BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ KIMBERLY WILLIAMS, : : Claimant, : : vs. : : File No. 894805 GLENWOOD STATE HOSPITAL : SCHOOL, : A R B I T R A T I O N : Employer, : D E C I S I O N : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a contested case proceeding upon a petition in arbitration filed by claimant Kimberly Williams against defendants Glenwood State Hospital and the State of Iowa. Ms. Williams sustained a work related back injury on August 17, 1988, and now seeks permanent disability benefits under the Iowa Workers' Compensation act. A hearing was held in Council Bluffs, Iowa on June 1, 1994. The record consists of joint exhibits 1-17 and the testimony of claimant, Cherilyn Leversee and Billy Ray Williams. ISSUES The parties have stipulated to the following: 1. Claimant sustained injury arising out of and in the course of employment on August 17, 1988; 2. The injury caused both temporary and permanent disability; 3. Entitlement to healing period benefits is no longer in dispute; 4. Permanent disability should be compensated industrially; 5. The correct rate of weekly compensation is $248.31; and, 6. Entitlement to medical benefits is no longer in dispute (defendants agreed at hearing to cover certain unpaid charges). Page 2 The sole issue to be resolved is the extent of claimant's industrial disability, whether it be partial or total. FINDINGS OF FACT Kimberly Williams, 34 years of age at hearing, left school after the tenth grade. Ms. Williams was a poor student and was placed in some remedial classes. Even now, her literacy skills are weak. Claimant's only further education consists of certification in first aid and CPR. Claimant does appear to have average intelligence, an opinion shared by psychiatrist Michael J. Taylor, M.D. Clinical psychologist Mary Ann Strider, PHD, reported that testing showed an IQ only in the borderline range, but believed this finding could be inaccurate in light of emotional problems claimant has suffered, mostly as a result of the work injury. Claimant's work experience has been generally unskilled and in the medium category of physical requirements. Claimant has worked as a waitress, meat cutter, grocery cashier and factory worker. Claimant accepted work in 1984 as a residential treatment worker ("RTW") at the Glenwood State Hospital School, a facility operated by the State of Iowa to serve children with severe handicaps. Glenwood is a total care facility. Claimant suffered back injuries in 1986 and 1987, but was able to return to full duty on both occasions. However, she developed severe pain on the stipulated day of injury from lifting, transferring and bathing clients. Development of these symptoms (lower back, buttock and leg pain) set off an incredibly extensive series of medical procedures, beginning with conservative treatment and ending in four major surgical interventions. So far, that is. Ms. Williams underwent surgery on April 25, 1990. A bilateral L5-S1 laminotomy and exploration of the spinal canal and foramina was performed without evidence of significant abnormality; the treating surgeon, H. Randal Woodward, M.D., went on to perform a two level transverse process and posterior spine fusion from L3 to L5. This procedure failed to relieve symptoms. Claimant next underwent an anterior (that is, through the abdomen) interbody fusion at L3-L5, followed by a separate posterior fusion at the same two levels one week later, on October 14. These procedures involved installation of pins and rods as stabilizers. Unfortunately, these procedures also failed to relieve symptoms. Dr. Woodward performed yet another major procedure on April 14, 1993. This major surgery included both anterior and posterior approaches. Anteriorly, a fusion with bone graft was performed at L5-S1, while the posterior procedure included removal of the previous spinal Page 3 "hardware" and extension of the fusion to a third level, L5-S1. A new internal fixation device was installed. All of these procedures have failed. Indeed, as discussed below, two other back specialists recommend further surgery, although these specialists disagree on what procedure should be attempted next. Claimant, however, has lost faith in the medical community's ability to relieve her suffering and is most reluctant to undergo any further surgery at this time. Considering how painful recuperation from each prior procedure was, and the modest probability of success, one cannot fairly view this reluctance as unreasonable. Dr. Woodward writes that it would not appear that claimant will be able to return to any gainful employment in the foreseeable future. He rates impairment at 26 percent of the whole person due to the injury, surgery and residual problems in the low back and lower extremities. Dr. Woodward also believes installation of a dorsal column stimulator is a potential further treatment, and, on the basis that the only way to find out is to try, recommends proceeding with pain therapy treatment at the University of Iowa Spine Treatment Center. However, he noted a lack of conviction that the program will result in marked improvement or allow claimant to return to gainful employment. Claimant has seen numerous physicians since the date of injury, but the earliest opinions and impairment ratings can no longer be considered current due to the multiplicity of surgical experiences in the years since. Kip A. Burkman, M.D., evaluated claimant in January 1984. His impression is of failed low back syndrome, chronic pain syndrome, including reactive depression, and a component of deconditioning. He recommends trial of a TENS unit (previously tried unsuccessfully), reconditioning exercises and possible candidacy for a chronic pain program. Dr. Patrick W. Bowman has suggested the possibly of a dorsal column stimulator implant. James Weinstein, D.O., of the University of Iowa Hospitals Spine Diagnostic and Treatment Center, has suggested surgical removal of the metal fixation devices previously installed by Dr. Woodward. Claimant is also reluctant to accept this advice. Claimant has also suffered psychologically as a result of her long ordeal. Psychiatrist Michael L. Egger, M.D., is of an opinion "consistent with" Dr. Woodward's view that claimant is not functionally capable of returning to work. He rates psychological impairment by itself at approximately 25 percent of the whole person based on a reactive pattern of depression relating to the injury and chronic pain syndrome resulting from the injury. Another psychiatrist, Michael J. Taylor, M.D., has diagnosed claimant as suffering major depressive disorder, Page 4 single episode, which he finds directly related to ongoing pain and disability. He assess impairment according to AMA guidelines, in the range of 10-20 percent, but believes claimant is psychiatrically capable of competitive employment. Claimant is still seeing Dr. Egger for treatment of her psychological condition. Currently, she suffers constant pain in the back and legs, although the intensity may vary from day to day. She has problems sleeping, can walk only perhaps one block, and must frequently alternate between sitting, standing and reclining. Given her current condition, claimant knows of no work she can now do. This is an opinion shared by two vocational rehabilitation specialists whose opinions appear in this record: Cherilyn Leversee and James Rogers. Mr. Rogers concluded that claimant's employability was "nil," and believed she was unlikely to benefit from vocational assistance due to pain and depression. Ms. Leversee agrees that claimant can no longer perform medium category jobs (all of her work history), and concedes that she is entirely incapable of working, at this time. However, Ms. Leversee points out that claimant could perhaps return to work if she attends the University of Iowa Spine Clinic successfully. Ms. Leversee notes that claimant requires better conditioning, less dependence on pain killing medications and remedial education. CONCLUSIONS OF LAW Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee's experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 899 (1935). A finding that claimant could perform some work despite claimant's physical and educational limitations does not foreclose a finding of permanent total disability, however. See Chamberlin v. Ralston Purina, File No. 661698 (App. October 29, 1987); Eastman v. Westway Trading Corp., II Iowa Industrial Commissioner Report 134 (App. 1982). It is clear that claimant is currently unable to work due to residual pain, functional limitations and psychological impairment. It is abundantly clear that claimant is entitled to permanent total disability benefits unless a different result is mandated by her unwillingness to undergo additional surgery, to proceed with the in-house program recommended by the University of Iowa Spine team, or because deconditioning plays a role in her disability. In assessing the impact of these negative factors, one must look at the entire picture. Claimant has been in pain since 1988, frequently in very severe pain. This includes recuperation from four major surgical procedures, two of Page 5 which involved an approach to the spine through the abdomen. Recovery entailed a restrictive and uncomfortable body cast. Claimant's unwillingness to undergo further surgical intervention at this time is reasonable. She has had four failed back surgeries, and medical recommendations as to a fifth procedure vary from installation of a dorsal column stimulator to removal (and presumably reinstallation) of the internal fixation devices. Claimant cannot bend, since her spine is fused at three levels. She cannot sleep, cannot lift but a few pounds, and must change positions almost constantly. She has suffered disabling psychological problems, which understandably interfere with her motivation to undergo further surgery or the rehabilitative program recommended at the University of Iowa Hospitals. The treating surgeon, Dr. Woodward, is himself skeptical that this program is likely to have positive results. The fact that claimant is physically deconditioned at this point is hardly surprising, given her inability to engage in active exercise. Considering all these factors, it must be concluded that Kimberly Williams is at this time totally disabled from remunerative employment, and likely to remain so for the foreseeable future. The concept of "permanent" disability does not embrace the idea of absolute perpetuity; permanency means for an indefinite or indeterminable period. Wallace v. Brotherhood of Locomotive Fireman and Engineman, 230 Iowa 1127, 300 N.W. 322 (1941). Claimant has shown good motivation, and it is to be hoped that she at some time will regain earning capacity, whether through passage of time, further surgery, or participation in the University of Iowa program. If so, review-reopening is available to defendants. But on this record, claimant is entitled to permanent total disability benefits now and for the foreseeable future. ORDER THEREFORE, IT IS ORDERED: Defendants shall pay permanent total disability benefits at the rate of two hundred forty-eight and 31/100 dollars ($248.31) from August 17, 1988 and continuing during such time as claimant remains under a total industrial disability. Defendants shall have credit for all benefits voluntarily paid. Costs are assessed to defendants. Signed and filed this ____ day of June, 1994. ________________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Page 6 Copies To: Mr Sheldon M Gallner Attorney at Law 803 Third Avenue PO Box 1588 Council Bluffs Iowa 51502 Ms Joanne Moeller Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines Iowa 50319 5-1804 Filed June 20, 1994 DAVID RASEY BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ KIMBERLY WILLIAMS, : : Claimant, : : vs. : : File No. 894805 GLENWOOD STATE HOSPITAL : SCHOOL, A R B I T R A T I O N : Employer, : D E C I S I O N : and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1804 Permanent total disability benefits were awarded. Page 1 before the iowa industrial commissioner ____________________________________________________________ : VICTOR McCALL, : : Claimant, : File No. 894908 : vs. : A R B I T R A T I O N : OSCAR MAYER FOODS CORPORATION,: D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case Victor McCall filed a June 15, 1989 original notice and petition in arbitration seeking workers' compensation benefits from defendant employer Oscar Mayer Foods Corporation. He alleges injury to his back and body as a whole arising out of and in the course of employment. This cause came on for hearing in Des Moines, Iowa, on November 21, 1990. Claimant's exhibits 1 through 10 and defendant's exhibits A through G were received into evidence. Claimant, Marilyn McCall and Tom McCann testified personally. Claimant also testified by deposition, as did Peter D. Wirtz, M.D., Steven Sohn, M.D., and Ernest Found, M.D. issues The parties stipulated that claimant sustained an injury arising out of and in the course of his employment on July 14, 1988, that the injury caused temporary disability, that the appropriate rate of weekly benefits is $252.98 and that 1.143 weeks of benefits were voluntarily paid at that rate prior to hearing. Issues presented for resolution include: 1. Whether there exists a causal relationship between the work injury and any subsequent permanent impairment; 2. The nature and extent of claimant's temporary and permanent disability; and, 3. The extent of claimant's entitlement to medical benefits under Iowa Code section 85.27. findings of fact The undersigned deputy industrial commissioner, having heard the testimony and considered all of the evidence, Page 2 finds: Victor McCall, 31 years old at hearing, attained a General Equivalency Diploma in 1980 and is a journeyman carpenter following a four-year apprenticeship. His assertion in company personnel records (exhibit F-148) that he holds a Ph.D. degree, "and many more," was doubtless intended for humorous effect. Following high school, he worked in restaurants, a printing company, as a day camp supervisor, as a janitor and as a carpenter. Claimant began a stormy employment relationship with Oscar Mayer Foods Corporation, a meat packing concern, on February 11, 1985. He worked one year as a ham boner and thereafter on the cut floor doing various jobs, most of which required repetitive lifting and bending. Personnel records show that claimant was frequently involved in matters of employee discipline. He was on a number of occasions warned or suspended for various infractions, typically attendance and incidents of alleged horseplay (throwing meat and the like). Claimant was discharged from employment for horseplay on September 30, 1985, rehired thereafter, and again discharged for horseplay on April 27, 1987. The latter separation was held to disqualify claimant for job insurance benefits by a decision dated May 29, 1987. Nonetheless, claimant was again rehired effective June 8, 1987. Thereafter, further disciplinary actions were taken in early 1988. Mr. McCall was given a verbal warning for workmanship on March 29 and one for excessive absenteeism on May 16. On June 1, claimant was given a three-day disciplinary suspension for absenteeism and, on June 3, a written warning for alleged insubordination. Claimant was given another one-day disciplinary suspension for alleged insubordination on June 14 and a warning based on attendance on June 22, 1988. Claimant was counseled (another individual was suspended) in yet another dispute involving alleged insubordination on July 12, 1988, or two days before the work injury. It might also be noted that claimant's employment history is replete with numerous grievance procedures. As shall be seen, these problems came to a boil six weeks after the work injury. Dr. Sohn, a family practice physician, testified by deposition on September 13, 1990. He has for some years acted as a company physician for Oscar Mayer Foods Corporation. His chart notes indicate that claimant was first seen on October 30, 1986, almost two years before the injury. Claimant at that time complained of right-side low back discomfort and the doctor's assessment was of low back strain secondary to repetitive stress on that side. On January 20, 1987, claimant was seen with complaints of pain in the right chest wall area for the preceding three weeks. When claimant was seen again on January 27, chest wall tenderness was improving. Page 3 In his testimony, claimant indicated that the work injury occurred while he was engaged in pushing loins (14-22 pounds) and turning bellies, a job that required twisting and throwing loins from a tub to a conveyor belt. Mr. McCall indicated he felt a sharp pain in his side which he pointed out as at belt level, just over the right hip at his lower back/side. In his deposition testimony of September 6, 1989, claimant variously described this incident as gradual in nature and as a very sharp pain in the back as if he had been poked with a sharp object. Contemporaneous personnel notes state that claimant, while being instructed as to his job duties, indicated that his "back or side" hurt. Those notes, submitted by both parties, appear to show that the words "or side" were added as an afterthought. In any event, it is indicated that the supervisor took no action because claimant subsequently went to the doctor, this being Dr. Sohn. Chart notes of July 14 show that claimant was complaining of pain in the right lateral chest wall which occurred while he was sorting loins and that it hurt to move or take a deep breath. Assessment was of muscle strain injury with spasm. However, Dr. Sohn's chart notes of July 18 reflect that claimant returned "for followup [sic] of pain in the back and lower rib area." The area of tenderness over the lower ribs on the right was described as improved. On August 8, chart notes reflect that claimant complained of diffuse pain throughout the back and shoulders. On August 12, as claimant continued to complain of pain throughout the back, he was placed on light duty for one week's time with no bending, stooping or lifting greater than ten pounds. On August 17, claimant continued to complain of severe pain throughout the back and now, in both shoulders. However, he could not pinpoint any specific areas of pain. Assessment was of myofascial pain syndrome. Claimant was last seen by Dr. Sohn on September 2, 1988. Chart notes reflect complaints of increasing pain across the back. As had been the case in the past, claimant had full range of motion. Neurological examination was normal. Assessment was of diffuse back pain without objective findings. Claimant had at this point been seen twice by Dr. Wirtz. At his request, Dr. Sohn referred him to Joseph F. Fellows, M.D., an orthopaedic surgeon (claimant was actually seen by another physician in that office, Ronald K. Bunten, M.D.) and released with no work restrictions. On September 3, Dr. Sohn wrote to defendant that after repeat evaluation and testing, he could find no objective cause for complaints of back pain and that claimant was able to return to full duties at the plant without restriction. In his deposition testimony, Dr. Sohn noted that claimant's initial complaints of pain were along the right Page 4 chest wall and that he made no initial complaints of the spine, including the neck. Claimant did not relate his pain to any specific injury or accident, but it was just more of a strain from accumulated exertion. Dr. Sohn also specified that claimant's symptoms on August 8 were different than they had been before, although he was at that time fit to return to work (except that, as chart notes indicate, he was then apparently on disciplinary suspension). Defendant takes the position that claimant's initial injury was only to the rib area and that later reports of symptomatology in the back, neck and shoulders are unrelated. Dr. Sohn was vague as to whether a causal nexus to the latter complaints existed in that he testified it would be "guess work" as to whether August complaints were brought on by the July incident, but he later indicated that pain to the back muscles was considered related in that closely related muscle groups can be affected by splinting or compensating for pain in one group. Dr. Sohn did not attempt to rate claimant's disability. However, he testified that he generally agreed with Dr. Wirtz that claimant's problem was muscular in origin, that it should only last 4-6 weeks and that later exacerbations were not related to any one prior incident, but rather, the most proximal incident of injury to a later examination. Nonetheless, he also testified at page 22 of his deposition that he believed claimant's back complaints were related to employment. From the context, it appears that Dr. Sohn refers to back complaints during the time he was treating claimant. Generally speaking, there is much in Dr. Sohn's testimony to comfort both parties to this contested case. Claimant was seen by Dr. Wirtz on August 24, 1988. Dr. Wirtz is a board-certified orthopaedic surgeon and testified by deposition on December 8, 1989. History given to Dr. Wirtz was of symptoms over four years developing in the right lower back approximately one year prior to the examination. Dr. Wirtz found no spasm and range of motion was normal. Review of cervical and lumbar x-rays was normal. Diagnosis was of muscular strain in the right lower back area with a possibility of facet degeneration at L3 (which was eventually ruled out following x-rays on September 15, 1989). Although no medications were prescribed, Dr. Wirtz recommended that claimant restrict activities that would aggravate subjective symptoms of muscle pain in the back, to work in a more upright position and limit forced bending and twisting of the back. Dr. Wirtz saw claimant again on August 31, 1988 for continued complaints of muscular pains. As no bone or neurological condition was found that would restrict activities, claimant was merely advised to minimize bending Page 5 activities of the back and check back as needed. On the same day, Dr. Wirtz wrote defendant that claimant had no condition from an orthopaedic point of view that would restrict his activities. Dr. Wirtz saw claimant again at the request of defendant's attorney on September 15, 1989. Diagnosis was of recurring muscular strain symptoms. X-rays were normal. The doctor concluded that any muscle strain in existence on September 15, 1989 was not related to the work incident of the previous year. In the meantime, claimant's disciplinary adventures continued. A memorandum dated August 29 indicated that claimant was instructed by supervisor Ed O'Connor not to take unscheduled breaks. On August 30, he was instructed that he was not to use barrels as a chair, but O'Connor reported claimant's response as, "You guys never give up, you've always gotta be fucking with me; well, I'm not gonna give up either, and you ain't seen nothing yet." The balance of this memorandum (exhibit F-109) indicates a relatively heated exchange with, perhaps, even a hint of threatened violence ("if you don't like it, maybe you should move away from me."). On the same day, claimant left work before the end of his shift, complaining of disabling pain. On August 31, he was also absent and failed to report in (as required) before the start of his shift. On September 1, he appeared for work, but also left early following a conference in which he was informed that he would be gradually brought up to speed on his regular job over a several-day interval. On September 2, after Dr. Sohn joined Dr. Wirtz in concluding that no medical restrictions were necessary given the absence of objective findings, the previous absences were deemed unexcused by defendant and claimant was discharged. This discharge was determined by Job Service of Iowa to be for disqualifying job misconduct; unemployment benefits were denied. Claimant then remained unemployed until accepting a position as a food preparation worker for Woodward State Hospital on March 17, 1989. This employment relationship also proved stormy and he was discharged on August 21, 1989. The exit evaluation indicated a number of complaints Woodward had with claimant's job performance, but in particular, he was discharged for refusal to wear a beard net in the course of his food preparation duties. Between July 30 and August 20, he was instructed to cover his beard nine separate times, received a letter of clarification after the sixth instance and a written reprimand after the seventh instance. The ninth instance resulted in discharge. The significance of this history may be seen in claimant's deposition testimony. Asked why he had been discharged, claimant testified: Page 6 A. Beard net is one of the policies they have. I forgot to put my beard net on. They discharged me since I was on probation. (Defendant's exhibit B, page 22, lines 23 through 25) It is wholly unbelievable that claimant "forgot" to wear his beard net on nine occasions in only three weeks, particularly when he received a letter of clarification and a written reprimand before being discharged. Without question, claimant's deposition testimony was, at the very least, misleading. He would have this agency believe that his discharge from Woodward State Hospital was for an act of mere negligence as opposed to, as the record makes clear, repeated acts of direct insubordination. Considering this instance along with demeanor while testifying and the record as a whole, it is found that claimant lacks substantial credibility as a witness. Claimant thereafter was employed by a sanitation company to clean machines for a well-known meat packing concern with a pressure hose. He was also discharged from this employment after approximately four months, allegedly because he missed work as the result of an injured leg. Claimant then worked for several months stacking and wrapping boxes for an ice cream company, for one or two weeks as a stocker and shelver for a supermarket business and, for about three months, as a laborer for a construction company. This job involved building forms, pouring concrete and the like. Lifting requirements were up to 50 pounds. Claimant indicated he was laid off from this work at the end of the construction season and that he was unemployed at the time of hearing. Claimant states that his back is now uncomfortable, but generally all right unless he tries to lift or bend strenuously. He complains of inability to bend, jog, bicycle, participate in sports to the extent he previously could, and that he also has less energy. He is not currently on any medication, last being prescribed medicines by Dr. Sohn in 1988. As will be recalled, Dr. Sohn referred claimant to Dr. Fellows at claimant's request. He was eventually seen by Dr. Bunten of the same office for examination on October 3, 1988. Dr. Bunten arranged a CT scan of the lumbar spine, but this proved normal. On October 17, 1990, Dr. Bunten wrote that based on his one examination there was no obvious permanent partial impairment, although the assessment was incomplete after only one visit. Claimant was seen by William R. Boulden, M.D., on October 27, 1988. Dr. Boulden believed claimant's muscles were out of shape, leaving him with residual myofascial pain and tightness which should reverse with physical therapy and Page 7 exercise. Claimant was thereafter seen by the Spine Diagnostic and Treatment Center of the University of Iowa Hospitals and Clinics in March 1989. The primary physician to evaluate claimant, Ernest M. Found, M.D., testified by deposition on October 9, 1990. Dr. Found is a board-certified orthopaedic surgeon. Dr. Found testified that no objective signs were found that might explain claimant's continued complaints of discomfort. In a contemporaneous report dated March 1, 1989, he stated that no permanent functional disability was expected at that time. Although Dr. Found made it clear that he is not entirely satisfied with the Guides to the Evaluation of Permanent Impairment published by the American Medical Association, he agreed that under the guides, impairment rating would necessarily be zero. He noted that initial complaints of costochondral pain would normally not be related to later complaints of back pain and that it was difficult to exactly pinpoint a precise pathological entity as responsible for continued subjective complaints of pain. James Weinstein, M.D., is director of the Spine Diagnostic and Treatment Center. The record, particularly the testimony of Dr. Found and Dr. Weinstein's letter of March 14, 1989, indicates that he did not actually see claimant, but did participate in staffing the case as director of the spine center. Dr. Weinstein's March 14 letter suggests that mid- and low-back pain radiating into the right hip and pelvic area was "absolutely real" and suggested lifting restrictions of approximately 50-60 pounds no more than four times per hour, and a repetitive lifting limit of 25-30 pounds. Although claimant's pain was real, "we feel that there is nothing seriously wrong with your low back. All of our indications would point towards a chronic musculoskeletal type of strain which is very amenable to a positive and active rehabilitation approach." Dr. Weinstein stated that the low back pain claimant was experiencing was not doing any damage to the lower back, but simply causing discomfort. He was hopeful that with proper exercise and conditioning, claimant's condition would continue to improve. With that in mind, increased activity was recommended. In a subsequent letter to claimant's attorney dated July 18, 1989, Dr. Weinstein related claimant's back condition to the subject injury, indicated that healing period "has ended March 14, 1989," and assessed a five percent permanent partial impairment rating of the body as a whole. In his deposition testimony, Dr. Found testified that he had no reason to disagree with the medical restrictions suggested by Dr. Weinstein nor any particular objection to Page 8 that physician's impairment rating (although it appeared to Dr. Found that "functional disability would probably be quite minimal"). conclusions of law The parties have stipulated to the existence of an injury arising out of and in the course of employment as alleged. Similarly, causal relationship to temporary disability is stipulated, but not the extent thereof. The parties further dispute the existence of a causal relationship between the work injury and claimed permanent disability. The supreme court of Iowa in Almquist v. Shenandoah Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed the definition of personal injury in workers' compensation cases as follows: While a personal injury does not include an occupational disease under the Workmen's Compensation Act, yet an injury to the health may be a personal injury. [Citations omitted.] Likewise a personal injury includes a disease resulting from an injury. . . . The result of changes in the human body incident to the general processes of nature do not amount to a personal injury. This must follow, even though such natural change may come about because the life has been devoted to labor and hard work. Such result of those natural changes does not constitute a personal injury even though the same brings about impairment of health or the total or partial incapacity of the functions of the human body. . . . . A personal injury, contemplated by the Workmen's Compensation Law, obviously means an injury to the body, the impairment of health, or a disease, not excluded by the act, which comes about, not through the natural building up and tearing down of the human body, but because of a traumatic or other hurt or damage to the health or body of an employee. [Citations omitted.] The injury to the human body here contemplated must be something, whether an accident or not, that acts extraneously to the natural processes of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys some function of the body, or otherwise damages or injures a part or all of the body. The claimant has the burden of proving by a preponderance of the evidence that the injury of July 14, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 Page 9 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 Hosp., 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. Cent. Tel. 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, 760-61 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962). This record certainly contains evidence supporting a conclusion either way on the crucial issue of causal nexus between claimed impairment and the work injury. However, it is concluded that claimant has failed to meet his burden of proof on the issue. It should be recalled that claimant has a preexisting history of right side and back problems. His credibility is suspect and the record indicates that he harbors ill will towards defendant. When claimant first presented to Dr. Sohn, his sole, or at least primary, complaint was of costochondral pain. Later, complaints ranged from the low back radiating to the leg to the neck and shoulders. Claimant's subsequent absenteeism and refusal to work is consistent with the existence of an injury, but equally consistent with his previous history of absenteeism and insubordination (and, for that matter, his subsequent history). Dr. Sohn, the primary treating physician, released claimant to return to work without restriction and did not anticipate permanent impairment. Dr. Wirtz, the other physician who saw claimant shortly following the work Page 10 injury, concurred. Except for muscle spasm only when claimant was first seen by Dr. Sohn, there is no objective sign of injury to explain claimant's continued complaints. Neither Dr. Bunten nor Dr. Boulden anticipated further impairment. When claimant was evaluated by the University of Iowa spine team, Dr. Found found no objective signs and anticipated no permanent impairment. Dr. Weinstein, who apparently did not see claimant at all (although, as director of the spine team, he participated in staffing the case) suggested medical restrictions that would not bar claimant from performing the same work at Oscar Mayer (throwing loins of less than 30 pounds repetitively) and imposed a five percent impairment rating, but anticipated that his condition would improve. Claimant's reported symptoms appear far out of proportion to objective evidence of impairment. Pain, absent objective findings, is not equivalent to impairment. Waller v. Chamberlain Mfg., II Iowa Industrial Commissioner Report 419 (1981). Considering all these factors, this writer finds himself unconvinced that claimant has sustained permanent impairment or industrial disability causally related to the original work injury. It is to be recalled that claimant subsequently held at least one construction job involving substantial lifting over 50 pounds which he was able to perform successfully, although he complained of residual back pain. Claimant has not met his burden of proof on the issue. The record is unclear as to the extent of claimant's entitlement to temporary total disability. As of August 8, 1988, Dr. Sohn released claimant to return to work without restriction. Even though Dr. Sohn recommended that claimant be put on 50 percent or light duty on August 12, it is hard to tell what days he missed as a result of those restrictions as opposed to various disciplinary actions. It is stipulated that defendant voluntarily paid eight days of compensation at the stipulated rate prior to hearing. Claimant has not shown entitlement beyond that period. The parties dispute claimant's entitlement to medical expenses set forth in his exhibits 3, 6, 7 and 8 (defendant agreed to pay the expenses set forth in exhibit 10 at hearing). Those expenses, each of which post-date the end of claimant's entitlement to temporary total disability, have not been established as causally related to the subject work injury. Page 11 order THEREFORE, IT IS ORDERED: Claimant shall take nothing from this proceeding. The costs of this action are assessed to defendant pursuant to rule 343 IAC 4.33. Signed and filed this ______ day of ____________, 1991. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert E. McKinney Attorney at Law 480 6th Street P.O. Box 209 Waukee, Iowa 50263 Mr. Harry W. Dahl Attorney at Law 974 73rd Street Suite 16 Des Moines, Iowa 50312 5-1803 Filed May 14, 1991 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : VICTOR McCALL, : : Claimant, : File No. 894908 : vs. : A R B I T R A T I O N : OSCAR MAYER FOODS CORPORATION,: D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 5-1803 Claimant failed to prove work injury caused permanent disability. Page 1 before the iowa industrial commissioner ____________________________________________________________ : MICHAEL L. PAPALE, : : Claimant, : : vs. : : File No. 894922 WAYNE CARNEY PAINTING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA LIFE AND CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ On January 26, 1990, Michael Papale, (claimant) filed a petition as a result of an injury to claimant's lungs back occurring on July 26, 1988. Wayne Carney Painting (Wayne Carney) was identified as employer and Aetna Casualty (Aetna) was identified as the workers' compensation insurer for Wayne Carney (collectively defendants). On April 1, 1991, these matters came on for hearing in Davenport Iowa. The parties appeared as follows: the claimant in person and by his counsel Joseph M. Bauer of Des Moines, Iowa and Wayne Carney and Aetna by their counsel Linda Frischmeyer of Rock Island, Illinois. The record in this proceeding consisted of the following: 1. The live testimony of the claimant, Susan Papale and Wayne Carney. 2. Joint exhibits 1-25 3. Claimant's exhibit A. At the close of all evidence, the case was deemed fully submitted. stipulations The parties stipulated to the following matters at the time of the hearing: a. An employer-employee relationship existed between claimant and employer at the time of the alleged injury. b. The claimant sustained an injury on July 26, 1988, which arose out of and in the course of employment. c. The alleged injury is a cause of temporary disability. d. The type of permanent disability, if the injury is found to be a cause of permanent disability, is industrial disability to the body as a whole. e. The commencement date for permanent partial disability, is November 26, 1988. Page 2 f. The rate of compensation, in the event of an award, is $230.14 per week. At the time of the injury, claimant was married and had three dependants. He is entitled to four exemptions. g. The parties agree that if the providers of medical services were called to testify the providers of the services would testify that the fees were fair and reasonable and incurred for necessary medical treatment. Defendants would not offer contrary evidence. h. Defendants have paid 79 and 6/7 weeks of workers' compensation benefits to claimant at the rate of $230.14 per week prior to hearing and are claiming a credit therefore. i. There are no bifurcated claims. j. Incorporated by this reference is the supplemental to the prehearing report regarding the testimony of Steve Brehmer, and Don Pruitt regarding Material Safety Data Sheets for Diamond Vogel products and Glidden Paint Products. k. The amount of costs to assess in this matter is not in dispute. Costs total $165.50. Issues The issues for resolution are as follows: 1. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. 2. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. FINDINGS OF FACT After considering all of the evidence and the arguments of counsel, the undersigned makes the following findings of fact and conclusions of law. 1. At the time of the hearing, claimant was 37 years old. On the date of injury, claimant was 35 years old. Claimant is a high school graduate and has attended post graduate courses. He attended Hamilton Technical College for five months. 2. Claimant has had a checkered employment history. Between 1973 and 1983 claimant has held 19 different jobs and these jobs have lasted for less than one year. Claimant has experience as a self employed painter and construction worker. Claimant has built furniture, worked as a prep cook for a restaurant, optical technician, bookkeeper and scheduler, a supervisor for mentally retarded clients, and a grounds maintenance person. Claimant began his working career in Salt Lake City, Utah, and then moved to Iowa in 1981. Claimant has experienced several lengthy periods of unemployment during his working career. 3. Claimant began to work for Wayne Carney Painting in 1986. Claimant worked for Wayne Carney until February of 1988. Claimant then left to work for another painting contractor, Jay Jennings, for two months in 1988, April and May. During the time that claimant worked for Jay Jennings, he was working with lacquer paints. This is an oil based paint or stain that has a stronger odor than regular paint Page 3 and can be a sensitizing agent for someone with an asthmatic condition. (Exhibit 21, Page 4). During the time that claimant was employed by Wayne Carney, claimant did not use lacquer paints in his work. However, claimant did use other paints including oil and latex based paints. Additionally, claimant applied thinner, paint stripper, and used turpentine in the course of his employment. As a painter, and previously, as a wood worker, claimant had been exposed to substantial amounts of dust while working. 4. On July 26, 1988, claimant was working in a small bathroom. He was sanding off paint from the ceiling and the walls and experienced heaviness in his chest. Breathing became difficult and he started to wheeze. Claimant reported his breathing problem to Wayne Carney at the end of the working day. That evening, claimant went to the emergency room at Mercy Hospital in Davenport reporting difficulty breathing. At the time claimant was seen in the emergency room, he indicated that he had had an eight year history of intermittent breathing difficulties. He further indicated that he had been on Proventil until six months ago when he stopped using this inhaler on his own decision. 5. There was some dispute in the evidence regarding whether claimant in fact had bronchial asthma prior to the incident on July 26, 1988. It is apparent from medical records in evidence that claimant has a longstanding bronchial asthma condition. Dr. Troxell's records indicate that claimant suffered from significant asthma attacks for the last six years. (Ex. 7, p. 3). 6. After claimant was seen in the emergency room at Mercy Hospital, claimant returned to work on August 1, 1988 and worked Tuesday and Wednesday. Claimant did not return to work for Wayne Carney Painting thereafter. 7. Claimant was examined by Dr. Askhay Mahadevia on August 25, 1988. Dr. Mahadevia is board certified in internal medicine and by the American Board of Pulmonary Medicine. He is a pulmonary medicine specialist. At the time of the examination on August 25, 1988, Dr. Mahadevia concluded that claimant was suffering from chronic bronchial asthma with significant aggravation by occupational exposure. At the time of the August 25, 1988 examination, claimant indicated to Dr. Mahadevia that he was still working as a painter. However, claimant was not working for Wayne Carney Painting at the time of that visit. 8. Dr. Mahadevia continues to follow claimant in connection with his bronchial asthma condition. Dr. Mahadevia has opined that claimant's bronchial asthma was aggravated by exposure to various paint fumes at work. Initially, Dr. Mahadevia indicated that claimant had no permanent impairment arising from his bronchial asthma condition. However, he retreated somewhat from that position and indicated that he had given claimant an impairment rating of between zero and fifteen percent, depending on the claimant's condition on any given day. When contemplating the functional impairment rating Page 4 assigned, Dr. Mahadevia indicated that this rating was based on an average of claimant's worst days and his best days. Dr. Mahadevia indicated that claimant's exposure to paint fumes had probably made him more sensitive to other triggering factors in the environment. However, claimant had various non work related and non paint related triggers that would cause asthmatic attacks before his paint exposure.(1) Dr. Mahadevia also indicated that claimant's bronchial asthma condition did not change his underlying lung condition. Dr. Mahadevia also opined that claimant's exposure to certain paint related products had no connection with other sensitizing agents that also triggered claimant's bronchial asthma. Dr. Mahadevia indicated that claimant was reactive to those other things before he was exposed to paint fumes. However, Dr. Mahadevia further indicated that claimant's reactivity may have gotten worse as a result of his exposure. 9. Dr. Mahadevia indicated that during the fall and early winter of 1988, he continued to treat claimant for his bronchial asthma condition. Dr. Mahadevia indicated that claimant improved significantly to a point where claimant was feeling like he did before he began taking medication. In connection with the impairment rating Dr. Mahadevia gave, it was impossible for him to assign a proportionate shares to claimant's preexisting condition attributable to bronchial asthma and the increased reactivity that the claimant suffers as a result of his exposure to paint and other fumes from his work as a painter. Dr. Mahadevia indicated that as a result of claimant's incident at work it is more likely that he will have frequent episodes of asthma attacks. Dr. Mahadevia also indicated that once claimant is removed from an environment that contains paint fumes and the associated chemical odors connected with painting, then his reactivity to other catalyst for bronchial asthma should return to baseline. Because of claimant's sensitivity to paint fumes, Dr. Mahadevia has restricted claimant from returning to an environment where he is exposed to paint fumes, varnishes, lacquer, turpentine, or thinner. 10. Claimant's records were reviewed by Peter S. Jerome, M.D., a pulmonary and critical care specialist. Dr. Jerome provided a fairly thorough definition of bronchial asthma.(2) , Dr. Jerome concluded after a review of claimant's medical records and depositions of claimant and Dr. Mahadevia, that claimant in fact suffered an aggravation (1). Claimant testified that triggering events included excessive talking and laughing, waling, cold air, fresh carpet, fresh cut wood, newspaper ink, plastics, cigarette smoke, reaching with his hands overhead, cleaning fluids, high humidity, hair spray, cheap perfumes, gas fumes and roughhousing with his children. (2). Bronchial asthma is a disease characterized by an increased responsiveness of the trachea and bronchi to various stimuli and manifested by wide spread narrowing of the airways that changes in severity either spontaneously or as a result of treatment. Bronchial asthma is a reversal airways obstruction. Page 5 of his bronchial asthma on exposure to pungent solvents, paints, plaster and wood dust. However, Dr. Jerome does not believe that this exposure caused any permanency. Dr. Jerome also believes that claimant's exposure to non specific agents such as the paint fumes, solvents, and various dusts would have caused increased sensitivity to specific chemicals or items. He did agree, however, that patients who are having an aggravation of bronchial asthma tend to be more sensitive to various agents during a particular time when the asthma has been aggravated. Dr. Jerome concludes his review of claimant's condition and records by recommending that claimant avoid tobacco and occupations associated with the potential environmental pollutants including paint fumes. Dr. Jerome believed that claimant had not been sensitized not by the exposure to paint, dust, and turpentine and thinner products used by Wayne Carney. Dr. Jerome based his conclusion on his review of the material safety data sheets which did not show a sensitizing chemical such as diisocyanate group of sensitizing agents in the paint used by Wayne Carney Paint. 11. Claimant was also seen by James L. Gillilland, D.O., an allergist and clinical immunologist. After an examination, Dr. Gillilland also agreed that claimant had bronchial asthma that had been brought on by his work environment. (Ex. 3, p. 2). Dr. Gillilland believes that the sensitizing agent may have come from the polyurethane varnishes that claimant was working with. However, on the date of the incident at Wayne Carney Painting, claimant was working in a bathroom where there were no paint fumes and he was still wheezing. He opined that the cause of claimant's incident on July 26, 1988, was due to the irritant effect from the sawdust or mold spores that gather in bathrooms. Dr. Gillilland was also of the opinion that claimant's work setting had a direct relation in bringing on his asthma and he should avoid this type of environment in the future. Dr. Gillilland did not assign a functional impairment rating to claimant's condition. 12. Claimant's health history is significant for low back problems and ulcers. Additionally, claimant was a substance abuser for approximately ten years. Medical evidence indicates that claimant took a variety of controlled substances with his last use in 1985 when claimant discontinued smoking marijuana. Claimant's prior drug use is not mentioned in any of the histories provided to any of his treating or evaluating physicians in connection with his bronchial asthma condition. Claimant was not using marijuana at the time he was employed by Wayne Carney Painting. 13. After claimant left employment with Wayne Carney, he found a subsequent job in November of 1988 with the Shoefixers at the North Park Mall in Davenport. Claimant stayed with Shoefixers for one month. Claimant quit this employment in December of 1988 because he indicated that the chemicals used at the Shoefixers induced asthmatic symptoms. Page 6 However, claimant did not report this symptoms to Dr. Mahadevia and he did not report that he was in any distress during that time period. Claimant did not seek any medical attention for his reaction to the chemicals at the Shoefixer in 1988. 14. Claimant's next employment was with the Mississippi Valley Blood Bank. Claimant began work there in March of 1989. Claimant was hired as a mobile technician and was in the process of being trained as a phlebotomist. However, when claimant was exposed to bleach it affected his bronchial asthma condition. Claimant has filed a workers' compensation claim for aggravation of his bronchial asthma condition as a result of his exposure to bleach on the job at Mississippi Valley Blood Bank. 15. As an accommodation, Mississippi Valley Blood Bank transfered claimant to a driving position. Dr. Mahadevia agreed that claimant could perform this job with the use of inhalers and medication. Claimant would have to take simple precautions and continue his oral and inhaled bronchial dilator therapy. (Ex. 19, p. 6). However, claimant decided that he could not continue in this employment and so voluntarily resigned. 16. Claimant's next employment was for Normandeau Associates. Normandeau was hired to do an environmental study for a hydroelectric plant. Claimant was to assist with catching fish. Claimant stayed in this employment for two and a half months, complaining of stomach pain, night work and shortness of hours. Additionally, claimant indicated that he had breathing problems with this employment but he did not seek any medical assistance for this condition. 17. Claimant's next employment was with Schwartz Construction Company, a builder who constructed log homes. Claimant was hired as a carpenter's helper and laborer. He stayed on this job for approximately one and one half months. In this job, claimant was covered with sawdust; a circumstance that would bring on breathing problems. Claimant's next employment was with HayCroft Construction. In this job, claimant was tearing off old roofs and putting on new roofs. Additionally, claimant was doing concrete work. In doing this work, claimant indicated that he had breathing problems when he was around hot tar roof. Additionally, claimant complained that he had breathing problems when he smelled burning leaves in the fall. At the time of the hearing, claimant was off work because he had torn a knee ligament and while in therapy had pulled a muscle in his back. 18. On average, at these various jobs, claimant has earned between $6.00 and $8.00 per hour. 19. Claimant has also been suffering from symptoms of depression. Claimant consulted with Dr. Hayes, a psychologist for his depression symptoms. Dr. Hayes could not say when claimant's depression began and what caused the initial depression. Dr. Hayes indicated that claimant's Page 7 major depressive episode with anxiety was difficult to link to claimant's job situation as a painter. 20. After claimant had been injured, claimant decided to take some courses at the American Institute of Commerce in Davenport. Claimant was interesting in developing drafting skills and he signed up for a CAD drafting course. He was awarded financial aid but he dropped out due to financial problems. 21. Claimant has not always been truthful in his job applications. At the time claimant began seeing Dr. Hayes, claimant was employed at the Mississippi Valley Blood Bank. He continued his work as a driver. He did not disclose his depression to the vocational rehabilitation counselor that had been hired by the defendants, nor did he make any references to his depression of his depression to Dr. Mahadevia, his treating pulmonologist. When claimant was working for Normandeau, he indicated that he had not been under a doctor's care in the past six months. Additionally, he indicated that he was in a good state of health. Claimant also failed to give a complete job history for the Normandeau employment. He indicated that the last position he had held was with Wayne Carney Painting in Davenport, Iowa. He failed in include references to the Shoefixers and the Mississippi Valley Blood Bank at the time of his application February 21, 1990. 22. In assessing claimant's ability to participate in a formal education, it is apparent from the records from the American Institute of Commerce, that claimant is in need of some remedial assistance in the areas of reading and mathematics. However, it does not appear that claimant is incapable of pursuing advanced educational courses if he obtains the proper assistance. 23. At the time of the hearing, claimant had various unpaid medical bills which included the following: Charles Hays, Ph.D. $520.00 William Nissen M.D. $105.00 Pulmonary Associates $31.50 St. Lukes Hospital $1,258.00 St. Lukes Hospital $623.75 Vera French Community Health Ctr $68.60 TOTAL: $2,606.85 The services for Ira French Community Mental Health were incurred on March 1, 1990. The first part of this bill was paid by insurance coverage maintained by claimant's wife. Additionally, Susan Papale's insurance covered the bill for Dr. Nissen. The bill for Dr. Mahadevia's services date from August 3, 1988 to June 2, 1989. Finally, the bill at St. Luke's Hospital for sleep monitoring, and various testing, done June 7, 1989 and ordered by Dr. Mahadevia totaled $648.75. Page 8 CONCLUSIONS OF LAW 1. Whether a causal relationship exists between claimant's claimed injuries and the claimed disability and the nature and extent of any entitlement to benefits, if any. Claimant urges that the asthma attack of July 26, 1988, resulted from his two year exposure to paint fumes. His exposure came about while working for Wayne Carney. In accordance with Langford v. Kellar Excavating Grading, Inc., 191 N.W.2d 667 (Iowa 1971), since the exposure to paint fumes is the substantial factor in sensitizing claimant to further aggravation of his bronchial asthma, defendants are liable for causing permanent disability to claimant entitling him to industrial benefits. Defendants contend that claimant suffered an aggravation of a preexisting condition that did not cause a permanent injury to claimant's lungs. Claimant's subsequent aggravations are not attributable to the exposure experienced at Wayne Carney. The claimant has the burden of proving by a preponderance of the evidence that the injury of July 26, 1988, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 133 N.W.2d 867, 868 (Iowa 1965); Lindahl v. L. O. Boggs, 18 N.W.2d 607, 613-14 (Iowa 1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 73 N.W.2d 732, 738 (Iowa 1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 101 N.W.2d 167,171 (Iowa 1960). Expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 73 N.W.2d at 738. The opinion of the experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974). Moreover, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Sondag, 220 N.W.2d at 907. Finally, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other material circumstances. Bodish, 133 N.W.2d at 870; Musselman, 154 N.W.2d at 133. The Supreme Court has also observed that greater deference is ordinarily accorded expert testimony where the opinion necessarily rests on medical expertise. Sondag, 220 N.W.2d at 907. 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., 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 Page 9 disability. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980); Langford, 191 N.W.2d at 670. 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, 76 N.W.2d 756, 760-61 (Iowa 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. Gosek v. Garmer and Stiles Co., 158 N.W.2d 731, 737 (Iowa 1968); Barz v. Oler, 133 N.W.2d 704, 707 (Iowa 1965); Olson v. Goodyear Service Stores, 125 N.W.2d 251, 256 (Iowa 1963); Nicks v. Davenport Produce Co., 115 N.W.2d 812, 815 (Iowa 1962); Yeager v. Firestone Tire & Rubber Co., 112 N.W.2d 299, 302 (Iowa 1961); Ziegler v. United States Gypsum Co., 106 N.W.2d 591, 595 (Iowa 1960); Almquist v. Shenandoah Nurseries, 254 N.W. 35,38 (Iowa 1934). 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 caused by the aggravation. Barz, 133 N.W.2d at 707; Olson, 125 N.W.2d at 256; Yeager, 112 N.W.2d at 302; Ziegler, 106 N.W.2d at 595; Almquist, 254 N.W. at 38. In this instance, all of the doctors agreed that claimant's preexisting asthma was aggravated by his exposure to paint fumes while on the job. The question becomes whether the exposure to dust on July 26, 1988 as the triggering event for a bronchial asthma attack lighted up claimant's sensitivity to paint fumes traceable to claimant's job as a painter thereby causing a permanent disability. Dr. Madadevia, the primary treating physician indicated that claimant had developed a sensitivity to paint fumes as a result of his exposure to this environment on the job. This conclusion was corroborated by Dr. Gillilland. Dr. Mahadevia gave claimant a permanent functional impairment between 0 and 15 percent depending upon claimant's activities. However, both Dr. Jerome and Dr. Mahadevia indicated that the exposure and the subsequent asthma attack did not cause permanent lung damage.(3) However, Dr. Mahadevia did indicate that once claimant becomes sensitized to a substance the substance will continually cause an asthma attack upon exposure. Here, claimant was sensitized to paint fumes that upon re-exposure results in an asthma attack. As a consequence of the sensitization, claimant is restricted from returning to an environment where there are paint fumes, solvents, or turpentine. This is the most compelling evidence of permanency. Since the most substantial factor in claimant's sensitization process occurred while he was working for Wayne Carney, Wayne Carney (3). By its very nature bronchial asthma is a reversible airway obstruction disease. Over time and with sufficient aggravations, the diseases can lose its reversibility and cause permanent damage to the lungs. This has not occurred in the claimant. Page 10 is responsible for claimant's permanent partial disability. However, Dr. Mahadevia did not indicate that claimant was in a heightened state of reactivity constantly as a result of the exposure to paint fumes. Nor did he indicate that since claimant had become sensitized to paint fumes that he was necessarily more reactive to other substances. He was reactive to other substances before his exposure to paint fumes and that level of reactivity has not changed. Dr. Mahadevia explained that claimant would be more reactive to other substances in combination with an exposure to paint fumes. Once claimant's episode with paint fumes had passed his reactivity level would return to its normal position for claimant which is heightened due to his asthma and not the exposure to paint fumes. The subsequent aggravations to claimant's asthma were not caused by claimant's exposure to paint fumes. Those aggravations were caused by substances on those jobs and are separate injuries not chargeable to Wayne Carney. Where claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 258 N.W.2d 899, 902 (Iowa 1935) as loss of earning capacity and not a mere `functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal person. The essence of an earning capacity inquiry then, is not how much has the claimant been functionally impaired, but whether that impairment, in combination with the claimant's age, education, work experience, pre and post injury wages, motivation and ability to get a job within the stated restrictions, if any restrictions have been imposed, have caused a loss of earning capacity. Olson v. Goodyear Service Stores, 125 N.W.2d 251, 257 (Iowa 1963); Diederich v. Tri-City Railway Co., 258 N.W. 899, 902 (Iowa 1935); Peterson v. Truck Haven Cafe, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 654, 658 (1985); Christening v. Hague, Inc., 1 Iowa Industrial Comm'r Dec. No. 3, 529, 534-535 (1985). There are no weighting guidelines that indicate how each of the factors are to be considered. Nor is there any formulae which can be applied and then added up to determine the degree of industrial disability to the body as a whole. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience and general and specialized knowledge to make a finding with regard to the degree of industrial disability. See, Peterson, 1 Iowa Industrial Commissioner Decisions No. 3, at 658; Christening, 1 Iowa Industrial Commissioner Decisions No. 3, at 535. At the time of the injury, claimant was 35 years old. He has demonstrated that he is able to work with his disability. The medical evidence does not support claimant's contention that his continuing inability to hold down long term employment is attributable to his sensitization to paint fumes. Dr. Mahadevia indicated that claimant's continuing problem in that regard stems from his Page 11 preexisting asthma. While claimant was working for Mississippi Valley Blood Bank, Dr. Mahadevia specifically approved claimant's work environment. Claimant voluntarily quit that employment without discussing the decision with Dr. Mahadevia. Likewise, claimant quit his employment with Normandeau Associates for a variety of reasons but did not seek medical assistance for the apparent aggravation to his asthma. Moreover, claimant's past work history does not suggest that claimant stays with any job for any length of time. Claimant held 19 jobs in the space of 10 years. He changed jobs while working for Wayne Carney. Claimant has worked in manual labor jobs since he began working and this injury has not foreclosed claimant from opportunities in this area. Claimant would have been working at the time of the hearing but for an injury to his knee and back. On claimant's last job he was earning $8.00 per hour. Prior to that time, claimant was earning about $6.00 per hour. Due to his young age, his industrial disability is not as serious as it would be for an older employee. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (Appeal Decision April 28, 1989). Claimant's educational abilities demonstrate that he has the capacity to be retrained if he is given some assistance. Based upon the foregoing factors, all of the factors used to determine industrial disability, and employing agency expertise, it is determined that claimant sustained a 12% industrial disability. With regard to the claim for psychological injury, there is insufficient evidence in the record to show that claimant's depressive episodes were precipitated by claimant's injury at work. Dr. Hays cannot say with any certainty what caused claimant's mental problems. Claimant has failed to satisfy his burden and will take nothing from this proceeding regarding the psychological injury. As a result of claimant's injury he is also entitled to healing period benefits. Healing period benefits may be characterized as that period during which there is a reasonable expectation of improvement of a disabling condition and ends when maximum medical improvement is reached. Armstrong Tire and Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa Ct. App. 1981). In discussing the concept of healing period as contemplated by Iowa Code Section 85.34(1) (1991) the Kubli Court observed that recuperation refers to that condition in which healing is complete and the extent of the disability can be determined. Kubli, 312 N.W.2d at 65. The healing period ends when claimant returns to work. Boyd v. Western Home, File No. 890207, Slip Op. at 2, (Iowa Ind. Comm'r App. June 26, 1991); Bertlshofer v. Fruehauf Corporation, File Nos. 764496, 742752, Slip Op. at 6 (Iowa Ind. Comm'r App. April 14, 1988). The finding of a termination of healing period necessarily precludes the Page 12 discussion of a running award. Hoskins v. Quaker Oats, 2 Iowa Industrial Commissioner Decisions, No. 1, 181, 185 (App. 1985). Claimant returned to work for the Shoe Fixers on November 26, 1988. Claimant left this employment due to an aggravation suffered at this employment rather than an aggravation caused by exposure to paint fumes with Wayne Carney. His healing period ended at that point at the time he resumed full time work. Consequently, claimant is entitled to healing period benefits from July 26, 1988 to November 26, 1988. 2. Whether claimant is entitled to medical benefits, including a determination of causal connection to the work injury and the causal connection of this condition to a work injury. With regard to entitlement to medical benefits, claimant urges that defendants are liable for medical bills related to his current condition including his bills for psychological care. Defendants urge that they are only responsible for medical care attributable to the injury claimant suffered while he worked for Wayne Carney. They are not responsible for the cost of the subsequent aggravations caused by other employments of the claimant or the psychological services rendered to claimant. Under Iowa Code section 85.27(1991) an employer has the responsibility to provide an injured worker with reasonable medical care and has the right to select the care the worker will receive. The claimant has the burden of demonstrating that the medical services obtained were related to the injury in order to have the expenses reimbursed or paid. Auxier v. Woodward State Hospital, 266 N.W.2d 139, 144 (Iowa 1978). Additionally, in order for the employer to be held responsible for claimant's medical expenses, claimant must show that the treatment sought was either of an emergency nature or was authorized. Templeton v. Little Giant Crane & Shovel, 1 Iowa Industrial Commissioner Decisions No. 3, 702, 704 (App. 1985). An employee may engage medical services if the employer has expressly or impliedly conveyed to the employee the impression that the employee has authorization to proceed in this fashion. 2 Larson's Workmen's Compensation Section 61.12(g) (1990). If the treatment is unauthorized a claimant may still recover if the treatment improves the claimant's condition and the treatment ultimately mitigates defendants' liability. Thomas v. Broadlawns Medical Center, File No. 81240, Slip op. at pp. 6-8 (Iowa Ind. Comm'r October 31, 1990); Butcher v. Valley Sheet Metal, IV Iowa Industrial Commissioner Report 49 (1983); Rittgers v. United Parcel Service, III Iowa Industrial Commissioner Report 210 (1982). With regard to claimant's outstanding medical bills, a review of these bills shows that the bills for Dr. Hays, Dr. Nissen, and Vera French Community Health Center were attributable to claimant's depression. There is insufficient evidence in the record to find a casual connection between claimant's injury and his depression. Page 13 Defendants are not liable for those bills. The balance owed to Dr. Mahadevia appears to be for office visits on April 21, 1989 and June 2, 1989. By that time claimant was working for Mississippi Valley Blood Center and complaining of aggravations to his asthma condition resulting from his exposure to bleach and other chemical fumes on April 7, 1989. There is insufficient evidence to show that this incident is casually connected to claimant's exposure on July 26, 1988. Dr. Mahadevia did not offer any opinion that the visits after March, 1989 were related to the paint fume exposure at Wayne Carney. Consequently, defendants are not liable for this bill. The balance owed to St. Luke's hospital was for a variety of tests and a hospital course directed by Dr. Mahadevia. However, there is insufficient evidence to link this admission with the injury suffered on July 26, 1988. By this time, claimant had complained of successive aggravations of his asthma from a variety of work and non-work related substances. Additionally, claimant's depression from unknown causes was contributing to his sleep disorder. Finally, claimant's ulcer condition was evaluated. The record in this case does not support the causal link claimant requires to compel payment by defendants for these bills. Consequently, defendants are not liable for the charges owed to St. Luke's Hospital. Since claimant has failed to show that these expenses were causally connected to the injury suffered on July 26, 1988, the other issues raised in connection with claimant's entitlement to medical benefits are moot. order THEREFORE, it is ordered: 1. Wayne Carney and Aetna shall pay to claimant healing period benefits for the period of time beginning on July 26, 1988 and ending on November 26, 1988 at the rate of two hundred and thirty and 14/100 dollars ($230.14). As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 2. Wayne Carney and Aetna shall pay to claimant permanent partial disability benefits in the amount of twelve percent (12%) with payment commencing on November 27, 1988 at the rate of two hundred thirty and 14/100 dollars ($230.14). As these benefits have accrued, they shall be paid in a lump sum together with statutory interest thereon pursuant to Iowa Code section 85.30 (1991). 3. Wayne Carney and Aetna shall have a credit in the amount of seventy-nine and six-sevenths (79 6/7) weeks against any amounts owed. 4. The costs of this action totaling one hundred sixty-five and 50/100 dollars ($165.50) shall be assessed to Wayne Carney and Aetna pursuant to rule 343 IAC 4.33. 5. Wayne Carney and Aetna shall file claim activity reports as required by rule 343 IAC 3.1. Signed and filed this ____ day of August, 1991. Page 14 ________________________________ ELIZABETH A. NELSON DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Joseph M Bauer Attorney at Law 100 Court Avenue Ste 203 Des Moines Iowa 50309 Ms Linda E Frischmeyer Attorney at Law 1750 2nd Avenue PO Box 3250 Rock Island Illinois 61204 5-2205 - 5-2206 Filed August 13, 1991 ELIZABETH A. NELSON before the iowa industrial commissioner ____________________________________________________________ : MICHAEL L. PAPALE, : : Claimant, : : vs. : : File No. 894922 WAYNE CARNEY PAINTING, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA LIFE AND CASUALTY : COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-2205, 5-2206 Claimant aggravated a preexisting asthma condition while working for a painting contractor. Claimant was 37 at the time of hearing. He is capable of retraining. Claimant worked after the exposure to dust and paint fumes in other occupations for wages between $6.00 and $8.00 per hour. Claimant cannot return to an environment where he would be exposed to paint fumes and other chemical odors related to paint. Claimant was awarded a 12 percent industrial disability.