Page 1 before the iowa industrial commissioner ____________________________________________________________ : TIMOTHY L. MALLOY, : : Claimant, : : vs. : : File No. 900375 EBASCO CONSTRUCTORS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYER'S CASUALTY OF TEXAS, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Timothy L. Malloy, claimant, against Ebasco Constructors, Inc., employer (hereinafter referred to as Ebasco), and Employer's Casualty of Texas, insurance carrier, defendants, for workers' compensation benefits as a result of an alleged injury on October 29, 1988. On September 5, 1991, a hearing was held on claimant's petition and the matter was consid ered fully submitted at the close of this hearing. The parties have submitted a prehearing report of con tested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the prehearing report, the parties have stipulated to the following matters: 1. On October 29, 1988, claimant received an injury which arose out of and in the course of his employment with Ebasco. 2. The injury is a cause of permanent industrial dis ability to the body as a whole. 3. With reference to the computation of claimant's rate of weekly compensation, claimant is entitled to marital status and three exemptions. 4. All requested medical benefits have been or will be paid by defendants except that claimant now seeks alternate care from a chiropractor. issues Page 2 The parties submitted the following issues for determi nation in this proceeding in the prehearing report: I. The extent of claimant's entitlement to permanent disability benefits; II. Claimant's rate of compensation; III. Claimant's entitlement to penalty benefits, if any; and, IV. The extent of claimant's entitlement to alternate chiropractic care. findings of fact Having heard the testimony and considered all the evi dence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendants placed claimant's credibility at issue during cross-examination as to the extent of his disability. From his demeanor while testifying, claimant is found credible. Claimant's personal assessment of his disability was veri fied by the credible testimony of claimant's wife and his two children. At the time of the injury, claimant was a boiler maker working out of the union hall. Claimant was employed by Ebasco in the construction and remodeling of power plants. Claimant had worked for Ebasco off and on for six years prior to the injury. Claimant last worked for Ebasco on January 6, 1989. He has been unemployed since. Claimant's boiler maker work was similar to the work of an iron worker in that a boiler maker works with large steel construction material such as girders and beams and the work is usually above ground and involves heavy lifting from 50 to 200 pounds. However, boiler makers perform work within the existing or recently constructed structures previously erected by iron workers. During 1988, claimant's normal rate as a boiler maker was $18.00 an hour but at the time of the injury, he was under a special union pay arrangement with Ebasco in which he was earning $15.45 per hour. In addition, Ebasco paid $1.25 per hour for each hour worked into a health and welfare fund and $l.30 per hour for each hour worked into a pension fund on behalf of claimant. Claimant's work injury consisted of a herniated disc of the lower spine which occurred while attempting to manually lift, along with fellow employees, a very heavy circular steel beam. Claimant said that at the time of the injury it felt as if someone had stabbed him in the back with a knife. Claimant was initially treated conservatively with work restrictions and medications over the next few months by a family practice physician, John N. Redwine, D.O.. When this treatment failed to alleviate claimant's complaints of low back pain and right leg pain, Dr. Redwine referred claimant in February 1989, to an orthopedic surgeon, William O. Samuelson, M.D. Claimant continued to work as a boiler maker following the injury despite his pain and physician Page 3 imposed work restrictions due to accommodations made by fel low employees. However, claimant left work on January 6, 1989, because continuing to work was not possible. Claimant explained that his right leg was "giving out" and that he experienced increased low back and leg pain. Claimant has not returned to work in any capacity since that time. After several months of additional conservative care, Dr. Samuelson performed surgery on claimant's lower spine in September 1989. Intensive treatment after this surgery con tinued for approximately one year. This treatment consisted of medication, rest, exercise, a back brace, prescribed activity, physical therapy and other modalities. Unfortu nately, this treatment, in large part, failed to alleviate much of claimant's pain problems. Claimant stated that the surgery was at least partially successful in that the "giving out" of this right leg ended and the numbness and coldness of his right foot also was alleviated. However, his severe low back pain radiating into his leg continued and was still present at the time of hearing. As a result of the work injury of October 29, 1988, claimant has a 20 percent permanent partial impairment to the body as a whole. More importantly, from an industrial disability standpoint, claimant is permanently restricted by the work injury from frequent lifting over 10 pounds and he cannot lift, even occasionally, more than 25 pounds. Claimant is severely limited in twisting and bending activi ties. He cannot stand or sit for over one hour without intensive pain. These findings are based upon the views of claimant's primary treating physician, Dr. Samuelson, as set forth by Jim Coyle, M.S., a vocational consultant, in let ters authored by Coyle dated June 26 and July 22, 1991, to the defendant insurance carrier, a part of joint exhibit B. These letters appear to be the most recent of Dr. Samuelson's views. Dr. Samuelson's views are consistent with the opinions of another orthopedic surgeon, John J. Dougherty, M.D., who evaluated claimant in October 1990, and, for the most part, is consistent with the views of a neurosurgeon, Charles Taylon, M.D., who evaluated claimant in June 1991. The findings are also consistent with the views of an evaluating chiropractor, Mark A. Kruse, D.C., who also evaluated claimant in June 1991. In addition, claimant has constant pain ranging from four to five on a ten point scale on a day-to-day bases. This pain increases to a level seven on bad days. It is further found that if claimant sits for more than one hour, he experiences severe pain which requires his change of position or the taking of medication. A prolonged period of sitting and standing must be followed by a period of rest while lying down between 15 to 30 minutes and this rest while laying down must occur approximately twice a day. Claimant can walk only 12 to 14 blocks at one time. Claimant cannot remain in one position for prolonged periods of time. Claimant can only sleep two to three hours at one time after which he usually awakens, moves about, takes med ication or seeks back rubs from his wife. These back rubs also involve use of an analogic balm type of substance. These findings are all based upon the credible testimony of Page 4 claimant and his family during the hearing and from the undersigned's personal observations of claimant while testi fying. Claimant has a significant amount of permanent partial impairment as a result of two prior work injuries. In 1979, claimant received a blow to the head which caused signifi cant neck strain and continuing problems in both of his shoulders. In 1982, claimant suffered a left A/C shoulder joint separation and impingement syndrome in the left shoul der. Claimant lost time from this work as a result of these conditions and continued to have pain subsequent to his release from medical care. Treating and evaluating physi cians at the time opined that claimant suffered approxi mately a five percent permanent partial impairment to the body as a whole from the 1979 injury and a seven to eight percent permanent partial impairment to the left arm from the 1982 injury. Claimant stated that he had occasional pain at work from these injuries but that he "bit the bullet." Claimant said that he treated the problems himself with nonprescription medication and neck and shoulder rubs from his wife. Despite the prior physical impairment, claimant fully returned to work after each injury and worked uninterrupted from eight to ten years prior to the injury in this case. Consequently, it is found that claimant lost no earning capacity from either of these injuries or prior existing permanent partial impairment. In any event, both of the prior injuries and disability were related to his employ ment. Consequently, as will be explained in the conclusions of law section in this decision, any apportionment of dis ability based upon these prior injuries would be improper. As a result of the work injury of October 29, 1988, claimant has suffered a total loss of earning capacity. Claimant is unemployable due to his severely restricted physical capacities and his severe learning disabilities. Claimant does not appear to be able to function even in regular part-time sedentary jobs given the need for periodic bed rest and medications. Claimant is also functionally illiterate. Claimant has an eighth grade education but had to go to school for ten years to achieve this. Despite his attendance at grade school testing of claimant, subsequent to this work injury, has found that he can only read at the second grade level and cannot write at all. Although he is in the process of taking special reading courses at a local community college, and this training has improved his read ing abilities to some extent, he still cannot read a newspa per or even simple notes given to him by his wife. Claimant is dyslectic according to testing of claimant at the Univer sity of Iowa Hospitals and Clinics after the injury. Claimant's testimony at hearing demonstrated his difficul ties in articulating clearly. Claimant is no longer able to return to boiler maker work and can no longer perform in any of the jobs that he has held in the past. Claimant has pre viously worked unloading trucks and box cars, in meat pack ing plants, as a semi truck driver requiring heavy lifting to unload trucks and also as an iron worker for a period of time. Again, all these jobs required work involving lifting Page 5 over 50 pounds and repeated bending, stooping and lifting. This is the work that claimant can no longer perform. If claimant is to return to the work force, there must be retraining and vocational rehabilitation. However, this is not likely. With the possible exception of a good work record, claimant has virtually no transferable skills which could be applied to an effort of vocational rehabilitation. There has been two attempts to evaluate claimant's potential for vocational rehabilitation. At the Spinal Center at the University of Iowa Hospitals and Clinics, claimant was rejected from the program twice in 1990. Evaluators in this program rejected claimant because of claimant's pessimistic view of their potential to help him. Claimant testified that they had asked him to promise that he would improve and he said that he could not do that. There appears to be somewhat of a lack of communication between claimant and the evaluators with reference to any such promise but, in any event, the Spinal Center physicians and evaluators never questioned, at anytime, claimant's motivation or sincerity in his efforts to return to the labor market. An attempt to measure claimant's functional abilities was made at the State Vocational Rehabilitation Facility in Des Moines, Iowa. This program normally takes approximately three weeks. Claimant was compelled by his low back pain and leg pain to leave this program after only a short time. Again, counselors at this facility never questioned claimant's motivation. These counselors only question claimant's physical ability to continue in the evaluating process due to his severe pain. Vocational rehabilitation counselors have been retained by defendants, but these efforts have not identified any job available to claimant. A labor market survey was conducted showing some possible openings in the future in the welding area but there does not appear to be any assessment of the physical requirements of any such work. Claimant did express an interest in becoming a safety inspector on con struction sites but this was rejected by counselors as claimant does not have the requisite abilities or education. Claimant's interest in such work is viewed by his counselors as unrealistic. Claimant is 41 years of age. Claimant should be in the most productive time of his working career. His disability is more than would be the case for a younger or an older individual. Claimant has contacted Job Service to seek suitable employment in the area of his residence. He has also made a reasonable effort to secure suitable employment by seeking retraining at a local community college to improve his reading. Defendants have failed to show that there is any employment available to claimant. With reference to claimant's rate of compensation, it is found from exhibit D that claimant worked a total of 620.75 hours over a 12 week period covered by the exhibit. Given claimant's testimony as to his hourly rate at Ebasco Page 6 at the time of the injury, claimant's gross earnings for the period was $9,590.59 and his gross weekly earnings were $799.22. With reference to claimant's claim for penalty bene fits, claimant complained that many of his workers' compen sation weekly payments were delayed for a long period of time. However, he was not specific as to when this occurred or the length of the delay. He also testified that many of the late payments were eventually paid along with some advanced payments. Claimant's own testimony fails to show unreasonable conduct by the defendant insurance carrier. With reference to claimant's desire to receive treat ment from Dr. Kruse, a chiropractor, in the only report sub mitted into the evidence from Dr. Kruse, the doctor fails to suggest any treatment alternative by him that would be bene ficial to claimant. Therefore, claimant has failed to show that any such alternative care would be necessary or in the best interest of claimant. Page 7 conclusions of law I. Claimant must establish by a preponderance of the evidence the extent of weekly benefits for permanent dis ability to which claimant is entitled. As the claimant has shown that the work injury was a cause of a permanent physi cal impairment or limitation upon activity involving the body as a whole, the degree of permanent disability must be measured pursuant to Iowa Code section 85.34(2)(u). How ever, unlike scheduled member disabilities, the degree of disability under this provision is not measured solely by the extent of a functional impairment or loss of use of a body member. A disability to the body as a whole or an "industrial disability" is a loss of earning capacity resulting from the work injury. Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 (1935). A physical impairment or restriction on work activity may or may not result in such a loss of earning capacity. The extent to which a work injury and a resulting medical condi tion has resulted in an industrial disability is determined from examination of several factors. These factors include the employee's medical condition prior to the injury, imme diately after the injury and presently; the situs of the injury, its severity and the length of healing period; the work experience of the employee prior to the injury, after the injury and potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 28, l985). Apportionment of disability between a preexisting con dition and an injury is proper only in those situations where a prior injury or illness, unrelated to employment, independently produces some ascertainable portion of the ultimate disability. Tussing v. George A. Hormel & Co., 461 N.W.2d 450 (Iowa 1990); Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984). Prior existing impairment does not mandate a finding of a loss of earning capacity when there has been no interruptions in earnings or employment. See Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991). Based upon the finding that claimant suffered no prior loss of earning capacity before the work injury, no apportionment will be made. Further more, any such apportionment would be improper as it was also found that the prior impairment and injuries were related to his employment. Although it was shown that claimant may be physically capable of performing some limited types of light duty or sedentary work, it was found that such work is likewise not available to him due to his mental impairments. Claimant requests an award of permanent total disability under the Page 8 application of the so-called "odd-lot" doctrine. This doc trine is a procedure device designed to shift the burden of proof, with respect to employability, to the employer in a certain factual situation. Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986). A worker becomes an odd-lot employee when injury makes the worker incapable of obtaining employment at any well known branch in the labor market. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985). In Guyton, the Supreme Court held that 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 shifts to the employer. If the employer fails to produce such evidence and if the trier of fact finds that the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Id. at 106. In the case sub judice, the application of the odd-lot doctrine would be appropriate as claimant made a reasonable effort to find suitable work. He also has made an attempt to return to work by attending retraining classes to improve his reading skills. An effort at retraining is viewed at by this agency as constituting a reasonable effort to find employment sufficient to invoke the odd-lot doctrine. Pyle v. Carstensen Freight Lines, Inc., Appeal Decision filed July 24, 1987. However, it is unnecessary to apply such an automatic rule to arrive at the conclusion that claimant is unemployable and entitled to permanent total disability. Claimant clearly is unable to work due to his severe physi cal and mental impairments. Based upon a factual finding of a total loss of earning capacity, claimant is entitled as a matter of law to perma nent total disability benefits under Iowa Code section 85.34(3) which consists of weekly benefits for an indefinite period of time during the period of his disability. If claimant's disability remains unchanged in the future, these benefits will continue for the rest of his life. II. With reference to the dispute over claimant's rate of weekly compensation, at hearing the parties indi cated that they agreed that exhibit D should be used to cal culate the rate. Exhibit D shows the total number of hours worked over a 12 week period prior to the injury. The dis pute is two-fold. First, claimant contends that the amount Ebasco paid into the pension fund should be calculated in computing claimant's rate. Secondly, although the parties agreed that overtime should be calculated using the straight rate of $15.45 per hour, there was a difference in each par ties' mathematical calculations. With reference to the inclusion of the pension fund contribution, the undersigned finds in favor of defendants. Iowa Code section 85.37 states that an injured worker's weekly benefit amount shall be upon the basis of 80 percent of the worker's weekly spendable earnings. Iowa Code sec tion 85.61(ll) defines weekly spendable earnings as that amount remaining after payroll taxes are deducted from gross Page 9 weekly earnings. Iowa Code section 85.61(12) defines gross weekly earnings as reoccurring payments before any autho rized or lawfully required deduction or withholding of funds by the employer, excluding irregular bonuses, retroactive pay, overtime, penalty pay, reimbursement of expenses, expense allowances and employer's contribution for welfare benefits. Claimant cites no authority for its position and the undersigned can find no appeal decision or supreme court decision on this precise point. Usually, employer contributions to fringe benefit pro grams are not included. However, it is also the current policy of this agency to include in gross earnings the amounts an employer pays pursuant to a deferred compensation program. The issue is essentially whether the contribution is simply a diversion of earnings which remain the property of claimant and will eventually be received by claimant in full or a payment to a program which will provide benefits conditioned upon the occurrence of certain events such as an insurance program. In this case, claimant's vesting and control over the employer's contribution on his behalf to the Boiler Maker--Blacksmith National Pension Trust pursuant to Article 17 of the union contract exhibit G, is unknown. Particulars of the pension plan are contained in Appendix C which was not placed into the evidence. Therefore, claimant's assertions cannot be fully examined and the con tributions will not be included in computing claimant's rate of compensation in this case. As set forth in the findings of fact, according to exhibit D, claimant's gross weekly earnings are $799.22 per week. According to the commissioner's rate booklet for an injury in October 1988 and given the stipulations in the prehearing report as to claimant's martial status and enti tlement to exemptions, claimant's proper rate of weekly com pensation is $473.21. III. Claimant seeks additional benefits for an unrea sonable delay in paying benefits under the unnumbered para graph four of Iowa Code section 86.13. This code provision allows the undersigned to award additional benefits for unreasonable conduct in handling the claim by the employer or the employer's insurance representative. Although delays in paying of weekly benefits is certainly a very serious matter, claimant failed to be specific as to when the events occurred or the duration of the delays. Claimant also tes tified at the hearing that whenever there was a delay in the making of the payments, the back payments also including advance payments. Claimant did not appear to be too upset with such practices. Therefore, claimant, by his own testi mony, has failed to show unreasonable conduct sufficient to warrant the imposition of penalty benefits in this case. IV. Claimant seeks chiropractic care from Dr. Kruse. Alternate care is available under Iowa Code section 85.27 when an injured worker is dissatisfied with the treatment provided by an employer. In such event, claimant is to com municate his dissatisfaction to the employer and request Page 10 alternate care. If such a request is denied, claimant can apply to this agency for an order to secure such care. In the case sub judice, apart from the lack of a show ing of any actual request for this care prior to hearing, there is no medical opinion offered to show the necessity of any such care. Dr. Kruse, in his lengthy medical report, only evaluated claimant's disability and potential for reha bilitation. At no time did Dr. Kruse suggest any treatment of claimant by himself. Absent such a showing, the request for alternative care from Dr. Kruse must be and is denied. However, as claimant's condition is ongoing, this denial of alternate care does not preclude a future request and proper showing at a later date. The undersigned should not have to advise defendants that it is in their best interest to provide any reasonable treatment alternative in an attempt to improve claimant's condition. If it is true as suggested by claimant's attorney at hearing that Dr. Kruse has been successful with other injured workers in the past, such care, if suggested by Dr. Kruse, should be seri ously considered by the defendants. order THEREFORE, IT IS ORDERED THAT: 1. Defendants shall pay to claimant permanent total disability benefits at the rate of four hundred seventy-three and 21/l00 dollars ($473.21) per week from January 6, 1989, for an indefinite period of time during his period of disability. 2. The claims for penalty benefits under Iowa Code section 86.13 and for alternate care under Iowa Code section 85.27 by Dr. Kruse are denied. 3. Defendants shall pay accrued weekly benefits in a lump sum and shall receive credit against this award for all benefits previously paid. 4. Defendants shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 5. Defendants shall pay the costs of this action pur suant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 6. Defendants shall file activity reports on the pay ment of this award as requested by this agency pursuant to rule 343 IAC 3.l. Signed and filed this ____ day of September, 1991. Page 11 ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas M. Plaza Attorney at Law 701 Pierce St STE 200 P O Box 3086 Sioux City IA 51102 Mr. Duane E. Hoffmeyer Attorney at Law 1721 Jackson P O Box 2051 Sioux City IA 51104 1804; 3001; 4000.2; 4300 Filed September 19, 1991 LARRY P. WALSHIRE before the iowa industrial commissioner ____________________________________________________________ : TIMOTHY L. MALLOY, : : Claimant, : : vs. : : File No. 900375 EBASCO CONSTRUCTORS, INC.,: : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYER'S CASUALTY : OF TEXAS, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1804 Permanent total disability benefits awarded to unemployed and functionally illiterate boiler maker. 3001 Claimant requested inclusion in gross earnings his employer's contribution to a pension fund. This request was denied but it was recognized that such a contribution could be included upon a showing that the contribution to the pension plan is the property of the employee which will, in any event, revert to claimant at some future date. This was based upon the same rationale for the agency policy to include an employer contribution under a deferred compensation program. 4000.2 A claim for penalty benefits was denied as there was no showing of unreasonable conduct. 4300 An application of an odd-lot doctrine was argued but use of this doctrine was unnecessary to arrive at an award of permanent total disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ THOMAS J. PRICE, Claimant, File No. 900497 vs. A R B I T R A T I O N THE CITY OF DES MOINES, D E C I S I O N Employer, Self-Insured, Defendant. ________________________________________________________________ INTRODUCTION This is a proceeding in arbitration brought by Thomas J. Price, claimant, against The City of Des Moines, employer and self-insured defendant, for benefits as the result of an injury which occurred on November 4, 1988. A hearing was held at ?Des Moines, Iowa, on April 5, 1994, and the case was fully submitted at the close of the hearing. Claimant was represented by Robert W. Pratt. Defendant was represented by Mary G. Hellweg. The record consists of the testimony of Thomas J. Price, claimant, Cynthia L. Price, claimant's common law wife, claimant's exhibits 1 through 52 (Transcript page 11) and Defendant's exhibit A, pages 17, 18, 22, 23, 44, 45, 46 and 49 through 53 (Tran. p. 62). The deputy ordered a transcript of the hearing. Both attorneys filed excellent post-hearing briefs. STIPULATIONS The parties stipulated that claimant sustained an injury on November 4, 1988, to his left knee that arose out of and in the course of his employment and that the injury was the cause of both temporary and permanent disability. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant is entitled to certain medical benefits for an extended hospital stay for treatment for endocarditis (Tran. p. 8; Defendant's Brief, page 2). Whether claimant is entitled to temporary or permanent disability benefits, to include whether claimant is entitled to scheduled member benefits for an injury to the left leg or whether claimant is entitled to industrial disability benefits for an injury to the body as a whole (Tran. p. 8). What is the proper rate of compensation to include whether claimant is entitled to a rate based on the single status or the married status, as well as a determination of claimant's gross weekly wage (Tran. pp. 9 & 10). FINDINGS OF FACT It is determined that claimant is entitled to the entire medical expense at Mercy Hospital Medical Center for the period from November 7, 1988 to December 8, 1988 in the total amount of $29,685.45 (Claimant's Exhibit 52, pages 104 & 109-137). Claimant, born December 31, 1952, was 35 years old at the time of the injury on November 4, 1988 and 41 years old at the time of the hearing on April 5, 1994 (Tran. p. 12). Claimant's past employments include instrument man on a survey crew, maintenance and security employee, machinist and machine operator (Clm. Ex. 47, pp. 84, 87 & 88; Tran. pp. 21 & 22). Claimant's employment application for this employer is dated May 1, 1987 (Ex. 47, p. 84; Tran. p. 21). Claimant was employed by employer as a construction inspector trainee taking samples and running tests on sand and gravel to insure that it met city paving specifications. This was a seasonal job during the construction period. At the time of this injury it was claimant's second year performing this job (Tran. pp. 13 & 14). Claimant testified that he earned $6.75 per hour and worked a lot of overtime because this was a busy period of time for this job (Tran. p. 15). Employer agreed that claimant's hourly rate of pay was $6.75 per hour (Ex. A, p. 46). Claimant testified that he had lived in a common law marriage with his common law wife for many years, that they held themselves out as man and wife and that they filed joint tax returns (Tran. pp. 16 & 17). Cynthia L. Price testified that her name is Cynthia L. Price and that she is the spouse of Thomas J. Price. She testified that they have cohabited for 17 years together. She related that they have held themselves out to others as husband and wife for approximately 13 or 14 years and that they have filed joint tax returns for the same period of time, 13 or 14 years (Tran. pp. 53 & 54). Several physicians referred to Cynthia as claimant's wife, as well as the social security administrative law judge. Claimant testified that he was in relatively good health when he began work for the city (Tran. p. 20). His employment application denied any physical limitations that would preclude him from performing the work for which he was being considered (Clm. Ex. 47, p. 85). Claimant denied any personal or family history of endocarditis (Tran. p. 27). Claimant further denied any previous problems with his heart or aorta before this injury on November 4, 1988. There is no evidence of treatment for endocarditis prior to this injury. Claimant did admit that he had a heart murmur but he added that it had never required any treatment before November 4, 1988, the date of this injury (Tran. p. 34). Claimant testified that on Friday, November 4, 1988, he stumbled on a metal sewer pipe that extended about eight inches up from the floor right in the middle of the room. Claimant related that he twisted his left knee, he heard a loud popping sound in his knee and then he fell to the floor. Claimant stated that he knew he had done something serious to his knee at that time (Tran. p. 17). Claimant testified that he reported the injury to his supervisor and that he was sent to see James L. Blessman, M.D., at the city Employee Health Clinic (Tran. p. 18). The clinic records show that on Friday, November 4, 1988, claimant was diagnosed as having left knee strain. Crutches, ice and medications were prescribed (Clm. Ex. 1, p. 1). Claimant testified that he was taken off work at that time and that he has not been able to return to work since the day of the injury (Tran. p. 18). Claimant related that he did attempt to perform some light duty, basically sitting in a chair, but that he did not perform any real work. Claimant testified that this lasted for about a month and then he was fired without any reason given (Tran. pp. 19 & 20). On Saturday, November 5, 1988, Dr. Blessman referred claimant to Robert Breedlove, M.D., an orthopedic surgeon (Clm. Ex. 1, p. 1). Likewise, on Saturday, November 5, 1988, at the Mercy hospital emergency room, Dr. Breedlove diagnosed an anterior cruciate ligament rupture, acute. The left knee was aspirated and claimant was given an injection. He was also instructed to report for surgery on Monday, November 7, 1988 (Ex. 2, p. 7). Claimant was admitted to Mercy Hospital on Monday, November 7, 1988 for a left anterior cruciate rupture and possible meniscus pathology. The admission form shows that claimant reported a systolic murmur, believed to be congenital which Dr. Breedlove reported at that time (Clm. Ex. 3, pp. 8 & 9). A diagnostic arthroscopy of the left knee was planned to see if the tear was repairable and to irrigate the wound. Dr. Breedlove wrote that he explained the risks to both claimant and his "wife." (Clm. Ex. 3, p. 9). Dr. Breedlove determined during the arthroscopy that there was a complete tear of the anterior cruciate ligament so severe that a repair would not be of any value. He reported that the medial and lateral meniscus appeared to be normal (Ex. 6, p. 13). Mark Collison, M.D., reported on November 7, 1988, that during the arthroscopy ". . . it was noted that the patient had a cool left foot and lower left leg with minimal pulses. Therefore, surgery was put on hold until this problem could be evaluated." (Ex. 4, p. 10) He said there was slow capillary refill to the toes and normal coloration did not appear for 20 minutes (Ex. 6, p. 13). Dr. Collison further reported that claimant had no past circulatory problems until after this injury to the knee and two days prior to this arthroscopic surgery (Ex. 4, p. 10). Dr. Collison suspected a number of reasons for this arterial insufficiency of the left leg. He mentioned thrombus, embolus, inflammatory arteritis and ". . . and with pathologic heart murmur must certainly consider cardiac source, and with his drug history SBE [subacute bacterial endocarditis] is a possibility." (Clm. Ex. 4, p. 11). The bracketed words were supplied by the deputy. Dr. Collison then constructed this plan: 1. vascular surgery consult, 2. noninvasive Doppler studies of the lower extremities, 3. an echocardiogram regarding his heart disease and 4. labs to rule out diabetes or inflammatory disease of the arteries (Clm. Ex. 4, p. 11). Claimant testified that a local anesthetic was applied at the time of the surgery and that he was awake during the procedure (Tran. pp. 23 & 24). He related that a tourniquet was applied high up on his left leg almost into his groin (Tran. p. 24). Claimant explained that three incisions were made in his left knee. He related that an arthroscope was inserted, which is like a miniature television camera, and the inside of his knee appeared on a television screen. Claimant said that he could see that a part of the knee was completely torn apart, wasn't there anymore, just shredded. He said Dr. Breedlove also cleaned out the area. Claimant then testified that Dr. Breedlove became panicky and worried because there wasn't a normal blood flow into his left leg (Tran. p. 25). Claimant said that they could not find a pulse in his left foot. He related that he was then taken into another room and some dye was shot into him and they found a large clot in his groin where the tourniquet had been (Tran. p. 26). Claimant testified that from what he observed he believed that they had placed the tourniquet too tight because when they tried to loosen it they could not get the blood to flow (Tran. p. 36). Claimant further testified that Charles R. Cagin, D.O., came to the same conclusion (Tran. pp. 36 & 37). Also on November 7, 1988, Anson Yeager, M.D., concluded that claimant may have suffered an acute arterial injury at the time he twisted his knee at work. Dr. Yeager also ruled out prior vascular problems. Dr. Yeager stated, This 35-year-old white male status post acute orthopedic left knee injury due to twisting and falling which occurred Friday, 3 days ago. No prior history of major arterial problems though there is a history of IV drug abuse and a systolic heart murmur. Upon questioning, the patient describes numbness and coolness in the foot which he noticed Friday evening following the injury. This has persisted to some degree. Today after spinal anesthesia and arthroscopy, the foot took approximately 15 minutes to return to capillary refill following deflation of the tourniquet. He has prior to the injury no history suggestive of claudication or arterial problems. . . . History and findings suggest acute arterial injury at the time of his injury Friday. . . . Based on exam and mechanism of injury, popliteal artery injury would be suspected, likely an intimal tear due to stretch injury. At present this will require arterial reconstruction at an early date. (Ex. 5, p. 12) The following day, Tuesday, November 8, 1988, a femoral arteriogram disclosed a total occlusion of the left femoral artery. Also, on Tuesday, November 8, 1988, a follow-up urokinase infusion lasting two and one-half hours and a follow-up angiogram demonstrated no lysis of the clot. Therefore, the patient was prepared for embolectomy surgery (Ex. 7, p. 14). Thus, on Tuesday, November 8, 1988, David Stubbs, M.D., performed a left femoral thrombectomy with operative arteriogram. Dr. Stubbs causally links the left femoral artery problem to this injury (Ex. 9, p. 16). Dr. Stubbs stated, This 35-year-old male who sustained an injury to his left knee last Friday. By that evening he noticed numbness and some coolness with purple discoloration of the left foot. He ultimately sought medical attention and was identified as having probable a cruciate ligament damage to the knee and was also noted to have diminished pulses in the left foot. Arthroscopy revealed an anterior cruciate tear and an arteriogram revealed occlusion secondary to thrombus of the left superficial femoral artery. Attempts at Urokinase dissolution of the clot were unsuccessful and the patient presents now for definitive thrombectomy. (Ex. 9, p. 16) Also on Tuesday, November 8, 1988, at the request of Dr. Breedlove, the authorized treating orthopedic surgeon, an echocardiogram was performed by Dr. Cagin, which disclosed concentric left ventricular hypertrophy with associated aortic stenosis and aortic insufficiency. The report further showed vegetation of the aortic valve leaflets was strongly suggested (Ex. 8, p. 15). On November 10, 1988, a consultation report authored by Dr. Cagin states that based upon the medical records and his physical examination the following impression was formed. (Again, this consultation was requested by Dr. Breedlove who was the authorized treating physician and orthopedic surgeon). "IMPRESSION: 1. Vegetative endocarditis of the aortic valve, possible secondary to (a) intravenous drug use, (b) poor oral hygiene and lack of adequate dental prophylaxis. 2. Congenitally bicuspid aortic valve. 3. Combined aortic stenosis with aortic insufficiency. 4. Peripheral embolization documented of the left superficial femoral artery, status post embolectomy. 5. Torn anterior cruciate ligament." (Ex. 11, p. 18). In this same report Dr. Cagin recommended to Dr. Breedlove that claimant receive the endocarditis coverage recommended by Dr. Collison. Dr. Breedlove is the authorized treating physician and he is the orthopedic surgeon selected by Dr. Blessman of the city Employee Health Clinic. Dr. Collison and Dr. Cagin are physicians selected by Dr. Breedlove. More specifically, Dr. Cagin stated to Dr. Breedlove on November 10, 1988: PLAN: Agree with endocarditis coverage as outlined per Dr. Collison. I would however, recommend continuing full anticoagulation. I will follow along and advise accordingly. I would recommend transferring to Telemetry floor to monitor for development of heart block which would not be an unexpected complication in a patient such as this. I would also recommend drawing antistreptolysin 0 titers as well as teichoic acid antibody titers. Thank you for referring this patient to me and allowing me to share in his care and management. If you have any questions, please do not hesitate to contact me. (Ex. 11, p. 19). Thus, it should be emphasized that Dr. Cagin stated that the endocarditis coverage outlined by Dr. Collison should be carried out. Therefore, it can be seen that the extended hospitalization for endocarditis was not requested by claimant, but rather was ordered by physicians who were authorized treating physicians. Furthermore, it is a well known fact that a patient in a hospital (in particular one in critical condition) is not in a position to controvert what the doctors order and does not have the knowledge or expertise to interfere with the care that the doctors order. During claimant's extended hospitalization until December 8, 1988, claimant continued to be examined and treated for his left leg as well as for endocarditis. His left femur was x-rayed on November 20, 1988 (Ex. 14, p. 22). An MRI was performed on his left knee on November 25, 1988, which disclosed (1) rupture of the anterior cruciate ligament, (2) meniscal tear, posterior horn of medial meniscus, and (3) joint effusion (Ex. 15, p. 23). Therefore, not all of claimant's treatment up until December 8, 1988 was for endocarditis but some of it was for the left leg injury itself. The discharge summary from the hospital of December 8, 1988, signed by Dr. Breedlove, states that the admitting diagnosis was left anterior cruciate ligament rupture, possible medial meniscus injury. Then, Dr. Breedlove shows that the principal diagnosis (which is defined as "that condition which, after study, is determined to have occasioned the admission of the patient to the hospital") was a peripheral embolization of the left superficial femoral artery. Therefore, the authorized treating physician and orthopedic surgeon attributes this hospitalization to the cruciate ligament rupture and the embolization of the superficial femoral artery (Ex. 17, p. 25). Claimant's heart condition is only shown as a secondary diagnosis which according to the report is defined as complications or comorbities. These related complications or comorbities are shown as bicuspid aortic valve, vegetative endocarditis of the aortic valve, history of intravenous drug abuse and aortic stenosis with aortic insufficiency. Claimant testified that the clot prolonged his hospital stay and that he spent approximately 31 days in the hospital (Tran. pp. 27 & 28). By way of summary, claimant sustained a traumatic injury to his left knee. It was diagnosed as a complete tear of the anterior cruciate ligament. During arthroscopy surgery an embolization was discovered and an embolectomy was subsequently performed on the following day. Three sources or causes of the embolization have been suggested. (1) It has been suggested that the knee injury itself was the cause of the embolization, (2) it has been suggested that the tourniquet used during the arthroscopy was the source or cause of the embolization and (3) it was also suggested that claimant's preexisting heart condition was the cause of the embolization. In any event, defendant- employer eventually accepted liability for the treatment of the embolization but denied treatment for an extended hospital stay to complete the treatment which was ordered by the authorized treating physicians for all three (1) left knee, (2) the embolus and (3) claimant's heart problems. Defendant-employer submitted the hospital bill to Intracorp which retained a board certified cardiologist (who was never personally identified) to give Intracorp a medical opinion. This "Advisor" made the following determination: . . . I cannot absolutely rule out the possibility that pre-existing endocarditis lead to peripheral embolization, but it is extremely unlikely that embolization from an aortic vegetation would be large enough to occlude the superficial femoral artery. It is likely that the clot was directly related to the knee injury, either resulting from inflammation in the artery from the injury itself, or from the application of the tourniquet required for arthroscopic surgery. If the question of endocarditis had not been raised and treatment had not been initiated it seems likely to me that the patient would have been able to be discharged about one week after his arthroscopic surgery. I believe that this is about the amount of time it would have taken to achieve adequate anticoagulation with an oral agent and to have physical therapy initiated. (Ex. 40, pp. 65 & 66) Therefore, the report of the "Advisor" discounts claimant's heart condition as the source or cause of the occlusion of the superficial femoral artery occlusion and attributes it to the knee injury or the arthroscopy surgery. It should be noted at this point that the Advisor answered the question of whether the embolus was caused by the knee or the endocarditis. However, that is not the issue in this case. The issue is whether the treatment for endocarditis was necessitated by the knee injury and its sequela. Iowa Code section 85.27 provides, "The employer for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefore and shall allow reasonably necessary transportation expenses incurred for such services." Section 85.27, first unnumbered paragraph. It is determined in this case that even though the anterior cruciate ligament tear and the embolus did not cause claimant's preexisting heart condition, it nevertheless, necessitated the first treatment that he had ever received for his heart condition, as a complication of the knee injury and the subsequent embolus. Based on the information provided by the "Advisor," Linda Mosby, R.N., BSN, auditing specialist, for Intracorp concluded: Based on the report of the Advisor, it appears that the femoral artery clot is likely related to the knee injury. Mr. Price received intravenous Heparin therapy until 11/19/88 for this. He was maintained on an oral anticoagulants after that date. Hospitalization after that date appears related to the suspected endocarditis. Since it appears that the endocarditis is not related to the knee injury, payment of those charges is not recommended. An itemization of these charges follows: (Ex. 40, p. 66) After itemizing the charges for which the employer is not liable in her opinion, Ms. Mosby concluded her evaluation as follows: AUDIT RESULTS: Total hospital bill $29,685.45 Less Personal items 0 Undocumented items 0 Charges more than fair & reasonable 0 Charges unrelated to carrier's responsibility 12,926.95 Not medically necessary days/services 0 Mathematical errors 0 Other 0 Plus Undercharges +0 Savings $12,926.95 Total recommended payment $16,758.50 Less previous payment unknown Total due $16,758.50 Several observations are made about Ms. Mosby's evaluation. First, she gives no meaningful, definitive, logical or convincing reason for cutting off claimant's hospital charges on November 19, 1988. No reason is given why the end of intravenous Heparin therapy and the beginning of oral anticoagulants is a justification for her determination. The authorized physicians determined that additional treatment was needed. Dr. Cagin recommended "full anticoagulation" (Ex. 11, p. 9). Ms. Mosby's decision is particularly curious when the hospital records show that claimant continued to receive diagnostic testing for his left knee after November 19, 1988 -- (1) an x-ray on November 20, 1988 and (2) an MRI on November 25, 1988. Thus, this date appears to be an arbitrary decision on her part. Second, Ms. Mosby is not a physician, nor is she one of the treating physicians in this case. There is no evidence that she was acting under the supervision of a physician. If the hospital bill was to be divided why was it not done by the board certified cardiologist medical "Advisor" rather than an auditing nurse? Third, the fact that Ms. Mosby shows "Savings," rather than "nonrelated medical expenses" for the $12,926.95 that she excluded from payment, indicates that she was paid a fee to effect "Savings" rather than to determine "nonrelated medical charges." Thus, her determination was not independent and it was not impartial. Fourth, and the most objectionable reason for not accepting Ms. Mosby's opinion is that she gave a legal opinion on causal connection concerning the liability of the employer in this case and there is no indication that she has any qualifications to give a legal opinion on any area of the law, save the area of workers compensation law. The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). As defendant-employer's brief points out "A cause is proximate if it is a substantial factor in bringing about a result; it need not be the only cause." Blacksmith v. All- American, Inc., 290 N.W.2d 348, (Iowa 1980). Dr. Cagin, an authorized treating physician for the heart condition, supplies this causal connection. On January 9, 1993, Dr. Cagin wrote, "Because of his superficial femoral artery occlusion, this finding prompted an echocardiogram which resulted in his diagnosis of endocarditis, thus prolonging his hospital stay." (Ex. 44, p. 80). Thus, claimant's hospital treatment cannot be cut up into separate pieces and selectively paid and denied. It is determined that the entire treatment was all precipitated by the severe knee injury, which in turn caused a femoral artery occlusion, which in turn medically mandated treatment for endocarditis by the authorized treating physicians. The fact that claimant developed an embolus compelled the physicians treating claimant to determine whether it was caused by the knee injury, the tourniquet at the time of the arthroscopy or from his heart condition. As it turned out the embolus was caused by the knee injury or the tourniquet at the time of the arthroscopy, and therefore the work-related injury, and the sequela of the knee injury and knee surgery, compelled the physicians to evaluate and treat the complication of claimant's preexisting heart condition. Thus, the work injury and its sequela compelled the physicians to diagnose and treat the heart problem which was previously unknown and undiagnosed. This was confirmed by the Intracorp Advisor who wrote, Post operatively the patient was noted to have fever. Evaluation was directed towards his heart because of the possibility of a cardiac source embolism. An echocardiogram revealed evidence of left ventricular hypertrophy, significant aortic valve disease with aortic stenosis, cardiac Doppler evidence of aortic insufficiency, and abnormal echoes on the aortic valve suggesting the possibility of vegetations. The patient had received one dose of intravenous antibiotic prior to arthroscopy. Several blood cultures were subsequently obtained but none were abnormal. Because of the possibility of bacterial endocarditis he was treated with a course of intravenous antibiotics. (Ex. 40, p. 64; Deft. Brief, p. 7) Thus, it is found and determined that the knee injury and its sequela did not cause the heart condition but necessitated the treatment for it at this time and therefore the knee injury was the cause of the treatment for the heart condition. The employer takes the employee in as is condition and therefore takes the employee subject to any active or dormant health impairment. A preexisting condition which is aggravated or accelerated or lighted up by employment activity is deemed a personal injury under the Act. The aggravation may be temporary or permanent. Lawyer and Higgs, Iowa Workers' Compensation-- Law and Practice, (2d ed. section 4-2) at page 23 & 24. Likewise, when a work injury necessitates medical treatment of a preexisting health condition, that was previously dormant, then the employer is liable. Fairly early in Iowa workers' compensation law, the supreme court decided that "where an accident occurs to an employee in the usual course of his employment, the employer is liable for all consequences that naturally and proximately flow from the accident." Lawyer and Higgs, Iowa Workers' Compensation section 4-4, page 26 An incident in the bathtub did not break the chain of causation when claimant was in the bathtub because of a work- related injury. West v. Quaker Oats, Volume 2, Number 1 Iowa Industrial Comm'r Decisions 475 (1984). Dr. Cagin believed that the tourniquet used during the arthroscopy caused the embolus. A defendant-employer is liable when treatment increases or aggravates an injury. Lindekin v. Lowden, 229 Iowa 645, 295 N.W. 112 (1940). Concomitantly, when the injury necessitates treatment for a preexisting health condition that was previously dormant then employer is liable for that treatment. Defendant is not allowed to pick and choose what medical expenses it will or will not pay when all of them were triggered by the original work injury. Butcher v. Valley Sheet Metal, 4 Iowa Industrial Comm'r Reports 49 (Appeal 1983). A defendant-employer is allowed to determine the authorized treating physician or physicians but they are not permitted to pick and choose what care the physicians may or may not administer. The right to choose the care means the right to choose the medical providers but that does not give the employer the right to interfere with the judgment of the medical professionals in determining how an injured worker should be evaluated and treated. Pote v. Mickow Corp., File No. 694 639 (Review-reopening Decn. June 17, 1986). The right to choose the care is the right to choose the provider of the care. Under most circumstances an employer is not entitled to deny or refuse to provide medical care which is recommended by the authorized treating physician. Shiflett v. Clearfield Veterinary Clinic, II Iowa Industrial Comm'r Report 344 (1982). Dr. Cagin was the authorized treating physician for the heart condition. On February 25, 1993, he wrote: . . . it is my opinion, based on the review of Mr. Price's medical history, treatment notes, and operative report, that his superficial femoral occlusion was the cause of additional hospital stay and subsequent medical bills. As a direct result of his acquired superficial femoral occlusion, further evaluation and treatment was indicated and the resultant care (thrombolytics and antibiotics) prolonged his hospitalization according [ly]. (Ex. 45, p. 81) In this case the statement of Dr. Cagin, the authorized treating physician for the heart condition, is preferred over the statement of Ms. Mosby, the auditing nurse for Intracorp. Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985). Dr. Blessman stated that the endocarditis was a separate, preexisting medical condition and he agreed with Intracorp that $12,926.95 should be deducted from the total hospital bill (Ex. 26, pp. 36 & 37). Dr. Blessman is correct in that the endocarditis was a separate, preexisting medical condition. This is a medical decision within his area of expertise. However, when Dr. Blessman presumed to determine the liability for the hospital bill he entered the area of law and more specifically workers' compensation law. This is not his area of expertise. Furthermore, as a physician regularly employed by the city Employee Health Clinic, Dr. Blessman is a representative of the employer and his earlier opinions show a bias in favor of the employer and against the injured employee. For instance, on March 10, 1989, Dr. Blessman said the arterial embolus was primarily due to the endocarditis (Ex. 1, p. 4). On March 17, 1989, Dr. Blessman said that, "In fact, his leg discomfort may have entirely been caused by the embolus and the damage to his anterior cruciate may have been long standing." (Ex. 1, p. 4). On April 21, 1989, Dr. Blessman said that after reviewing the Intracorp report, which stated that the arthroscopy most likely caused the femoral artery occlusion, nevertheless, Dr. Blessman said his opinion remained the same and that the anterior embolus was most likely caused from the endocarditis and not from the trauma to his leg (Ex. 1, p. 5). However, on May 11, 1989, Dr. Blessman recanted and stated that after a review of the literature and medical records in this case, that the timing of events certainly would favor the superficial femoral artery thrombosis occurring as a result of the tourniquet, rather than the endocarditis (Ex. 26, p. 36). Thus, Dr. Blessman's medical opinions must be discounted for the reason that they are not impartial and by his own admission sometimes incorrect. Dr. Martin S. Rosenfeld, D.O., said on August 3, 1993, "I would think after careful review of the chart, that the endocarditis or possible endocarditis is not related to the injury, but that the arterial thrombus and embolectomy are." (Ex. 46, p. 83). This does not mean that the employer is not liable for the treatment. Dr. Rosenfeld's opinion must also be discounted for the reason that he is a one-time examiner and there is no way to know how much of the medical records were available to him when he formed this opinion. Furthermore, even though the endocarditis was not caused by the knee injury or the arthroscopy, nevertheless, the treatment for it was a complication of the knee injury and arthroscopy which necessitated the treatment for the endocarditis. Dr. Blessman stated on April 21, 1989, "At this point, our primary decisions are weather [sic] or not his horrendous medical complications were work related or not." Thus, he acknowledges that the endocarditis was a complication of the knee injury and the arthroscopy. This was also the opinion of Dr. Breedlove at the time he signed the discharge summary and acknowledged that the bicuspid aortic valve, vegetative endocarditis of the aortic valve, and the aortic stenosis with aortic insufficiency was a secondary diagnosis which was defined as a complication or comorbity of the principal diagnosis of peripheral embolization of the left superficial femoral artery (Ex. 17, p. 25). Peter D. Wirtz, M.D., examined claimant and reported on June 26, 1989. In his report he made no direct comment and gave no clear discussion or indication of any kind as to the relationship between the knee injury, the arthroscopy, and the endocarditis. Dr. Wirtz did say, "Following the arthroscopy examination, there was a blood clot in the femoral artery which required removal. He was in the hospital approximately 32 days." (Ex. 27, p. 41). It could be concluded from what Dr. Wirtz did say that the arthroscopy and blood clot was the reason for the 32 days of hospitalization. Claimant testified that a law suit was filed against him by Mercy Hospital Medical Center in the amount of $12,926.95 for the portion of the hospital bill that the employer refused to pay. Claimant also testified that he was required to attend another legal proceeding which was called a debtor/creditor examination where an attorney examined him to see if he had any assets to satisfy the judgment against him in the amount of $12,926.95. Claimant further testified that he is still liable to pay this judgment (Tran. pp. 29 & 30). Claimant's common law wife, who also uses his last name, Cynthia L. Price, testified that claimant had no history of endocarditis and that he had never been treated for it prior to the time of the left knee injury and the arthroscopy for it after which the embolus appeared (Tran. p. 58). Wherefore, it is the determination of this deputy that defendant-employer is liable for the entire Mercy Hospital Medical Center bill for the hospitalization of claimant from November 7, 1988 until December 8, 1988 in the total amount of $29,685.45. entitlement to temporary disability It is determined that claimant is entitled to 27.429 weeks of healing period benefits for the period from the date of the injury on November 4, 1988 until claimant was released to return to work to his former job as an inspector on May 15, 1989 (Iowa Code section 85.34(1)). Claimant testified that he was taken off work on the date of the injury. The medical records support the fact that he was not able to work until he was released to return to work by Dr. Breedlove on May 15, 1989 (Ex. 1, pp. 1-6, Ex. 2, p. 7, Exs. 3- 21, Ex. 22, p. 32, Ex. 23, p. 33, Ex. 24, p. 34 & Ex. 25, p. 35). Wherefore, it is determined that claimant is entitled to 27.429 weeks of healing period benefits for the period from November 4, 1988 to May 15, 1989. ENTITLEMENT TO PERMANENT DISABILITY It is determined that claimant has sustained a permanent scheduled member disability to his left leg and is entitled to 70.4 weeks of permanent partial disability benefits based upon Dr. Breedlove's permanent impairment rating of 32 percent of the left leg (220 weeks x .32 = 70.4 weeks). This rating was given on May 24, 1989. Although Dr. Breedlove did not impose any permanent work restrictions he did find that claimant's knee flexion was limited to 115 degrees and he added, "He still has significant anterior laxity present as well." (Ex. 25, p. 35). Dr. Rosenfeld, claimant's independent medical examiner, determined that claimant sustained a 21 percent impairment to the left leg. He restricted claimant from heavy lifting and carrying and added no stair climbing, no ladder climbing, and no running. Dr. Rosenfeld said claimant was limited to a job where he can wear a brace and that would fit into the medium to sedentary range (Ex. 46, pp. 82 & 83). Although, Dr. Rosenfeld's numerical rating is lower than Dr. Breedlove, his permanent restrictions are much greater. Dr. Wirtz, employer's independent medical evaluator, determined that claimant had sustained a 27 percent permanent impairment of the left leg. He further found that independent weight bearing and activities such as stair climbing and ladder climbing would be limited. He said that claimant will have to use a Lenox Hill brace periodically (Ex. 27, pp. 41 & 42; Tran. pp. 31 & 32). Likewise, even though Dr. Wirtz gave a lower numerical rating than Dr. Breedlove, he found that claimant would suffer some permanent limitations which Dr. Breedlove failed to do. Dr. Wirtz's opinion does not state that it is based upon the AMA Guides whereas the impairment rating of Dr. Breedlove states his rating is based upon the Guides to the Evaluation of Permanent Impairment. Dr. Rosenfeld states that he used the AMA Guides but in this case the opinion of the treating orthopedic surgeon is preferred over the independent evaluator. Dr. Blessman did not give an impairment rating. Dr. Breedlove's permanent impairment rating is preferred for the reason that he was the treating physician and he had the greatest opportunity to evaluate the most correct percentage of permanent impairment. Dr. Wirtz and Dr. Rosenfeld were only one- time examiners. It is further determined that claimant has not sustained an injury to the body as a whole caused by this left leg anterior cruciate ligament rupture and the ensuing arthroscopy. There is no medical evidence or other evidence to support the fact that claimant sustained any permanent disability to his vascular system or to his heart caused by either the knee injury or the subsequent arthroscopy. There is no medical evidence or other evidence that the knee injury or embolus worsened claimant's preexisting heart condition. Claimant has applied for and been granted social security disability income benefits, however, this determination was based upon numerous other serious health problems in addition to the left knee injury (Tran. pp. 38 & 39; Ex. 42, pp. 77 & 78, Ex. 43, p. 79, Ex. 50, pp. 91-101). The social security administration law judge also referred to testimony given by "his wife" (Ex. 50, p. 95). Claimant testified that he has constant pain in his left knee and that Dr. Breedlove has prescribed medication for the pain (Tran. pp. 38 & 40). Wherefore, it is determined that claimant has sustained a 32 percent permanent impairment to his left leg and is entitled to 70.4 weeks of permanent partial disability benefits. rate of compensation It is determined that the proper rate of compensation is $221.21 per week. This is based on claimant's calculation of a gross weekly wage of $347.34 for a married person and two exemptions (Ex. 49, p. 90). Defendant-employer's counsel stated that they disputed claimant's marital status (Tran. p. 71). Betty J. Rogers, workers' compensation specialist for the City of Des Moines, wrote to claimant on November 29, 1988, "In checking with our Legal Department staff, it has been determined that a 'common- law' marriage would need to be proven in a court of law before we are able to accept the spouse as a dependent on your claim." (Ex. A, p. 17). The rate of compensation is based upon gross weekly earnings after the deduction payroll taxes. Rule 343 IAC 8.8. Thus, martial status effects the rate of compensation. A person may be a spouse through a common law marriage. The elements of common law marriage were reviewed by the Iowa Supreme Court in In re Marriage of Winegard, 278 N.W.2d 505 (Iowa 1979). The court found the elements of a common law marriage were as follows (1) intent and agreement in praesenti to be married by both parties; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. Claimant has established by a preponderance of the evidence that a common law marriage existed at the time of the injury on November 4, 1988. Balwin v. Sullivan, 201 Iowa, 955, 204 N.W. 420 (Iowa 1925). Claimant testified that he and Cynthia L. Price were a common law man and wife for many years and that they held themselves out as man and wife and that they file joint tax returns (Tran. pp. 16 & 17). Cynthia L. Price testified that she uses the name Cynthia L. Price, the same last name as claimant, and that she is the spouse of Thomas J. Price. She testified that they have cohabited for 17 years together. She stated they have held themselves out to others as husband and wife for 13 or 14 years. She testified that they have filed joint tax returns for 13 or 14 years (Tran. pp. 53 & 54). Dr. Breedlove said he explained the risk of surgery to the patient and "his wife" (Ex. 3, p. 9). Dr. Kevin Smith, M.D., of the City Health Clinic stated that he discussed reconstruction of the anterior cruciate ligament with the patient and "his wife" (Ex. 21, p. 31). Hooshang Soltanzadeh, M.D., said that the patient and "his wife" understand the procedure and agreed to the plan which he had recommended (Ex. 30, p. 47). The office notes of J. Opoien, M.D., and K. Quinn, M.D., show that the name of claimant's spouse is "Cindy Price" (Ex. 41, pp. 75 & 76). Claimant has established a prima facie case of a common law marriage. Claimant's evidence was not controverted, contradicted, rebutted or refuted with any evidence on the part of defendant-employer. Therefore, it is determined that claimant is entitled to a rate based upon a married person with two exemptions. Therefore, defendant-employer's calculation of the rate based upon a single person with one exemption is not correct. Defendant bases the gross weekly earnings on the 13 weeks prior to the injury (Ex. A, p. 46). However, claimant normally worked several hours of overtime at the time of this injury (Tran. pp. 14 & 15). The employer's records show that normally claimant worked an excess of 40 hours per week and quite frequently worked an excess of 50 hours per week (Ex. A, p. 46, Ex. 49, p. 90). In the 13 weeks used by defendant-employer, the week of October 1, 1988, shows that claimant only worked 31 hours. This is the only week that claimant worked less than 40 hours. Defendant's calculation of 13 weeks includes this 31 hour week (Ex. A, p. 46). Claimant's calculation of the gross weekly wage eliminates the week of October 1, 1988 and uses the other 12 weeks to determine the gross weekly wage (Ex. 49, p. 90). Overtime hours are to be included in the rate calculation at the straight time rate. Rule 343 IAC 8.2. Both parties did include the overtime at the straight time rate of $6.75 per hour. It has been the policy of the agency for several years to eliminate non-representative weeks. Instead the short weeks are skipped and only representative weeks are used. Lewis v. Aalf's Mfg. Co., I Iowa Industrial Comm'r Report 206, 207 (Appeal Decn. 1980). The rational for this method of determining the weekly earnings is based upon the mandate of the first unnumbered paragraph of Iowa Code section 85.36 which required the determination of earnings to which the employee "would have been entitled had he worked the customary hours for the full pay period in which he was injured. Schotanus v. Command Hydraulics, Inc., I Iowa Industrial Comm'r Rep. 294, 298-99 (1981); Thilges v. Snap-on Tools, Iowa Supreme Court Decn. March 29, 1995. The 31 hour week of October 1, 1988 is not representative and should be dropped. In such cases it is proper to divide the total amount earned by the number of weeks worked. Barker v. City Wide Cartage, I Iowa Industrial Commissioner Report 49 (Appeal Decision 1980) Wherefore, it is determined that claimant's calculation is the most correct calculation of claimant's gross weekly earnings based on the evidence available to the deputy with no evidence from employer to rebut the presumption that these were not representative wages on the date of injury. Oscar Mayer Foods Corp. v Tasler, 483 N.W.2d 824, 830 (Iowa 1992) (Ex. 49, p. 90). During the period of available known customary wages claimant earned $4,168.12 over a 12 week period which results in a gross weekly wage of $347.34. Using the appropriate Guide to Iowa Workers' Compensation Claim Handling for the period commencing on July 1, 1988, the rate for a married person with two exemptions with gross weekly earnings of $347 per week is $221.21. CONCLUSIONS OF LAW Wherefore, based upon the foregoing and following principles of law, these conclusions of law are made. That the traumatic injury to claimant's left knee of anterior cruciate ligament rupture and the subsequent superficial femoral artery embolus occlusion were the cause of complications to claimant's preexisting endocarditis and they were the cause of the entire hospitalization for the period from November 7, 1988 to December 8, 1988 and that defendant-employer is liable for the entire hospital bill in the amount of $29,685.45. Iowa Code section 85.27; Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945). That claimant is entitled to 27.429 weeks of healing period benefits for the period from November 4, 1988, the date of the injury, until he was released to return to his former job as an inspector on May 15, 1989. Iowa Code section 85.34(1). That claimant is entitled to 70.4 weeks of permanent partial disability benefits based upon a 32 percent permanent impairment to his left leg. Iowa Code section 85.34(2)(o). That the proper rate of compensation is $221.21 per week. Iowa Code section 86.36 first unnumbered paragraph and 86.36(6); rule 343 IAC 8.2 and 8.8; Lewis v. Aalf's Mfg. Co., I Iowa Industrial Comm'r Report 206, 207 (Appeal Decn. 1980); Schotanus v. Command Hydraulics, Inc., I Iowa Industrial Comm'r Rep. 294, 298-99 (1981); Thilges v. Snap-on Tools, Iowa Supreme Court Decn. March 29, 1995; Barker v. City Wide Cartage, I Iowa Industrial Commissioner Report 49 (Appeal Decision 1980). ORDER THEREFORE, IT IS ORDERED: That defendant-employer pay to claimant twenty-seven point four-two-nine (27.429) weeks of healing period temporary disability benefits at the rate of two hundred twenty-one and 21/100 dollars ($221.21) per week in the total amount of six thousand sixty-seven and 57/100 dollars ($6,067.57) commencing on November 4, 1988. That defendant-employer is entitled to a credit in the amount of five thousand five hundred seventy-one and 92/100 dollars ($5,571.92) paid to claimant prior to hearing (Deft. Ex. A, p. 52). That defendant-employer pay to claimant seventy point four (70.4) weeks of permanent partial disability benefits at the rate of two hundred twenty-one and 21/100 ($221.21) dollars per week in the total amount of fifteen thousand five hundred seventy- three and 18/100 dollars ($15,573.18) commencing on May 15, 1989. That defendant-employer is entitled to a credit in the amount of twelve thousand one hundred ninety-three and 63/100 dollars ($12,193.63) for benefits paid to claimant prior to hearing (Deft. Ex. A, pp. 49-51). That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant pay to claimant or the provider of medical services twelve thousand nine hundred twenty-six and 95/100 dollars ($12,926.95) for the unpaid medical charges of Mercy Hospital Medical Center and obtain a release of the judgment lien of Mercy Hospital against claimant and pay all costs associated with the release of this lien and hold claimant harmless from any future liability thereon. That the costs of this action are charged to defendant pursuant to rule 343 IAC 4.33 and Iowa Code sections 86.19(1) and 86.40. That defendant-employer file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of May, 1995. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Robert W. Pratt Attorney at Law 6959 University Ave. Des Moines, IA 50311 Ms. Mary G. Hellweg Asst. City Attorney City Hall 400 East First Street Des Moines, IA 50309 1108.50, 1401, 1402.30, 1402.60, 1403.10, 1403.20, 2206, 2501, 2505, 2602, 2700, 2902, 1802, 1803.1, 1803, 3002, 3003 Filed May 10, 1995 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ THOMAS J. PRICE, Claimant, File No. 900497 vs. A R B I T R A T I O N THE CITY OF DES MOINES, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 1108.50, 1401, 1402.30, 1402.60, 1403.10, 1403.20, 2206, 2501, 2505, 2602, 2700, 2902 Claimant tripped and injured his left knee at work. During arthroscopic surgery a superficial femoral artery occlusion was discovered in his left leg. This necessitated not only treatment for the embolus but also for a preexisting condition of endocarditis, which had previously been dormant and unknown. Defendant submitted the hospital bill to Intracorp who retained a board certified cardiologist (who was not identified) to give certain opinions. Based on one of his opinions an auditing nurse of Intracorp determined that $12,926.95 of the $29,685.45 hospital bill was due to endocarditis and recommended that it was not the responsibility of the employer. The defendant refused to pay it. The hospital sued claimant and obtained a judgment against claimant in the amount of the unpaid portion of their bill, $12,926.95. All of the denied medical treatment was ordered by the authorized treating physicians. One of them, a cardiologist, specifically determined on two separate occasions that these charges were caused by the knee injury and the embolus. During the period of extended treatment for the endocarditis claimant also received treatment for his knee, not just the endocarditis. The discharge summary stated that the endocarditis treatment was a complication of the knee injury and the embolus. It was further found that it is a well known fact that a hospitalized patient, particularly one in critical condition, is in no position to controvert what the doctor orders for treatment, nor does the patient normally have the knowledge or expertise to interfere with the care of the doctor. Claimant in this case did not order or request the disputed care, but rather it was all ordered by authorized treating physicians. It was determined that the Intracorp cardiologist Advisor did not answer the question of whether the knee injury and embolus caused the care for the endocarditis. It was the auditing nurse who decided that the endocarditis care was not caused by the knee injury or the embolus and that employer was not liable for it. The deputy found the determination of the auditing nurse (1) was arbitrary, (2) that she was not a physician, did not act under the supervision of a physician, and the deputy questioned why the cardiologist Advisor did not make the determination of the charges that were not allowed, (3) that her opinion was not impartial nor independent because she was hired by employer, and the result of her work was characterized by her as "savings" and (4) the nurse made a legal determination and no qualifications for her to make a legal opinion of liability were established. The opinion of the treating heart physician was preferred over the opinion of the auditing nurse. It was determined that the denied medical expenses were reasonable medical expenses within the purview of first sentence in section 85.27. The deputy drew on legal references that the employer takes the employee in as is condition and that employers are responsible for all of the consequences that flow from the work injury. Several case cites are given. It was also determined that employers can choose the physician but are not entitled to deny or refuse the care recommended by the physicians. Several case cites are given. Even though there was no evidence that the work injury, or its sequela, aggravated or worsened his heart condition, it was determined that the work injury and its sequela did cause a medical complication to claimant's preexisting but dormant and unknown heart condition, which necessitated medical treatment, in the opinion of the authorized treating physicians. Therefore, employer was liable for all of the medical treatment the doctors directed and ordered, including the treatment for the endocarditis. In brief, employer was liable for medical treatment of a medical complication caused by the work injury. It was further ordered that defendant obtain a release of the judgment lien against claimant and all expenses connected with it and hold claimant harmless for any future liability from it. 1803.1 This was determined to be a scheduled member injury to the left leg. There was no evidence that the endocarditis was worsened by the knee injury. Nor was there any evidence of any permanent vascular injury or impairment. 1802 Claimant was awarded healing period benefits from the date of the injury until the treating physician released him to return to his former job. 1803 Impairment ratings ran 21 percent, 27 percent and 32 percent. Claimant was awarded 32 percent permanent impairment of his left leg based on the impairment rating of the authorized treating orthopedic surgeon. Claimant also had some permanent restrictions. 3001 Claimant's gross earnings were based on overtime at the straight time rate. All but one week was over 40 hours and most weeks were over 50 hours. A 31 hour week was dropped from the calculation. The remaining 12 weeks were averaged to determine the rate based on claimant's customary earnings. Section 85.36 first unnumbered paragraph and subparagraph 6. Lewis v. Aalf's Mfg. Co., I Iowa Industrial Comm'r Report 206, 207 (Appeal Decn. 1980); Schotanus v. Command Hydraulics, Inc., I Iowa Industrial Comm'r Rep. 294, 298-99 (1981); Oscar Mayer Foods Corp. v Tasler, 483 N.W.2d 824, 830 (Iowa 1992); Barker v. City Wide Cartage, I Iowa Industrial Commissioner Report, 12, 15 (Appeal Decn. 1980); Thilges v. Snap-on Tools, Iowa Supreme Court Decn. March 29, 1955; Rules 343 IAC 8.2 and 8.8. 3002 Claimant proved that he was entitled to the married rate because he proved that he had lived in a common law marriage for 17 years. In re Winegard. Claimant's evidence was unrebutted.