr. Roos referred claimant back to Dr. Crippin for follow-up care relative to Page 6 her condition. Claimant saw Dr. Crippin variously from June 23, 1989 onward. Given that the various specialists to which defendants referred claimant was significant distances from her home, claimant reasonably sought primary care for her condition from Dr. Crippin. Dr. Roos again saw claimant on March 18, 1993. His impression then was of persistent pain and muscle spasms in the neck, shoulders, and arms with intention tremor of the hands all as a result of claimant's original injuries. Dr. Roos then restricted claimant from heavy or strenuous use of the upper extremities and from lifting greater than five pounds on an occasional basis. He felt claimant should avoid frequent reaching up or outward as well as pushing or pulling of objects. He opined that claimant probably would not be able to return to the type of work she was doing when injured as he felt she was permanently restricted to light to moderate activities. In his March report, Dr. Roos opined that it was too early for assignation of a permanent partial impairment rating. He estimated that the rating would be near 15 percent "permanent partial disability" for "both upper extremities together." Dr. Roos last examined claimant on October 26, 1993. On October 8, 1993, he reported that 15 percent would be a "working unit" as regard permanent partial impairment related to claimant's condition. John A. Vaubel, M.D., board certified ophthalmologist, initially saw claimant on May 5, 1992 for symptoms of reduced vision and droopiness of the left eyelid. Dr. Vaubel diagnosed claimant as having Horner's syndrome on the left side with left lid ptosis and a visual field defect, that is, relative scotomas or blind spots in the left eye resulting in complete contraction of the visual field. In his deposition of December 11, 1993, Dr. Vaubel opined that claimant's visual field defect and claimant's central visual acuity defect both related to her thoracic outlet condition either directly to the condition or as a result of the number of surgeries claimant had had on account of the condition. Dr. Vaubel agreed that claimant had an apparent family history of bilateral retinal detachment which condition can cause visual field defects. He noted the no retinal detachment was found on claimant's examinations, however. CONCLUSIONS OF LAW Our first concern is whether a causal relationship exists between claimant's injury and claimed disability. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Page 7 Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Defendants make much ado about whether claimant's condition relates to the June 22, 1988 injury or whether claimant's symptoms are such that claimant sustained a cumulative injury at some later date. Defendants also make much ado over whether claimant's symptoms and her surgeries were actually necessitated by a work-related thoracic outlet condition. In both instances, defendants assertions are ill-founded. Dr. David Roos, M.D., a nationally recognized vascular and thoracic surgeon whom defendants authorized to treat claimant, has opined that claimant's conditions relate back to the original June 1988 injury. That claimant's symptoms manifested themselves over time and that claimant's condition itself likely was aggravated by claimant's continuing to work after the initial insult to her right finger and upper body on June 22, 1988 is insufficient to break the causal chain. Often the full range of symptoms and conditions resulting from a single incident injury are not fully manifest until some time subsequent to that injury. While it may have been less than artful for claimant to characterize her condition as a cumulative injury, a term that has a specific meaning in workers' compensation law which meaning is not applicable in this case, defendants in no matter are prejudiced by that lack of artfulness. Defendants were fully aware of the conditions which claimant had developed; the conditions for which they had authorized treatment; and of the conditions on which claimant based her claim. Claimant has established a causal relationship between her work-injury of June 22, 1988 and her claimed healing period and permanent partial disability resulting from her bilateral thoracic outlet syndrome and its symptoms and sequela. We consider the question of claimant's healing period benefit entitlement. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can Page 8 be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Claimant returned to work on June 30, 1988 and then was off work intermittently from October 1988 until April 1991 when Dr. Roos again took her off work. Claimant has not returned to work with either the employer or any other employer since April 1991. Claimant's medical restrictions make it impossible for her to return to substantially similar employment. Hence, claimant's healing period runs to that point where she achieved maximum medical recovery. Dr. Roos last examined claimant on October 26, 1993. In his last report of November 8, 1993 he opined claimant had a permanent partial impairment of 15 percent. That impairment rating, obviously, relates to claimant's condition as of her last examination. Claimant is entitled to healing period benefits for those times claimant was actually off work on account of her condition or on account of treatment and recovery related to her condition from June 22, 1988 through October 26, 1993. Defendants receive credit for benefits previously paid. We reach the question of permanent partial disability. An injury to a scheduled member may, because of after- effects or compensatory change, result in permanent impairment of the body as a whole. Such impairment may in turn be the basis for a rating of industrial disability. It is the anatomical situs of the permanent injury or impairment which determines whether the schedules in section 85.34(2)(a) - (t) are applied. Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). When disability is found in the shoulder, a body as a whole situation may exist. Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 38 N.W.2d 161 (1949). In Nazarenus v. Oscar Mayer & Co., II Iowa Industrial Commissioner Report 281 (App. 1982), a torn rotator cuff was found to cause disability to the body as a whole. Since 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 Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term `disability' to mean `industrial disability' or loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to Page 9 the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Defendants initially contend that claimant's injury is a scheduled member disability and not a body as a whole disability to be compensated industrially. We disagree. Claimant's surgical sites are within her trunk and her neck area and not within either upper extremity. Claimant has medically confirmed muscle spasms relating to her condition in her neck and her shoulders. Claimant's restriction on reaching upward or outward involves physical activity within the shoulder girdle itself and not merely within the hands or arms. Claimant has established a body as a whole injury for which she is entitled to industrial compensation. We consider the question of the extent of claimant's permanent partial industrial disability. Dr. Roos has indicated that claimant has a 15 percent permanent partial impairment relating to both upper extremities. While it is uncertain whether the doctor's rating represents a combined value for the upper extremities or conversion of upper extremity ratings into a body as a whole rating, it appears that Dr. Roos believes claimant has a moderate permanent partial impairment related to her condition. Dr. Roos additionally has substantially restricted claimant. He stated she should lift no more than five pounds on an occasional basis and should not attempt repetitive heavy or strenuous use of the upper extremities. This restriction includes a restriction on typing and keyboarding. That restriction will preclude claimant from many light or moderate level positions for which she might otherwise be suited. Likewise, claimant's restrictions on use of her extremities and on pushing and pulling make it impossible for her to return to work with the employer or to substantially similar work or to many of the factory assembly, driving and construction duties that she had performed previously. Claimant's visual field defect and central visual acuity defect also likely would play a role in preventing her from returning to jobs involving driving. Despite these limitations, claimant is at a relatively young age and appears capable of retraining. She has obtained a GED and has taken community college courses. Overall, her pre-injury earnings range from $4.25 to $6.50 per hour. Claimant apparently has not sought vocational rehabilitation assistance and defendants have not provided such assistance. In that respect, neither claimant nor defendants appears to have been well motivated to assist claimant in returning to Page 10 gainful employment. Claimant's restrictions and physical impairment will no doubt make any return to gainful employment difficult. The record does not suggest that she is wholly precluded from doing so, however. Likewise, the record does not suggest that she could not return to employments, albeit, fewer than were available prior to her injury, at which she could earn hourly wages at or near those she earned in the heavier work she did prior to her injury. When all the above is considered, claimant is found to have established permanent partial industrial disability of 50 percent of the body as a whole. We reach the question of claimant's entitlement to payment of medical costs incurred with Dr. Crippin and Dr. Vaubel and to payment of medical mileage costs. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). When an employer-designated physician sees fit to refer a claimant to another physician, the designated physician acts as the defendants' agent. Claimant need not seek further authorization from defendants for such referral and care. See Kittrell v. Allen Memorial Hospital, 34 Biennial Report Iowa Industrial Commissioner 164 (1979) (Industrial Commissioner affirmed.) Where evidence reveals claimant's condition improves as a result of care from a physician whom defendants did not authorize, that improvement not only helps claimant but may also mitigate the employers' ultimate liability. That mitigation, when considered with other relevant factors, may result in a finding that the nonauthorized care was reasonable and necessary treatment as section 85.27 contemplates. Rittgers v. United Parcel Service, III Iowa Industrial Commissioner Report 210 (1983). For reasons set forth in the above findings of fact, claimant has established entitlement to payment for medical care Dr. Crippin provided. Dr. Vauble has related claimant's vision problems to her bilateral thoracic outlet syndrome or her surgeries related to those conditions or both. The record does not reflect that defendants had otherwise authorized care for claimant relative to her vision problems. She apparently saw Dr. Vauble on referral from Dr. Crippin. Care related to claimant's vision problems was reasonable and necessary care. In the absence of the employer having authorized a physician for such care, claimant is entitled to payment of medical costs incurred with Dr. Vauble. Page 11 Section 85.27 requires that defendants appropriately reimburse claimant for transportation expenses incurred while seeking medical care. Claimant is entitled to reimbursement of mileage costs incurred from November 16, 1992 through November 26, 1993 as noted on the mileage statement filed with the hearing report. ORDER THEREFORE, IT IS ORDERED: Defendants pay claimant permanent partial disability for an additional two hundred fifty (250) weeks at the rate of one hundred sixty-four and 16/100 dollars ($164.16) with those payments to commence on October 27, 1993. Defendants pay claimant healing period benefits at the rate of one hundred sixty-four and 16/100 dollars ($164.16) from June 22, 1988 through October 26, 1993 for those dates when claimant was actually off work on account of her injury. Defendants receive credit for amounts previously paid. Defendants pay any accrued amounts in a lump sum. Defendants pay claimant medical expenses incurred with Dr. Crippin and Dr. Vauble and actually relating to claimant's June 22, 1988 injury. Defendants pay claimant mileage expenses as set forth in the document labeled, "Mileage: 11/16/92 to 11/26/93" submitted with the parties' hearing report. Defendants pay interest pursuant to section 85.30 as amended. Defendants pay costs pursuant to rule 343 IAC 4.33. Defendants file claim activity reports as the agency orders. Signed and filed this ____ day of February, 1994. ______________________________ HELENJEAN M. WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Steve Hamilton Attorney at Law P.O. Box 188 Storm Lake, IA 50588 Mr. Frank Harrison Page 12 Attorney at Law 2700 Grand Ave, Ste. 111 Des Moines, IA 50312 1108.50; 1803.1; 1803; 2209; 2900. Filed February 4, 1994 Helenjean M. Walleser BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ PEGGY NORLIN, Claimant, vs. File No. 889857 BOBALEE HYDRAULICS, INC., A R B I T R A T I O N Employer, D E C I S I O N and HARTFORD INSURANCE, Insurance Carrier, Defendants. ___________________________________________________________ 1108.50; 1803.1; 1803; 2209; 2900. Claimant's bilateral thoracic outlet syndrome found to causally relate to a specific injury in which claimant had caught her right ring finger in vise with pulling of the right upper extremity and per claimant's testimony her whole trunk into the left side. David Roos, M.D., a renown thoracic and vascular surgeon who treated claimant, supported causation. Claimant had asserted cumulative injury in claimant's original notice and petition where claimant's symptoms and conditions manifested themselves over time and subsequent to the original work incident which occurred on claimant's second day at work. Claimant's condition not found to be a cumulative injury but rather a condition resulting from a specific work incident which condition manifested itself over time and likely was aggravated by claimant's continuing work activities after the incident. That claimant had pled cumulative trauma in her original notice and petition was not found to be prejudicial to defendants in that defendants had notice of the medical conditions for which claimant sought compensation. Claimant's thoracic outlet syndrome bilaterally and resulting restrictions including a five pound lifting restriction and restrictions from heavy or strenuous work with the upper extremities including keyboarding and typing as well as restrictions on pushing and pulling and lifting over and working overhead or forward with the arms found to establish a permanent industrial disability of 50 percent of the body as a whole. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : JERRY RIPPEY, : : Claimant, : : vs. : : File No. 889863 UNIVERSAL ENGINEERING, : : A P P E A L Employer, : : D E C I S I O N and : : FIDELITY & CASUALTY, : : Insurance Carrier, : Defendants. : _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. ISSUE Defendants state the following issue on appeal: "Whether there is substantial evidence in the record to support the Deputy's conclusion." FINDINGS OF FACT The findings of fact contained in the proposed agency decision filed February 17, 1994 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. Segments designated by brackets ([ ]) indicate language that is in addition to the language of the proposed agency decision. Claimant is a 45-year-old high school graduate who did not do very well in high school. Claimant began working for defendant employer in 1971 and last actually worked for the company on August 8, 1988. Claimant actually retained his status with the company as an employee until April 1991, at which time he received a termination letter. At the time of claimant's injury he was making $11.75 per hour. Claimant had no other formal post-high school education and actually learned his skills Page 2 on the job. Claimant is divorced and has two children and stated that he is a custodial parent for one child and his ex-wife has custodial care of the other child. Claimant contends he pays his child support and under his arrangement with his ex-wife, he can claim one exemption and the wife claims the other exemption. He indicated the children now are 19 and 22 years of age. Claimant testified as to his work history prior to beginning work for the defendant employer in 1971. After high school claimant played semi-professional baseball as a pitcher and developed arm trouble and then the next year began working for the Atlanta Braves team as equipment team manager. Claimant then worked for Wilson Foods and described his work as a meat processor which involved approximately two and one-half years prior to going to work for defendant employer. Claimant described the nature of his work with defendant employer. He began as an apprentice machinist and then trained and eventually learned to weld, took a test, was certified and was a welder for most of the time he was employed with defendant employer. He described the nature of his work and what he did for defendant employer. Claimant described how he was injured on June 20, 1988, which resulted in claimant having his left knee pinned and twisted and which resulted in his knee and low back injury. There is no dispute that claimant was injured. ***** Claimant testified that he had two prior left knee injuries which resulted in two prior surgeries. He also had two prior right knee injuries which resulted in two surgeries. Claimant had surgery on his left knee in November 2, 1988 which was the third surgery on that knee. He had his fourth surgery on that knee June 2, 1989. Claimant explained he understood that on the third surgery the doctor took a shortcut and it was inadequate, thereby, resulting in the fourth surgery. Regarding his pre-June 1988 knee injuries, claimant said his last surgery prior to that time to his left knee was in 1986. His right knee problem and prior surgery was two years before and he said it was successful and his right leg was very good. Claimant said he wore a knee sleeve prior to June 20, 1988, in which he slid it over his left foot and knee to get support but he had not had any braces before his June 1988 injury. Claimant said that since the June 1988 injury he has had a left knee brace prescribed in 1989 which stabilized the knee from the outside to the inside. He said he wore it either inside his pants or outside, but wore it mostly when he had to walk, stand or sit. He did not wear it when he went to bed. Claimant said he obtained a new brace in 1993. He said he was wearing it on his left knee at the time of the hearing. He Page 3 said it was a lighter brace and it weighed one or two pounds wherein his older brace weighed four or five pounds. Therefore, he can wear the newer brace more often as it is a lighter brace and is easier to tolerate. He did not expose his brace at the hearing. Claimant said he also had two pair of shoes with built-in lifts. Claimant described the swelling that he gets and it depends on the extent of his walking and activity. He said he has given up bowling and water skiing. He indicated he goes to the center for swimming, to use the Jacuzzi, for bicycle use and building up his upper body. Claimant said that prior to June 20, 1988, he basically had no back problem even though he indicated he had seen a chiropractor prior to that time on occasion for a back and neck adjustment. He indicated he first experienced low back problems two or three weeks after his injury and indicated that the doctor told him there was nothing he could do to help his back until his knee situation was fixed and that the doctor could not put in a new knee until claimant was 50 years old as it otherwise would not last. Claimant acknowledged that the defendant employer authorized him to see a chiropractor five times and claimant said it helped him. Claimant indicated that he continued to see the chiropractor on occasion later for his low back and that he paid for these. He last saw a chiropractor on September 19, 1993. Claimant wears a Velcro back brace around his back and stomach which helps support his back and which was recommended by the doctor. Claimant said he uses a cane on different occasions and more often he doesn't use it and indicated Christmas was the last time he used the cane. Claimant described how a pinched nerve in his back gets so bad that it literally paralyzes him and he cannot get up for two days and is in constant pain. Claimant acknowledged he is a good athlete and that he started playing golf in 1971 and that he had met Darrell Augustine in 1972. Claimant plays in the city tournament and usually places in the top 10 every year. He indicated the doctor told him he could play golf and he sits a lot and drives a cart when he goes now wherein prior to that he often carried his own clubs. He emphasized golf was his only outlet in life now and he golfs once or twice a week weather permitting. He indicated his handicap prior to his June 1988 injury was 7 or 8 where now it is 15 or 16. He said he used to carry more clubs when he golfed prior to his injury. Claimant described and showed how he now swings the golf club and hits the ball. He emphasized that he now must use his Page 4 upper body and arms and uses his lower body and legs very little and puts very little pressure on his left leg as it hurts him when he plays. Claimant indicated he lost 40 or 50 yards at least off his drives since his injury. Claimant contends he now plays with others on a best ball basis and lets the partners he plays with do the driving of the ball. Claimant was asked concerning his dancing and he indicates he now does slow dancing and goes sometimes three times a week at night and may dance three or four dances a night depending on how his knee feels. Claimant said that his knee gets sore when he stands or walks and that sitting affects his back. He said that if he drives over three hours he gets stiff and sore. Claimant acknowledged that three vocational consultants have not found employment for him except for a company named Quelex in which he worked five days delivering processed film. He indicated he made several stops per day and received minimum wages. He said he carried a lot of weight doing this job and his knee would hurt and swell up and he would have to soak it in the tub when he got off work. He acknowledged that he goes and picks up a car for Bob Zimmerman Ford to drive up to Cedar Rapids, Des Moines or Omaha. He receives minimum wages. He indicated he does this once a month, sometimes every four months, and has no trouble doing this particular activity. He said it is never full time. Claimant was then asked regarding numerous types of jobs that was suggested to him by Mr. Proctor, rehabilitation consultant, and indicated his reasons he wasn't able to do the job or some particular that may have prevented his employment to comply with his restrictions, etc. Claimant said he isn't afraid to work and acknowledged that Dr. James N. Weinstein and Richard F. Neiman, M.D., encouraged him to get a job. Claimant said there is no job he feels he can do. He has applied for social security but hasn't gotten it. His last application was in 1992. He said he was put through a functional capacity evaluation and social security felt he could do other jobs. He was referred to defendants' exhibit A. On cross-examination, claimant indicated he gets in and out of his golf cart but he doesn't stop to pick up his ball but he does stop and mark the ball. He used to go to the practice greens and shoot 10 to 15 balls but now he warms up with about 10 balls at practice. Claimant acknowledged that his additional chiropractic treatments were not authorized but indicated the chiropractor advised him he needed more treatment. He indicated the chiropractor prescribed the back brace but no doctor prescribed the use of a cane. The claimant was extensively cross-examined concerning his Page 5 work with the rehabilitation consultants and his attempts to look for jobs or following up on job leads or references concerning jobs. Claimant had told a rehabilitation specialist that he didn't want to relocate. He also indicated that in one particular instance the distance driving time expense was not worth the effort if he even got the job because of the low hourly wage he was offered. Claimant then was asked concerning the functional capacity test that indicated claimant was capable of sedentary work. Claimant was referred to exhibit A, page 22, which was his June 1992 social security disability application in which he indicated he couldn't stand more than five minutes and indicated he must wear the leg brace all the time. It is obvious from the testimony as a whole that claimant did not wear it all the time. Claimant related that he had hepatitis B for two to four months in September 1993, but acknowledged that during this period of time he was at the Roosevelt Hotel at a dance even though he was supposedly confined because of his hepatitis B. Claimant acknowledged that he was a professional dancer in the past in 1983 to 1985. It seems like claimant's testimony as to how much he dances per week varies from one time a week up to three times a week. He indicated that when he does dance, he pays for it physically. He also indicated that when he plays golf it is usually 18 holes and it takes him four and one-half to five and one-half hours to play. Claimant said he has made no job search since 1993 but is ready to do so now. Although claimant earlier testified as to lifts in his shoes, he indicated that when he goes dancing he wears cowboy boots that do not have lifts. Claimant was asked concerning his June 9, 1993 visit with his lawyer in which he had his braces on his leg and that after the meeting, he went home and approximately one hour later he left the house without the braces and cane and went to the golf course. Claimant was video taped on this day. Darrell Augustine testified that he is self-employed and operates two Laundromats and that he knows claimant and plays golf and has played golf with claimant since the early 1970s. He said he played golf with the claimant in 1992 and 1993 but that there was one year in the 1990s that claimant disappeared. He acknowledged that otherwise he has played every year with the claimant. He acknowledged that claimant has a bad left knee and that claimant was a very good golfer and still is. He has observed a change in claimant's swing and indicated claimant does not use his legs but uses his upper body. He said claimant always uses the cart and used to always walk before his injury. He said claimant drags his club now if he doesn't carry the clubs in a cart. He said that prior to claimant's injury claimant used to have a normal swing and now uses his arms instead of his whole body. He said he and the claimant play in two-men tournaments. Page 6 He said if he particularly had a good shot then claimant would not stroke the ball but instead would use his partner's best ball as the best ball. He said the tournaments are 18 holes played in one day and some are several days tournaments (weekends). He said claimant played less golf in 1993 because his back hurt and claimant got hepatitis. He acknowledged he saw the videos of claimant (represented by defendants' exhibit L). He said they accurately represent claimant's game at Twin Pines on that particular day in which claimant had no cart. He said that the claimant didn't play there a lot. He indicated that the reason no carts were used that day was that the course was wet and they didn't allow the carts on the course. He indicated it was in 1993 that he first knew claimant had a back problem. He said that claimant plays a lot of golf but that he is not necessarily his usual partner. He understands claimant plays once or twice a week now. He was referred to certain exhibits or newspaper articles as to claimant's golfing ability. Mr. Augustine said that he does not usually make it to the last day but claimant does as he is a very good golfer. He indicated that claimant is usually among the final leaders and that these tournaments are usually four day tournaments in which play is two days each weekend, a week apart. He indicated that most golfers shift their weight to the left leg but that claimant doesn't. He emphasized again that claimant plays a good game of golf even with his problems and that he is a good putter and can also get to the green. Kent Jayne, a vocational rehabilitation counselor, testified he did an assessment on claimant and the report is dated April 26, 1993, represented by claimant's exhibit 6. He said that since this report was given he has obtained additional information, psychological evaluations, doctor reports and has reviewed the video tapes. He said that he has changed his opinion since his original assessment. The original assessment indicated that claimant was employable. He now indicates that claimant's employability has decreased and that his earning capacity decrease is based on claimant's test scores. He opined that claimant had an 85 to 95 percent reduced earning capacity. ***** [It is] presumed that when this witness is using the word "earning capacity," he is strictly referring to loss of income and not determining industrial disability, [and that determination is the province of this agency.] He testified as to claimant's functional capacity, the psychologist report done by the state. He addressed the question of why claimant did not go to Kirkwood College to take another psychological assessment test. He indicated that it was inappropriate at that time as claimant had already done that type of test and it would have been redundant. He said claimant was not a candidate for retraining and, therefore, the Kirkwood Skill Center program would have been worthless. He again opined that he didn't think claimant was employable in the open labor market and that he is restricted to sedentary work. He indicated a Page 7 sedentary job usually takes more intelligence and that the employers do not want one with severe disabilities. He indicated that in the entry level position if one misses work, the employers do not like it. Also, there is usually no fringe benefits such as claimant had at defendant employer. He indicated he watched two of the video tapes and that he did not see anything inconsistent regarding claimant's complaints and activities in the tape. He was asked questions as to certain jobs or job contacts and in each instance he indicated that the job requirements are not consistent with claimant's physical restrictions. He said claimant is motivated and made 200 contacts. He said that claimant returned to the welding job and asked for light duty and couldn't get it. He said he has not written claimant off as to his being employable and added that claimant might be able to work temporarily but not able to retain a job. He said his first contact was with claimant in claimant's attorney's office on April 26, 1993, and that he saw him for a total of two times, the second time being one month before the hearing. Mr. Jayne indicated that claimant's attorney asked him to do a vocational assessment and not to provide placement of the claimant. He was only to make recommendations. He indicated he did a job search and indicated that at the bottom of page 8 of claimant's exhibit 6 (a geographical census) but he did not contact individual employers. He said he disagreed with Mr. Hughes as to the recommendation of retraining claimant and, also, as to Mr. Hughes' recommendation for potential retraining program. He disagreed with Mr. Proctor if he said claimant can be placed in a permanent job. Mr. Jayne indicated he hadn't initially read the department of vocational rehabilitation letter but had received it two months later. He also did not see the functional capacity test of William Minks, M.D., of August 4, 1992, represented by defendant's exhibit K. Mr. Augustine said he was given no social security record. He said claimant did not tell him he applied for social security. This witness was extensively questioned on cross-examination. He acknowledged that claimant was told he was capable of sedentary work but Mr. Jayne said that did not necessarily mean a sedentary job. He also acknowledged that he relies on medical opinions of the doctors and further acknowledged that three doctors had claimed claimant was capable of sedentary work and that he was released for sedentary work. He indicated the doctor said claimant cannot return as a welder and that Mr. Jayne indicated he would not place claimant in anything but a sedentary-type job. ***** Mr. Jayne's report, represented by claimant's exhibit 6, pages 1 through 10, basically concludes that claimant has a reduction in present and future earning capacity of between 85 Page 8 and 95 percent at his current levels and if he experiences further complications or reduction of capacity, claimant would approach 100 percent. Mr. Jayne also emphasized that he was not given a rating of industrial disability as that is within the sole purview of the industrial commissioner. It is apparent that Mr. Jayne did not seek a job for claimant or make contacts for him. It appears that Mr. Jayne was strictly trying to determine claimant's vocational potential and earning capacity in light of his injuries without doing the real test or real effort of getting claimant a job or making contacts or leading claimant to certain definite contacts. This latter effort would seem ***** to be more important in light of the Americans With Disabilities Act in which claimant would usually not have to disclose his disability before being offered a job. As will be addressed later, claimant did, as shown on the video tapes, go to his attorney's office in a very crippled or limping-type situation but within an hour or hour and a half later on the golf course and as shown by the videos, this claimant became suddenly cured or not affected by his knee as far as any visible outward indications. It would be presumed that he would make the same effort presenting himself to a job as he did trying to golf on a golf course. Larry Lang testified that he works for defendant employer and is a human resource manager and handles workers' compensation matters. He was somewhat familiar with claimant's claim, the nature of his work and the requirements of the job. He acknowledged that claimant last worked on August 8, 1988 for the company but retained his status with the company until April 1991 at which time there was a termination letter. Mr. Lang testified that there was a discussion in March of 1991 with claimant as to his health and condition. They discussed the doctor's recommendation and his final physical report recommendations and the recommendations from the vocational rehabilitation consultant. It was agreed or understood that claimant could not return to his former job as a welder and he said claimant also indicated he didn't think he could return so he explained to the claimant the benefits if he terminated his rights under Cobra, etc. Mr. Lang said he did not discuss other positions claimant could bid into at this time but indicated claimant did have a right to bid into other jobs. Mr. Lang said they were ready to let Mr. Lang return to his full-time work but they couldn't accommodate him as to a welder under the doctor's restrictions and that there was not enough work part-time versus full-time for him to do some of that type of work on a lighter basis even though they were able to accommodate him for awhile. He said the reason they had this discussion with claimant was that they felt a reasonable time had passed to see if claimant could return to his regular full-time job and, also, they had a letter around April 1991 showing claimant had reached maximum improvement. Mr. Lang said there was no union action taken as a result of Page 9 claimant's termination. Mr. Lang indicated at the time of claimant's injury he was making $11.75 per hour and that now after a raise, the hourly wage would be $14.14. He also indicated there would be the same full-time benefits, pensions and rights to overtime. He acknowledged that there was a pay raise about one month after claimant was injured. Thomas Werning testified he works as a controller for defendant employer and knew claimant had hurt his back and left knee in June 1988. He said that he had seen claimant in bars at Roosevelt Singlefest in October of 1993 and claimant was doing a line dance and seemed to have no problem dancing. Patricia Aten testified she is a nurse and rehabilitation consultant with Karr Rehabilitation Service, Inc. Her first contact with claimant was August 31, 1992, when she was asked to make contact with him and find him a job. She indicated claimant had told her he still hurt, his back still hurt and he had problems. They discussed the claimant's vocational goals and positions he would like and claimant indicated he would like to do welding. She said she provided claimant with leads and contacts and was looking for sedentary work. She said she referred claimant to 30 jobs and that claimant was to follow up and make contacts. She indicated some of these jobs requested resumes or applications and that claimant did not consistently follow up on job leads. She indicated he followed up on three in 13 days and some are on the same day. She related an incident in which claimant went for an interview and talked about being paid money under the table and not reporting it and that he wanted to take his girlfriend with him. Claimant later explained that that was not what happened but that he wanted to be paid cash for one week to see if he liked the job. She had mixed feelings as to claimant's motivation. Ms. Aten concluded that based on claimant's background, she believed he was employable in a competitive job market on a full-time basis. She said claimant's attorney knew she was trying to place claimant in a competitive job. Ms. Aten then said that Karr Rehabilitation transferred this case to Larry Proctor. As of that time, she had not found claimant a job. She said she was aware that claimant played golf and that there was a psychological report. (Cl. Ex. 5, p. 1-15) She did not do any independent testing and worked with the claimant from August 1992 to February 7, 1993. Larry Proctor testified he is a rehabilitation consultant working with Karr Rehabilitation Services since May 1993. He said his first contact with claimant's attorney was June 9, 1993, at the attorney's office and that the attorney understood he was trying to place claimant in a job. Page 10 He related that he was sitting in the reception room at claimant's attorney when the claimant came into the law office and was walking slowly and in distress and was in apparent obvious pain, shuffling along and looking as though he was experiencing a lot of pain. He said he introduced himself and then went into the conference room. Mr. Proctor said he had the initial report of Ms. Aten. He said claimant told him he was having a lot of pain in his left knee and right knee and gave him the impression it was debilitating and wanted Mr. Proctor to wait a couple of weeks so he could recover. Mr. Proctor testified he was surprised to know that claimant went to the golf course that afternoon. He felt that was impossible taking into consideration how claimant looked at the time he was in the attorney's office a short time earlier. He said claimant told him he was using the YMCA for water exercises and doing sedentary activities. Claimant never told him he was going golfing and dancing. Mr. Proctor said he tried to place claimant in a sedentary job classification and called local employers weekly and provided job leads to the claimant. He said claimant would also make calls. He said he called a Mr. Hughes of the Iowa Division of Vocational Rehabilitation as claimant had told him he was working with the state. Mr. Proctor said that after talking with Mr. Hughes, claimant met the state qualifications and a time was set up for claimant to go to the Kirkwood College for a test evaluation which would be paid for by the state. Mr. Proctor said claimant did not show and Mr. Hughes did not know why [claimant] ***** did not show up, especially since the state would pay for it. Mr. Proctor also had mixed feelings as to claimant's desire to work as he considered how the claimant appeared to employers. He said claimant is friendly but in both instances he knew of, claimant wore the knee brace outside his pants and he wondered what impression claimant made on any future employer. He was asked concerning a report of a Dr. Bryant, a psychologist. Mr. Proctor said that in reviewing it, claimant scored three points below average range and that this is not a low level in his opinion. He said claimant is not mentally disabled. He also said the doctor questioned the validity of the test and that it might be valid. He said he had barely gotten started with claimant concerning job placement when claimant came down with hepatitis B which put things on hold as claimant did not have any energy during this time. Mr. Proctor then said that on November 1, 1993, claimant said he couldn't follow up with any leads so he ended his working with the claimant on January 4, 1994. He gave claimant no leads then as claimant said he couldn't follow up. In his further testimony, he questioned claimant's motivation. Page 11 He said he is still willing to assist claimant in finding work. He said the Americans With Disabilities Act is making a big difference in how one is hired and retained. ***** Claimant's exhibit 7 is numerous pages of various contacts that claimant made or that he was referred to. ***** Claimant's exhibit 5 is a psychological report. It reflects on page 3 that areas of this test indicate that psychological/emotional features have become intertwined in claimant's thinking and secondary gain is present. It further shows some exaggeration of physical symptoms is probably present. Claimant's exhibit 5, pages 5 through 13, is the report from John Hughes, counselor, who is with the State Rehabilitation Department. Taking this report as a whole, ***** [there is] a concern as to claimant's motivation and willingness to try certain things. It seems like in 1992, he also had some personal problems not connected with any injury. It also appears around May 1992, he seemed interested in participating in a program of vocational evaluation at the Kirkwood Skill Center and the file was being transferred to that end. As shown on page 13 of said exhibit, there is authorization to pay for this evaluation which was to be given July 9, 1992. As the evidence shows, claimant did not go to this and actually refused and indicated this was a duplication or he thought he already had enough evaluation. ***** Claimant' exhibit 1 covers claimant's medical records at the University of Iowa. These reflect claimant had a third surgery on his left knee on November 2, 1988 and a fourth surgery on June 7, 1989. (Cl. Ex. 1, p. 4; Cl. Ex. 1, p. 11) Page 32 of said exhibit is a report of John P. Albright, M.D., Department of Orthopaedic Surgery, in which he opined claimant had a 60 percent permanent impairment of his left lower extremity under the AMA Guides to the Evaluation of Permanent Impairment. He deferred the impairment rating for claimant's back to the spine team and Dr. Weinstein. Page 33 of said exhibit is a September 26, 1991 report of Dr. Weinstein in which he opined claimant had a 3 percent permanent partial impairment to his body as a whole as a result of claimant's June 20, 1988 injury to claimant's back in which he aggravated a degenerative condition in his S1 joint. There is no dispute that claimant incurred an injury to his left knee and back and, therefore, ***** [there is] no need to go into any more detail on claimant's medical records at the University of Iowa as represented by claimant's exhibit 1. On March 24, 1992, Dr. Albright wrote a report (page 34 of said exhibit) and it emphasizes a 60 percent rating includes the prior 34 percent rating that he made on claimant's preexisting left knee condition. Therefore, he is opining that claimant had an additional 26 percent permanent impairment as a result of his June 1988 injury to his left knee. He then indicated that claimant's back impairment should be combined under the Guides to the 60 percent. Page 12 Claimant's exhibit 1, page 35, is a report from Kevin M. Carpenter, M.D., concerning claimant's hearing loss. Any hearing loss claimant incurred at work is not an issue in this case. This January 21, 1993 report indicates that claimant will need a hearing aid for communication. There is no indication claimant has followed that advise or has a hearing aid or feels he needs one. The evidence shows that claimant is golfing and dancing and not working and that may have made a difference as far as whether claimant thinks he now has a need for a hearing aid. On page 3 of claimant's exhibit 2, Dr. Neiman issued a report pursuant to an independent medical exam he made on February 5, 1992. His figures are confusing and appears to be in error as far as math is concerned. It appears that he would relate a 24 percent permanent partial impairment to claimant's left knee based on his prior injuries and an additional 36 percent based on his June 1988 injury. It appears that he has opined that claimant has a 14 percent body as a whole injury after converting the impairment he gave to claimant's left lower extremity. He opined a 10 percent body as a whole impairment to claimant's low back. He then opined a 24 percent combined permanent body as a whole impairment to claimant as a result of claimant's June 20, 1988 injury. Claimant was referred by Dr. Neiman to St. Luke's Hospital for a functional capacity evaluation represented by claimant's exhibit 2, pages 6 through 12. ***** After looking at the videos, a person questions the total validity of claimant's activity in these particular functions. It would seem ***** that in watching the videos and how claimant golfed, he would be able to do better at some of these functional capacity tests, at least now. This test was given in April of 1993 and the videos were shot in May, June and August of 1993. Claimant's exhibit 4 contains a May 14, 1992 report of Bradley P. Kristiansen, D.C.. Page 1 of said report is dated May 14, 1993 and page 2 is dated May 14, 1992. ***** [Presumably,] it is to be 1993. It is of interest ***** that page 2 of the report indicates that claimant has had to give up all sports activities. It appears throughout claimant's medical that he has not disclosed his actual sports activities and that he played golf quite often, goes dancing, etc. ***** There is a dispute as to medical bills in the amount of $1,456.67 with Dr. Kristiansen and his chiropractic office. The defendants indicate that they authorized five visits. It appears that claimant was aware that the additional chiropractic treatments were not authorized. The ***** $1,456.67 in chiropractic bills were not authorized and are not the responsibility of defendants. Pages 4 through 7 of claimant's exhibit 4 are the itemization of said chiropractic bills. Defendants' exhibit J is the reports from Mr. Proctor, the rehabilitation consultant, who testified in person. There is no question claimant has a serious injury with his left knee and low back resulting from his June 20, 1988 work Page 13 injury. Claimant, likewise, had left knee problems that preexisted said 1988 injury. The medical evidence is unanimous that claimant is not able to return to his job as a welder because of his 1988 injury. It does not appear that there would be any job similar to claimant's job he had with defendant employer on said date that he would be able to do. That job required claimant to do heavy strenuous work and put himself in difficult positions. Claimant contends he is totally disabled and is an odd-lot candidate. [It is found] ***** that claimant is not totally disabled and is not an odd-lot candidate. ***** According to the videos that are represented by defendants' exhibit L, ***** claimant went to his attorney's office on or around June 9, 1993, at around 10:14 a.m., and as shown on the video could hardly walk, walked slowly, held onto the rail, used a cane. He also apparently exhibited that type of condition while in the attorney's office waiting when one of the rehabilitation consultants happened to come upon him in the office also. Claimant left his home on said date around 11:10 a.m. and reached the golf course around noon on that day. Claimant testified in court and demonstrated that he has a unique swing in which he does not have to use his legs because of his upper body strength and he is able to play golf several times a week without it apparently bothering him. ***** *****Claimant ***** [appears to have been] overstating his medical situation and was, in fact, faking the extent of his disability and inability to do things. ***** Claimant did not disclose his full activities to the doctor. In fact, the medical reports show that he told them he had to discontinue all sports activities. Although ***** claimant was injured on June 20, 1988, he is using that injury to enable him through his exaggeration of his condition to again become active in his golfing game and lead a life of golfing enjoyment without working. ***** Claimant can do sedentary work and the medical evidence supports that. Claimant offered into evidence exhibits showing substantial contacts have been made. ***** He may have given the impression to employers who might be hiring that he either didn't want the job or may have visibly through openly wearing a brace on the outside rather than the inside of his pants or gave some other impression that did not help in obtaining a job. It is believed that claimant does not want to work for substantially less income than he was making at the time of his injury. If claimant desires to play on the golf course the rest of his life, that is his privilege, but defendants should not be stuck with claimant's overexaggeration of his inability or claim that he cannot work at all. It is strange that claimant needed to use his cane when he went to his attorney's office obviously knowing there would be others there to see him and yet when he went on the golf course, he suddenly did not need a cane and did not even use his golf club to support himself. He obviously did not expect to be video taped that day. In viewing all of the tapes, ***** [it is found] that claimant is able to do some work even though not the type of work he did at the time he was injured. Claimant should seek work and Page 14 attempt to earn a living rather than convincing himself that he should play golf during the day and dance during the evening. ***** [It is noted] that a motion for continuance was filed on September 9, 1993, indicating that claimant wanted a continuance of his arbitration hearing scheduled for September 16, 1993, because he was then currently physically incapacitated as he had contacted hepatitis B and there was a letter from the doctor requiring claimant to have bedrest until the acute stage is resolved. Mr. Werning testified that on October 8, 1993, claimant was at a dance at the Roosevelt Hotel doing the line dance and seemed to have no problems dancing. Not only was claimant able to dance contrary to his physical complaints, but he was there at a dance carrying a highly contagious disease from which he had his case continued so he could rest and recover. ***** ***** Claimant has a substantial loss of income. He would be making now approximately $14 plus an hour plus benefits if he was still working for the defendant employer. At the time of his injury, claimant was making about $11.75 per hour. It would appear that the sedentary jobs which might be available would be paying anything from minimum wage up to around $6.75 per hour and there would be a question as to whether there would be any fringe benefits which can be a substantial amount of one's salary or actual monetary benefit from employment. Claimant has substantial restrictions and also a substantial permanent impairment in addition to the permanent impairment he had prior to this injury. Claimant has had four surgeries to his left knee, two as a result of his June 20, 1980 injury and two from prior injuries. He has also had two surgeries to his right knee. ***** [However, claimant's physical activities demonstrate that his impairment is not greatly disabling. This ability to dance and to not only play golf, but to play exceptionally well, indicates an ability to tolerate various physical activities involved in various occupations. Although this is not to say that claimant does not have a disability as a result of his injury, it does cast doubt on claimant's description of the extent of his disability. His physical ability to engage in these activities can be readily translated to an ability to engage in various occupations involving similar movements. Claimant's failure to attend the vocational rehabilitation services offered to him reflects adversely on claimant's motivation to return to work. The services were authorized and would not have represented any cost to claimant, yet claimant decided on his own they were not needed or were duplicative. Claimant cannot maximize his award by failing to reduce his disability through reasonable vocational rehabilitation efforts. Claimant's psychological evaluation shows that he is of reasonable intelligence. Claimant therefore is a good candidate for retraining in another field within his physical limitations. Page 15 The vocational rehabilitation testing that was completed shows that claimant is eligible for a variety of jobs, but that claimant made less than a complete effort to apply for those jobs identified for him. In addition, he appeared to be intentionally sabotaging the interview process by wearing his brace outside his clothing. Claimant has been medically released to engage in sedentary work. Claimant is restricted from returning to his job as a welder. Claimant was 45 years old at the time of the hearing, and had completed high school. Claimant had no education beyond high school except on the job training. Claimant has experienced a loss of wages as a result of his work injury.] Taking into consideration claimant's work experience and medical and work history prior to his June 20, 1988 injury and after said injury; his age; intelligence; location and severity of his injury; his permanent restrictions and impairment; his motivation; the employer's attempt to accommodate but the employer's acknowledgment that claimant is unable to do the work he was doing at the time of his injury and the apparent inability to find work for the claimant within his restrictions at defendant employer's place of business; and, ***** all other factors that are considered in determining industrial disability, ***** it is found that claimant has incurred a *****  percent industrial disability. There is a dispute as to the number of exemptions to which claimant is entitled. Claimant claims he is entitled to three exemptions (himself and two children). Defendants contend that claimant is entitled to himself and one dependent child. Claimant testified that for income tax purposes, he and his ex-wife have an agreement that he takes one child and she takes one child. It is not clear whether this was done in the divorce decree and whether an IRS agreement signed by the parties is on file. ***** It is found that claimant, himself, is taking only one dependent and not two for income tax purposes and, therefore, is entitled to take only one child as a dependent herein. There is no other evidence that he is paying support for two children other than he seems to indicate he was supporting two children. Actually, there is no evidence he is supporting any child other than his relating to an agreement in which he is entitled to one and his ex-wife entitled to one. ***** [It is found] that claimant is entitled to two exemptions (himself and one child) and that his rate of weekly benefits is $278.93. Claimant is seeking payment of $1,456.57 in medical benefits under the provisions of 85.27. These appear to be solely chiropractic bills. There appears to be no dispute that these were not authorized. ***** There is no evidence that these chiropractic treatments which were unauthorized were beneficial to the claimant. It could also be very well true that contrary to claimant's contention, he is unable to do sports activities and that these bills were the result of claimant's golfing. Defendants did authorize five visits and those have apparently been paid for. Page 16 CONCLUSIONS OF LAW The conclusions of law contained in the proposed agency decision filed February 17, 1994 are adopted as set forth below. Segments designated by asterisks (*****) indicate portions of the language from the proposed agency decision that have been intentionally deleted and do not form a part of this final agency decision. Segments designated by brackets ([ ]) indicate language that is in addition to the language of the proposed agency decision. In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court formally adopted the "odd-lot doctrine." Under that doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist." Guyton, 373 N.W.2d at 105. The burden of persuasion on the issue of industrial disability always remains with the worker. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer, however. If the employer fails to produce such evidence and if the trier of fact finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Guyton, 373 N.W.2d at 106. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of evidence in determining whether the worker's burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong as to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. 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 the employee is fitted. Olson v. Goodyear Serv. 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. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references 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. Page 17 Factors to be considered in determining industrial dis ability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the 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. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). 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. 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 as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Iowa Code section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). It is further concluded that: Claimant incurred a ***** 35 percent industrial disability as a result of his June 20, 1988 work injury. Claimant has substantial restrictions and additional Page 18 permanent impairment as a result of his June 20, 1988 injury. Claimant is entitled to only two exemptions and that his rate of weekly benefits is $278.93 based on exemptions of himself and one dependent child at the time of his injury. Claimant is not an odd-lot candidate. WHEREFORE, the decision of the deputy is affirmed and modified. ORDER THEREFORE, it is ordered: That defendants shall pay unto claimant one hundred seventy-five (175) weeks of permanent partial disability benefits at the weekly rate of two hundred seventy-eight and 93/100 dollars ($278.93) beginning September 6, 1990. That defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against the award for weekly benefits previously paid. The parties have stipulated that defendants have previously paid one hundred seventy-five (175) weeks of permanent partial disability at a weekly rate of two hundred eighty-six and 69/100 dollars ($286.69). Defendants have previously paid healing period but healing period benefits are not in dispute. That defendants shall pay interest on benefits awarded herein as set forth in Iowa Code section 85.30. 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 October, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Wertz Attorney at Law 4089 21st Ave. SW, Ste 114 Cedar Rapids, IA 52404 Ms. Dorothy L. Kelley Attorney at Law 500 Liberty Bldg Des Moines, IA 50309 5-1803; 5-1900; 5-2500; 5-4100 Filed October 31, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : JERRY RIPPEY, : : Claimant, : : vs. : : File No. 889863 UNIVERSAL ENGINEERING, : : A P P E A L Employer, : : D E C I S I O N and : : FIDELITY & CASUALTY, : : Insurance Carrier, : Defendants. : _________________________________________________________________ 5-1803 Found claimant is entitled to 35 percent industrial disability. 5-2500 Claimant is not entitled to have some chiropractic bills reimbursed because they were unauthorized. 5-1900 Found claimant entitled to one child, not two, as an exemption. 5-4100 Found claimant was not an odd-lot candidate.