BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : LAWRENCE LeROY MURREN, : : Claimant, : : vs. : : File No. 903477 WASTE MANAGEMENT, INC. a/k/a : SOLID WASTE SERVICES/CONTAINER : A R B I T R A T I O N HAULAWAY, : : D E C I S I O N Employer, : : and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : _________________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Lawrence Murren, against his employer, Waste Manage ment, Inc., and its insurance carrier, CNA Insurance Companies, and against the Second Injury Fund of Iowa, defendants. The case was heard on July 13, 1992 in Sioux City, Iowa at the Woodbury County courthouse. The record consists of the testimony of claimant. The record also consists of the testimony of Roxanne Murren. Finally, the record is comprised of claimant's exhibits 1-35 and joint exhibit 1. ISSUES The issues to be determined are: 1) whether claimant is entitled to any healing period or permanent partial disability benefits; 2) whether claimant is entitled to any medical benefits pursuant to section 85.27; 3) whether claimant is entitled to any vocational rehabilitation benefits pursuant to section 85.70; 4) whether claimant is entitled to any benefits pursuant to the Second Injury Fund of Iowa; and 5) whether claimant is entitled to any benefits pursuant to section 86.13. At the hearing, but prior to the testimony of the claimant, defendants' attorney stipulated that his clients would tender $520.00 in vocational rehabilitation benefits pursuant to section 85.70. Defendants' attorney also agreed to reimburse claimant for medical mileage as follows: 488.4 miles at $.21 per mile and for $9.71 in food for a total of $112.27. Said reimbursement was made pursuant to section 85.27. Likewise, defendants agreed to Page 2 pay outstanding medical bills for Timothy C. Fitzgibbons, M.D., pursuant to section 85.27. FINDINGS OF FACT The deputy, having heard the testimony and considered all the evidence, finds: Claimant is 39-years-old. He was born on February 13, 1953. At the time of the hearing, claimant was 5 feet 11 inches and he weighed 280 pounds. Claimant was clearly overweight. He completed his junior year in high school but he did not graduate from high school. Claimant was drafted at age 18. He served in the United States Navy where he obtained his GED. Claimant was honorably discharged from the Navy in May of 1975. At discharge, he was classified as a E-4 Third Class. However, while he was still in active duty, claimant sus tained an injury to his left ankle when an officer dropped a 555 pound drum on his left ankle. Claimant received medical treat ment for his left ankle. He was treated by the Veterans Adminis tration. The agency determined he had a 10 percent disability which resulted in compensation at the sum of $82.00 per month from the date of the injury on May 3, 1975. Claimant described his current problems with the left ankle. He testified that his ankle throbs and that it "gives out" at various times. He testified that his foot buckles when he walks on uneven ground and that he has taken pain medication for the left ankle. Claimant also testified that the left ankle injury did not affect claimant's choice of employment prior to December 16, 1988 because claimant had learned to compensate with the right ankle and foot. Claimant testified that as of the day of the hearing, he cannot control the side to side motion of the left foot. Since 1975 he has sought intermittent treatment through the VA. On December 6, 1988 claimant was employed by defendant-employer as a solid waste worker/"hopper." Claimant was required to pick up solid waste from a customer and to dump the waste into a "garbage truck." The job necessitated numerous "hops" onto and off the garbage truck. Claimant testified that on the date in question, he jumped from a garbage truck, then slipped off the side of a curb and injured his right ankle. Claimant sought treatment from his family physician, Joe Bingham, M.D. Dr. Bingham diagnosed claimant's condition as "Severe Ankle Ssprain." (Joint Exhibit 1, page B-1) The physi cian later modified his diagnosis to: "He's got a severe sprain of the lateral malleolus area too....Avulsed fracture off the very distal tip of tibia (that was medial malleolus. Then a severe sprain of the lateral ankle." (Jt. Ex. 1, p. B-5) Claimant was precluded from walking or lifting. (Jt. Ex. 1, p. B-10) Later claimant was referred by Dr. Bingham to Kevin J. Page 3 Liudahl, M.D., an orthopedist. Dr. Liudahl diagnosed claimant's condition as: "Residual synovitis, postankle sprain." Dr. Liudahl placed claimant in a gelcast ankle brace. The orthope dist later modified his diagnosis to: Residual mechanical symptoms, right ankle with antero lateral osteochondritis dissecans fragment. I suspect that this is loose and is actually causing the mechani cal symptoms. (Jt. Ex. 1, p. F-1) Dr. Liudahl performed arthroscopic surgery on the right ankle and placed claimant in a short walking cast. Later claimant was provided with an ankle brace. The orthopedist rated claimant as having a 15 percent functional impairment. At a later point in time, claimant was referred to a foot specialist, Timothy Fitzgibbons. The foot specialist diagnosed claimant's condition as: "[I]nversion injury of the right ankle, in December of 1988, with osteochondral talar dome fracture of the lateral talar dome of the right ankle." (Jt. Ex. 1, p. C-2) Dr. Fitzgibbons performed an "[a]rthroscopy joint debridement with debridement of old osteochondral fracture, debridement of distal tibial fibular joint and tibial fibular gutter, removal of meniscoid type of lesion, posteriorlaterally, synovial resection, extensive irritation." (Jt. Ex. 1, p. C-17) Dr. Fitzgibbons treated claimant. The last surgical proce dure was in June of 1990. He also rated claimant as having a 15 percent permanent partial impairment to the right lower extrem ity. In his deposition, Dr. Fitzgibbons testified that "if the patient wants to still do something and put up with the pain, I wouldn't hold him back." (Claimant's Ex. 24, p. 37, lines 8-10) Claimant testified that as of the hearing date, the right ankle bothers him more than the left ankle, but that his right ankle is better if he sits and elevates his foot. He also testi fied that his foot turns in and that he falls 1-2 times per week. His spouse testified that he falls once or twice a month. Claimant indicated during direct examination that he can stand in one spot for 30 minutes, walk 6 to 8 blocks, but he cannot walk on uneven ground with his left foot, climb stairs with his right foot, bend from the waist, or stand on his toes and reach. As part of the preparation for hearing claimant had an inde pendent medical exam from Michael T. O'Neil, M.D. Dr. O'Neil opined that: AP, lateral and oblique x-rays of the right ankle taken in our office at the time of this examination demon stated [sic] minimal degenerative changes along the articular surface of the medial malleolus with early hypertrophic spurring. Early spurring was also noted anteriorly along the lip of the articular edge of the distal tibia in the ankle joint. No loose bodies were noted. In general, the ankle mortise is well preserved with no irregularity. Page 4 I believe with reasonable medical certainty that Mr. Murren has sustained an osteochondral injury of the dome of the talus of his right ankle as a result of a work-related injury of 12/16/88, while under the employment of Waste Management, Inc. Since that time, he has continued to experience pain, swelling and stiffness in his ankle despite two operative proce dures. I do not feel that any further medical treat ment would be of benefit at this time. Mr. Murren's weight is an aggravating factor, but did not in any way cause the injury. A weight reduction program would be helpful. I believe that Mr. Murren will continue to experience difficulty standing and walking for an extended period of time because of his ankle condition which will probably worsen with time because of activ ity and because of his weight. (Joint Exhibit 1, p. D-3) Claimant had another examination from a foot specialist in anticipation of the hearing. Randall P. Bergen, DPM, PC, opined that: However, just from his symptoms, physical examination and history it appears that this gentleman has had severe ankle trauma that has lead to some progressive post-traumatic arthritic involvement of both ankles. Prognosis is one that is rather guarded. I would anticipate that this gentleman will probably have to have further intervals of possible surgical interven tion injection therapy and/or nonsteroidal anti-inflam matory therapy. Possibly even some type of ankle brac ing. He may eventually even go on to have an ankle fusion if there is more deterioration within the ankle that cannot be managed conservatively. At this stage of the game this gentleman is limited from an employ ment arena to a job that would require him to do a min imal amount of standing and walking. Probably much more of a sitting type of occupation. As far as a dis ability rating on this gentleman I would say probably at this time he is about 60% disabled. However, this may increase in time if his ankle progressively deteri orates, which probably more likely than not will reoc cur due to the fact that the post-traumatic usually is progressive in nature. It would also behove this patient to lose some weight and we have discussed this at length. Due to the fact that he has so much discom fort in walking and doing any type of exercise in the regard I recommended he possibly try bicycling per stationary bike or regular bike and/or swimming thus avoiding any undue stress and strain on his ankle com plex. With weight loss I am sure that will produce less stress and strain on the ankle conditions. If you have any further questions in regards to this patients [sic] condition feel free to contact me. (Claimant's Ex. 23) Claimant was paid benefits from: Page 5 12-17-88 through 02-06-89 7.429 weeks 03-26-89 through 08-03-89 14.0 weeks 08-12-89 through 05-04-90 38.0 weeks 06-04-90 through 09-26-91 72.571 weeks 132 weeks Subsequent to his work injury, claimant worked intermit tently for various employers. His employment was part-time, tem porary or on an occasional basis from September of 1989 through the date of the hearing. Claimant intended additional training at the Iowa Western Community College for computer drafting. CONCLUSIONS OF LAW The first issue to address is the nature and extent of any permanent partial disability benefits. The parties have stipu lated that claimant has sustained a permanent partial disability to the right leg. The right of an employee to receive compensa tion for injuries sustained is statutory. The statute conferring this right can also fix the amount of compensation payable for different specific injuries. The employee is not entitled to compensation except as the statute provides. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Compensation for permanent partial disability begins at termination of the healing period. Iowa Code section 85.34(2). Permanent partial disabilities are classified as either scheduled or unscheduled. A specific scheduled disability is evaluated by the functional method; the industrial method is used to evaluate an unscheduled disability. Simbro v. Delong's Sportswear, 332 N.W.2d 886 (Iowa 1983); Graves v. Eagle Iron Works, 331 N.W.2d 116 (Iowa 1983); Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95 (1960). Both Dr. Liudahl and a foot specialist, Dr. Fitzgibbons, rate claimant as having a 15 percent functional impairment. Another foot specialist, a podiatrist, Dr. Bergen, rates claimant as having a 60 percent functional impairment. The practitioners are recognized in their field of expertise. Their opinions are given nearly equal weight although claimant has seen Dr. Fitzgibbons on numerous occasions but he has seen Dr. Bergen only once. Three surgical procedures have been conducted. Dr. Fitzgibbons has not placed restrictions on claimant. He is able to engage in activities as he can tolerate them. The most recent CT scan of the right ankle shows that: ON THE RIGHT SIDE THE SUBTALAR JOINT APPEARS NORMAL. MILD DEGENERATIVE CHANGE IS SEEN AT THE FIBULAR/TALAR ARTICULATION. THERE IS MILD IRREGULARITY OF THE LATERAL ASPECT OF THE TALAR DOME POSTERIORLY WITH SOME MILD SUBARTICULAR CYST FORMATION. TYPICAL FINDINGS OF OSTEOCHONDRITIS DISSECANS ARE NO LONGER EVIDENT IN THIS AREA. NO INTRA-ARTICULAR LOOSE BODY IS EVIDENT. IMPRESSION: 1. LEFT ANKLE AND HINDFOOT APPEAR NORMAL. 2. ON THE RIGHT SIDE THERE IS MILD DEGENERATIVE CHANGE SEEN AT THE FIBULAR/TALAR ARTICULATION. 3. ON THE RIGHT SIDE THERE IS Page 6 IRREGULARITY OF THE LATERAL POSTERIOR ASPECT OF THE TALAR DOME WITH SOME MILD SUBARTICULAR CYST FORMATION AND SCLEROSIS. TYPICAL FINDINGS OF OSTEOCHONDRITIS DISSECANS ARE NO LONGER APPRECIATED. 4. NO ABNORMALITY NOTED IN SUBTALAR JOINT RIGHT HINDFOOT. (Cl. Ex. 34, deposition Ex. 1, p. 7) Most of claimant's complaints are in the range of subjective pain complaints. No other surgery is scheduled. It is the determination of the undersigned that claimant is entitled to a 30 percent permanent partial disability to the right leg. Claimant is entitled to 66 weeks of benefits at the stipulated rate of $175.83 per week. The next issue to address is the issue of healing period benefits. Iowa Code section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered perma nent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to sub stantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement from the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Claimant is requesting healing period benefits from December 17, 1988 to July 13, 1992, the date of the hearing. He is alleg ing he is owed for 186.429 weeks of healing period benefits. Claimant has not met his burden of proof that he is owed for 186.429 weeks of healing period benefits. The evidence is sketchy relative to healing period benefits. Claimant is entitled to benefits for the following periods: 12-17-88 through 02-06-89 (date claimant voluntarily quit) 05-26-89 through 07-03-89 (Jt. Ex. 1, p. H-1) 08-12-89 through 09-01-89 (Jt. Ex. 1, p. F-5) 04-19-90 through 12-21-90 (Jt. Ex. 1, p. C-8) (date Dr. Fitzgibbons wrote, "...he has gone as far as he should.") On December 21, 1990, claimant reached maximum medical improvement. As a result, his permanent partial disability benefits commenced on December 22, 1990. The next issue to address is whether claimant is entitled to medical benefits pursuant to section 85.27. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabili tation, nursing, ambulance and hospital services and supplies for Page 7 all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary trans portation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Iowa Code section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Claimant has the burden of proving that the fees charged for such services are reasonable. Anderson v. High Rise Constr. Specialists, Inc., File No. 850096 (App. 1990). Claimant is requesting benefits in the form of a weight loss program. Claimant weighs in excess of 280 pounds. He has been overweight for most of his adult years despite his claim that it has been only since his work injury that his weight has soared. Dr. Fitzgibbons has recommended a weight loss program for claimant. Dr. Fitzgibbons testified as follows: A. As a general rule -- I'm looking at my treatment protocol for something like this -- weight loss isn't necessarily one that's mandatory. I have individual ized that. On February the 7th, 1991, I notice from my notes here that we did, I believe, send a letter to encouraging, I believe even recommending, that he go through this. It's something he proposed to us. I never ever discourage weight loss, and would encourage it. In this case certainly with a weight-bearing Page 8 joint, and the problems that he's had, and the surgery and everything, I think it would be helpful. Q. Is there a particular weight loss program you endorse or recommend? A. Absolutely not. Q. Okay. Is there -- let me ask you this. Can you predict, with a reasonable degree of certainty, that his participation in a weight loss program would result in weight loss? A. No. Q. And can you predict, with any certainty, that his participation in a weight loss program would dimin ish his impairment? A. I do not feel that you can, with any reasonable degree of medical certainty, predict that he's going to lose weight just because he goes through it. And if he loses weight, I do not think it's going to signifi cantly affect his impairment rating. I think it may affect his ability to cope with his problem and to handle his problem. That's the way I would put it. Q. Does that answer assume that he loses weight and keeps the weight off for a significant period of time? A. And keeps physically fit, which is usually part of the program. (Cl. Ex. 24, p. 13, l. 21 through p. 15, l. 3) A weight reduction program has been considered a reasonable medical treatment where all doctors have opined that excess weight contributed to claimant's back problem. Shilling v. Eby Construction Co., II Iowa Indus. Comm'r Rep. 462-463 (Appeal Dec. 1982). In Shilling, supra, the Industrial Commissioner wrote: Each physician who examined claimant noted that claimant's obesity definitely aggravated his back prob lems. Dr. Boulden suggested that weight loss, in com bination with an exercise program, could protentially [sic] restore claimant's back mobility. Dr. Neiman testified that, prior to any back surgery, claimant must lose a considerable amount of weight. Further more, even if back surgery could be performed at claimant's present weight, Dr. Neiman stated that such surgery would not benefit claimant unless claimant's excess poundage was lost. According to Dr. Neiman and Dr. Boulden, excess weight places a strain on the back, thereby aggravating any existing back problems. Clearly, any treatment of claimant's back problems requires prior treatment of his obesity, regardless of whether the diagnosis of claimant's problem is back Page 9 strain or a herniated disc. It is possible that weight loss alone in conjunction with physical therapy will alleviate claimant's back problems. But, in the event that weight loss together with physical therapy do not relieve claimant's back symptoms, and surgical inter vention is necessary, claimant must still shed his excess weight. Both claimant and his wife testified that he had attempted to reduce his weight and was unable to do so. The necessity for claimant to lose a considerable amount of weight in order to relieve his back problems which are causally related to the injury of May 23, 1978 is clear from the record. This agency strongly urges claimant, in a cooperative effort with his physi cians, to exhaust all conventional means of weight loss before any drastic measures are undertaken to effect this weight reduction. Only as a last resort should surgical intervention be utilized as a means of allevi ating claimant's obesity. However, should surgery become necessary in order to force claimant to reduce so that his injury-related back problems can be resolved, such a remedy will be considered reasonable and necessary medical treatment in the course of reme dying claimant's back problems. See, e.g., Henry v. Lit Brothers, 193 Pa. Super. 543, 165 A2d 406 (1060); Decks, Inc. of Florida v. Wright, 389 So.2d 1074, 1076 (Fla. App 1981). This agency, however, does not want to go on record as ordering a specific surgical weight loss procedure. In light of continual advancements in modern medical science, some previously acceptable surgical procedures become less attractive as alternatives than they once were. As a result, if it becomes absolutely necessary to surgically intervene in order to facilitate claimant's weight loss, the procedure utilized must be chosen by claimant's physician in light of the then current medical knowledge. In the case at hand, Dr. Fitzgibbons testified a weight loss program would be helpful. He, however, declined to state that claimant would lose weight if he attempted a weight loss program. Nevertheless, a weight loss program was recommended. (Cl. Ex. 34, p. 39, ll. 9-16) Dr. Fitzgibbons opined that such a program would not affect claimant's impairment rating. (Cl. Ex. 34, p. 14) It is the determination of the undersigned that a weight loss program is a reasonable request but it is not necessary treatment. Claimant is encouraged to participate in a weight loss and/or exercise program. However, defendants are not man dated to provide such a program. Since claimant has previously consulted a dietician through the Veterans' Administration, he is not without available resources. Claimant should avail himself of all resources offered to him at the VA Hospital. He is urged to commence such a program and to follow through with the dieti cian's instructions. While weight loss is a monumental task, claimant is encouraged to participate in a program. The next issue to address is whether claimant is entitled to penalty benefits pursuant to section 86.13. Section 86.13 per Page 10 mits an award of up to 50 percent of the amount of benefits delayed or denied if a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse. The standard for evaluating the reasonableness of defendants' delay in commencement or termination is whether the claim is fairly debatable. Where a claim is shown to be fairly debatable, defendants do not act unreasonably in denying payment. See Stanley v. Wilson Foods Corp., File No. 753405 (App. August 23, 1990); Seydel v. Univ. of Iowa Physical Plant, File No. 818849 (App. November 1, 1989). Section 86.13 provides in relevant part that: If an employer or insurance carrier fails to file the notice required by this section, the failure stops the running of the time periods in section 85.26 as of the date of the first payment. If commenced, the payments shall be terminated only when the employee has returned to work, or upon thirty days' notice stating the reason for the termination and advising the employee of the right to file a claim with the industrial commissioner. In the case before this deputy, defendants have issued only one notice as provided in Auxier, supra. The date of that notice is September 26, 1991. In the notice, the defendants write: By means of this letter, please consider this a 30 day notice under Section 86.13 of termination of benefits. We will be proceeding to pay benefits through 30 days from the date of this letter. However, there are several other occasions where defendants have terminated claimant's benefits without notice. These peri ods are February 6, 1989, August 3, 1989 and May 4, 1990. With respect to the February 6, 1989 date, claimant informed his employer that he had other employment. In that case, a 30 day notice was unnecessary. With respect to August 3, 1989, evidence was presented that claimant was working at Western. Therefore, no notice is required. There was no evidence presented for the failure to provide notice on May 4, 1990. The termination of benefits was unreasonable. Defendants are liable for 4 weeks of benefits at 50 percent of the weekly benefit rate of $175.83, for a total of 4 x 87.92 = $351.68 in penalty benefits. The final issue before this deputy is whether claimant is entitled to benefits from the Second Injury Fund of Iowa. Section 85.64 governs Second Injury Fund liability. Before liability of the Fund is triggered, three requirements must be met. First, the employee must have lost or lost the use of a hand, arm, foot, leg or eye. Second, the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury. The Second Injury Fund Act exists to encourage the hiring of handicapped persons by making a current employer responsible only for the amount of disability related to an injury occurring while Page 11 that employer employed the handicapped individual as if the individual had had no preexisting disability. See Anderson v. Second Injury Fund, 262 N.W.2d 789 (Iowa 1978); Lawyer and Higgs, Iowa Workers' Compensation - Law and Practice, section 17- 1. The Fund is responsible for the difference between total disability and disability for which the employer at the time of the second injury is responsible. Section 85.64. Second Injury Fund v. Neelans, 436 N.W.2d 335 (Iowa 1989); Second Injury Fund v. Mich. Coal Co., 274 N.W.2d 300 (Iowa 1970). Interest accrues on benefits the Fund pays commencing on the date of the decision. Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467 (Iowa 1990). A deputy is entitled to determine the nature of claimant's injury and entitlement to compensation from the evidence pre sented, regardless of particular theories pled. Shank v. Mercy Hospital Medical Center, File No. 719627 (Appeal Decision Filed August 28, 1989). In the present case, the Second Injury Fund denies any lia bility on the basis that the first injury, the injury to the left ankle, is not permanent. This deputy is not persuaded by the argument of the Fund. The first injury has been rated by the Veteran's Administration as a 10 percent disability and claimant has been paid monthly benefits from the Veteran's Administration. Claimant has sought treatment for the left ankle since 1975. Claimant's testimony establishes that claimant cannot control the side to side motion of the left ankle. His testimony indicates his left ankle "gives out" on occasion. Claimant's first injury is permanent. He has a 10 percent permanent partial disability. Likewise, the second injury is permanent. The reasons for the permanency have been cited previously. Claimant has a 30 percent permanent partial disability. As aforementioned, the deputy is entitled to determine the nature of claimant's injury and his entitlement to compensation. Here, claimant has always been underemployed, despite having com pleted two programs at the community college. He has held many jobs throughout his career. Many of the positions have paid min imum wages up to $5.25 per hour. Claimant's employment has always been unskilled. He is currently attending classes at the local community college. He is not engaged in steady employment. It is the determination of the undersigned that claimant has a 30 percent permanent partial disability. The following formula is used to determine the Second Injury Fund's liability: 150 weeks - Industrial disability from all impairments -220 x .10 = 22 weeks preexisting disabilities -220 x .30 = 66 weeks amount of disability for which defendant employer is responsible 62 weeks for which the Fund is responsible The formula as aforementioned is computed as: Page 12 150 weeks - 22 weeks - 66 weeks 62 weeks of Fund benefits The Fund is liable for 62 weeks at the stipulated rate of one hundred seventy-five and 83/100 ($175.83) per week and com mencing on the date following the final payment of permanent par tial disability benefits by defendant-employer. ORDER THEREFORE, IT IS ORDERED: Defendants, employer and insurance carrier, are to pay unto claimant fifty-one point two-eight-six (51.286) weeks of healing period benefits at the stipulated rate of one hundred seventy-five and 83/l00 dollars ($175.83) per week for the periods from: 12-17-88 through 02-06-89 05-26-89 through 07-03-89 08-12-89 through 09-01-89 04-19-90 through 12-21-90 Page 13 Defendants, employer and insurance carrier, are to pay unto claimant sixty-six (66) weeks of permanent partial disability benefits commencing on December 22, 1990 at the stipulated rate of one hundred seventy-five and 83/l00 dollars ($175.83) per week. Defendants, employer and insurance carrier, are to pay unto claimant four (4) weeks of 86.13 penalty benefits at the fifty percent (50%) rate of eighty-seven and 92/l00 dollars ($87.92) per week. Defendants shall take credit for all benefits previously paid. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per annum, pursuant to section 85.30, Iowa Code. Defendant, Second Injury Fund, is liable for sixty-two (62) weeks of Fund benefits commencing on the day after defendants pay the final permanent partial disability benefits and at the stipu lated rate of one hundred seventy-five and 83/l00 dollars ($175.83) per week. Accrued benefits are to be paid in a lump sum together with statutory interest at the rate of ten percent (10%) per year pur suant to section 85.30, Iowa Code, as amended, and commencing on the date of the filing of this decision. Costs are taxed to defendants. Defendants shall file a claim activity report as requested by this division and pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1992. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Dennis J. Mahr Attorney at Law 318 Insurance Centre 507 7th Street Sioux City, Iowa 51101 Mr. Michael P. Jacobs Attorney at Law 300 Toy National Bank Building Sioux City, Iowa 51101 Page 14 Ms. Shirley Ann Steffe Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1803.1; 2500; 2501; 3200 Filed October 26, 1992 MICHELLE A. McGOVERN BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ : LAWRENCE LeROY MURREN, : : Claimant, : : vs. : : File No. 903477 WASTE MANAGEMENT, INC. a/k/a : SOLID WASTE SERVICES/CONTAINER : A R B I T R A T I O N HAULAWAY, : : D E C I S I O N Employer, : : and : : CNA INSURANCE COMPANIES, : : Insurance Carrier, : : and : : SECOND INJURY FUND OF IOWA, : : Defendants. : _________________________________________________________________ 1803.1 Claimant was awarded a 30% permanent partial disability to the right lower extremity. There were three functional impairment ratings given to claimant. 3200 Claimant was awarded benefits from the Second Injury Fund. 2500; 2501 Claimant was not awarded medical benefits in the form of a weight loss program where claimant's treating orthopedic surgeon could not state with a reasonable degree of medical certainty that a loss of weight would affect claimant's functional impairment rating, nor could the physician determine whether claimant could lose weight in the program. Page 1 before the iowa industrial commissioner ____________________________________________________________ : JOSEPH K. HENNESSEY, : : Claimant, : : vs. : : File No. 903497 MID STATE CONSTRUCTION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CINCINNATI INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case This is a proceeding in arbitration brought by Joseph K. Hennessey, claimant, against Mid State Construction, employer, and Cincinnati Insurance Company, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on March 28, 1988. This matter came on for hearing before the undersigned deputy industrial commissioner on March 20, 1991. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. Also present and testifying at the hearing was Doug Sedlacek and Harold Webber. The record in this case consists of joint exhibits 2, 3 and 5; claimant's exhibits 1, 4, 6-14; and defendants' exhibits A, D-I, and K-O. issues Pursuant to the prehearing report and order dated March 20, 1991, the parties have stipulated as follows: 1. That an employer-employee relationship existed between claimant and employer at the time of the alleged injury; 2. That the time off work for which claimant now seeks either temporary total disability or healing period benefits is November 17, 1988 through February 17, 1989; 3. That the type of permanent disability, if the injury is found to be a cause of permanent disability, is a scheduled member disability to the right knee; and, 4. That, in the event of an award of weekly benefits, the rate of weekly compensation is $232.95 per week. The issues in dispute in this case include: Page 2 1. Whether claimant sustained an injury on March 28, 1988, which arose out of and in the course of his employment with employer; 2. Whether the alleged injury is the cause of temporary and permanent disability and the extent thereof; 3. Whether claimant's medical expenses were incurred for reasonable and necessary medical treatment; 4. Whether the medical expenses are causally related to the work injury; and, 5. Whether claimant gave proper notice of his injury as required by Iowa Code section 85.23. findings of fact The undersigned has carefully considered all the testimony given at the hearing, the arguments made, and the evidence contained in the exhibits herein and makes the following findings: Claimant was born on January 19, 1957 and graduated from high school in 1976. His work history is primarily as a construction laborer and heavy equipment operator. Specifically, claimant worked for Mid State Construction Company as a laborer and heavy equipment operator from 1984 through July 22, 1988 when he was laid off due to lack of work. Claimant then went to work for Borst Brothers laying sewer, water and storm sewer pipes and operating heavy equipment. Claimant could not remember his start-up date but testified that he worked there until he had surgery on November 17, 1988 and for a few months in the spring of 1989. In October 1989, he went to work for Petroleum Equipment installing fuel tanks. He worked there for about nine months and quit because he was not making enough money and had traveled extensively. In the summer and fall of 1990, he worked for William Hennessey and Son as a heavy equipment operator. Claimant testified that he has not worked since the fall of 1990 because he cannot find a job which would accommodate his right leg problems. Claimant testified to suffering a traumatic event on March 28, 1988, when he slipped while climbing back into the loader he was operating and fell on his front right knee. He stated that he stepped on the track and slipped and his knee hit the steel track. His knee appeared bruised and swollen. He stated that he reported the incident to his foreman, Doug Sedlacek. However, he continued working the rest of the day running the equipment. He did not request any medical treatment because he thought it was just bruised. Mr. Sedlacek corroborated the claimant's testimony and testified that claimant notified him of the incident on the day it happened. Claimant testified that he experienced intermittent pain, swelling, stiffness and discoloration in his knee but required no time off from work because of the problem. In Page 3 October 1988, he hit his knee on a plastic shower door and irritated his condition. At this time, he sought medical treatment at Mercy North Clinic and they referred him to IMC where he saw W. John Robb, M.D. Dr. Robb prescribed some medication and exercises. Claimant testified that he was not satisfied with Dr. Robb's treatment and sought a second opinion from Martin Roach, M.D. Dr. Roach performed surgery on November 17, 1988. A review of the evidence reveals that the claimant was seen at Mercy Care North on October 5, 1988, with complaints of right knee pain radiating to the thigh area. He had bumped the knee one week prior when getting out of the shower. An x-ray was taken and he was seen by Dr. Robb on October 6, 1988. He diagnosed right knee strain. He recommended a period of rest and exercises. Dr. Robb recommended that claimant stay off work until October 17. However, claimant continued to work and aggravated his knee problems. On October 31, 1988, Dr. Robb diagnosed internal derangement, with probable tear of the lateral meniscus (Joint Exhibit 2). Being dissatisfied with Dr. Robb's treatment, claimant presented to Dr. Roach for evaluation on November 3, 1988. He diagnosed internal derangement of the right knee and recommended arthroscopy. On November 17, 1988, claimant entered Mercy Hospital and Dr. Roach performed an arthroscopy of the right knee, arthroscopic shaving of the right knee patella, arthroscopic of the shaving of the tibial plateau and lateral retinacular release. A postoperative diagnosis of traumatic chondritis with superficial chondral fracture of the patella, patellar sub luxation and superficial chondromalacia of the lateral tibial plateau, right knee was made (Ex. 1). Claimant was taken off work and placed on physical therapy, a knee immobilizer and crutches. On February 3, 1989, Dr. Roach released claimant to return to unlimited work activity at full capacity on February 17, 1989 (Ex. 5). On April 21, 1989, Dr. Roach reported, on examination: "Knee is tight. Does have some atrophy of the quad." Dr. Roach noted some permanent arthritic changes in his knee as a result of his injury and recommended modification of his lifestyle to put less strain on his knee (Jt. Ex. 2, page 3). conclusions of law Claimant has the burden of proving by a preponderance of the evidence that he received an injury on March 28, 1988 which arose out of and in the course of his employment. McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Claimant appeared at the hearing and testified to a traumatic event on March 28, 1988. He made immediate complaint and reported the incident to his supervisor, Douglas Sedlacek. Mr. Sedlacek appeared at the hearing and Page 4 testified that he was claimant's supervisor at the time of the incident and stated that claimant told him that he slipped on a loader and fell on his right knee. He testified that it was reported to him on the same day that the incident occurred. He indicated that although it is company policy to take a hurt worker to the doctor, Mr. Hennessey did not seek medical treatment because he was not aware of the seriousness of his condition and thought that he only occurred a bruise to his right knee. The evidence is uncontroverted in this regard and the undersigned concludes that claimant did sustain an injury which arose out of and in the course of his employment on March 28, 1988, in the manner which he described at the hearing. The claimant has the burden of proving by a preponderance of the evidence that the injury of March 28, 1988 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967). The medical evidence clearly demonstrates that in November 1988, claimant was diagnosed with a chondral fracture of the patella. An operative report by Dr. Roach on November 17, 1988, states that "[t]he patient had persistent pain in the right knee related to a work injury back in March, not responding to conservative treatment. He had actually bumped his knee in March and this was probably responsible for the findings, namely the chondral fracture of the patella" (Ex. 1). There is no medical evidence in the record to the contrary. Therefore, claimant has shown by a preponderance of the evidence that the injury of March 28, 1988, is causally related to the disability on which he now basis his claim. The next issue to be determined is whether claimant's injury has resulted in permanent disability. The medical evidence indicates that the claimant was released for regular employment in full capacity with no limitations or restrictions on February 17, 1989 (Ex. 5). On April 21, 1989, Dr. Roach advised the claimant not to work two heavy Page 5 labor jobs so as not to put so much strain on his knee (Ex. 2, p 3). A reexamination by Dr. Roach on February 9, 1990, revealed stable ligaments to varus and valgus stress testing. No effusion and normal range of motion was noted. Dr. Roach did not give claimant an impairment rating or permanent physical restrictions (Ex. 2, p. 4). Claimant bears the burden of proof. Claimant has failed to show by a preponderance of the evidence that he has suffered an injury which has resulted in a permanent physical impairment. Futhermore, there is insufficient evidence to demonstrate a causal connection between the work incident and claimant's condition even if it was permanent. Accordingly, claimant is entitled to 13.286 weeks of temporary total disability benefits at the stipulated rate of $232.95 per week for the period from November 17, 1988 through February 17, 1989. The final issue to be determined is claimant's entitlement to medical benefits under Iowa Code section 85.27. Defendants contend that they did not authorize claimant's medical treatment. Section 85.27 states that "the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care." However, defendants have denied that claimant's injury arose out of and in the course of the employment. Defendants cannot deny liability on the one hand and guide the course of treatment on the other. In Barnhart v. MAQ Incorporated, I Iowa Industrial Commissioner Report 16, 17 (Appeal Decision 1981). Where the employer denies liability for a work-related injury, the employer loses the right to select the care which the injured worker receives. Id. Accordingly, claimant is entitled to receive payment for all reasonable and necessary care incurred to treat his right knee injury. order THEREFORE, IT IS ORDERED: That defendants pay to claimant thirteen point two-eight-six (13.286) weeks of compensation for temporary total disability at the stipulated rate of two hundred thirty-two and 95/l00 dollars ($232.95) per week for the period from November 17, 1988 through February 17, 1989. That defendants pay for all medical and mileage expenses incurred as a result of the injury on March 28, 1988. That defendants pay accrued amounts in a lump sum. That defendants pay interest pursuant to Iowa Code section 85.30. That defendants pay costs pursuant to rule 343 IAC 4.33. That defendants file claim activity reports as required by this agency pursuant to rule 343 IAC 3.l. Page 6 Signed and filed this ____ day of April, 1991. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Donald L. Carr, II Attorney at Law 1630 42nd St NE Suite E Cedar Rapids IA 52402 Mr. J. Richard Johnson Attorney at Law P O Box 607 1715 First Ave SE Cedar Rapids IA 52406 1108.50; 1402.20; 1402.60; 1801 Filed April 12, 1991 JEAN M. INGRASSIA before the iowa industrial commissioner ____________________________________________________________ : JOSEPH K. HENNESSEY, : : Claimant, : : vs. : : File No. 903497 MID STATE CONSTRUCTION, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : CINCINNATI INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 1108.50; 1402.20; 1402.60; 1801 Claimant demonstrated causal connection between work injury and chondral fracture of the patella. No permanency causally related to injury shown. Claimant released for regular employment with no limitations or restrictions. Claimant entitled to medical benefits under section 85.27. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BRIAN W. HANSON, Claimant, File No. 903578 vs. A R B I T R A T I O N GRIFFIN PIPE PRODUCTS CO., D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ INTRODUCTION This is a proceeding in arbitration filed by Brian W. Hanson, claimant, against Griffin Pipe Products Co., employer, and self-insured defendant, for benefits as a result of an injury which occurred on December 14, 1988. A hearing was held in Council Bluffs, Iowa, on October 19, 1992. Claimant was represented by Christopher J. Tinley. Defendant was represented by W. Curtis Hewett. The record consists of the testimony of Brian W. Hanson, claimant, Thomas G. Leedy, plant personnel manager, and joint exhibits A through ff. PRELIMINARY MATTER The hearing assignment order in this case at paragraph 10 provides as follows: "All exhibits, especially medical records and reports, shall be organized by author in chronological form or in such other rational manner." The written exhibits in this case violated this directive. The exhibits were not arranged either in chronological form by author or in any other rational manner. The order of the exhibits was scrambled and disorganized and impaired, complicated and delayed the ability of the deputy to make a determination of the issues in this case. CLARIFICATION OF CREDIT Immediately following this injury claimant lost some time from work. It is not clear how much time he lost. Exhibit P, the absentee record, shows it was two days, December 15 and 16 of 1988. Claimant testified the safety director gave him two weeks off (Transcript pages 46 & 47). James P. O'Hara, M.D., reported that claimant returned to work on January 6, 1989, which is 3.429 weeks after the date of injury (Exhibit B). Daniel L. McKinney, M.D., reported that claimant lost 17 days from work which is 3.571 weeks (Ex. F). Dr. Behrouz Rassekh, M.D., reported that claimant returned to work on January 7, 1989, which is 3.571 weeks lost from work immediately after the injury (Ex. V). However, the exact number of days or weeks is not material because the hearing report specified that claimant is only Page 2 seeking temporary disability for the period from August 6, 1991 through November 22, 1991 (Hearing Report, page 1). However, this may nullify any credit against the benefits awarded in this decision for the reason that it would appear that the 4.714 weeks of benefits that the parties stipulated to on the hearing report were paid to claimant prior to hearing were paid for this earlier period rather than the period of from August 6, 1991 through November 22, 1991. ISSUES The parties submitted the following issues for determination at the time of the hearing. Whether claimant is entitled to temporary or permanent disability benefits, and if so, the extent of benefits to which he is entitled. Whether claimant is entitled to medical benefits. FINDINGS OF FACT causal connection-entitlement-temporary and permanent benefits As stipulated to by the parties, it is determined that the injury was the cause of both temporary and permanent disability. It is further determined that the injury was the cause of the specific temporary and permanent disability awarded in this decision. It is determined that claimant is entitled to healing period benefits from August 6, 1991 through November 22, 1991, a period of 15.571 weeks. Dr. O'Hara took claimant off work on August 6, 1991 (Ex. T). Claimant first returned to work on the first working day after November 22, 1991, which is the first date on which employer could provide accommodated work for claimant, after Dr. O'Hara returned him to work with restrictions on November 8, 1991 (Ex. C). Healing period does not end when an injured employee is released to return to work with restrictions. It did terminate when claimant actually returned to work. Iowa Code section 85.34(1). It is determined that claimant is entitled to 100 weeks of permanent partial disability benefits based upon a 20 percent industrial disability to the body as a whole. The supporting evidence for these determinations of causation and entitlement to temporary and permanent disability is as follows. Claimant, born April 12, 1961, was 27 years old at the time of the injury, 31 years old at the time of the hearing and 32 years old at the time of this decision. Claimant graduated from high school and completed one year of college. His employments include cleaning up campers and trailers as well as making pickups and deliveries, convenience store clerk and gas station attendant, carpenter and mold reconditioner repairing dents in molds. Claimant Page 3 started to work for employer on May 26, 1987. His various jobs for employer have been general laborer, material handler, bundler and ductile iron treater (Exs. I & O). Claimant continues to work for employer, who has accommodated claimant's restrictions imposed by the unauthorized, yet nevertheless, primary treating physician and operating orthopedic surgeon. Claimant related that on December 14, 1988, another employee signaled to him that he wanted to talk to claimant from the other side of the 24-foot wide production line. The plant is divided by the production line and is also very noisy. Therefore a common method of communication in order to speak to another person is to talk into a piece of pipe coming down the production line as a conduit for the sound of one's voice. Claimant bent down to a piece of pipe on the production line to listen to the employee who wanted to talk to him. Just then a machine operator activated the sound hood, which claimant testified weighed over 1,000 pounds. Claimant related that the sound hood came down, struck him in the back and pinned his neck, right shoulder and chest between the upper and lower portions of the sound hood device. The normal function of the sound hood is to insulate the noise of the saw cutting the pipe. Claimant testified that when the sound hood hit him on the back he was knocked unconscious. He said that he does not remember anything until the next day when he awoke in the hospital. Claimant stated that he was held in the hospital overnight for observation. The records of Mercy Hospital in Council Bluffs, Iowa for December 14, 1988, show that claimant was treated by M. K. Zlomke, M.D., for a pinning injury at work (Ex. Q). Dr. Zlomke's physical examination found (1) full but deliberate range of motion of the neck due to abrasions on the anterior lower neck, (2) tenderness over the right acromial clavicular joint, and (3) abrasions of the dorsal spine at C 6 to T 4. X-rays disclosed an acromial clavicular separation and a possible fracture of the second rib on the right posteriorly. At the time of claimant's admission to the hospital his entire right arm was numb, but after claimant worked with his arm in the hospital the doctor noted on the following day, when claimant was discharged, that he only had some distal paresthesia of the right upper extremity in the distal fingertips dorsally (Ex. Q). Claimant denied and there is no evidence of any prior problems with his neck, back or shoulders. Claimant further testified that he had a preemployment x-ray and that he was not told that he had any preexisting problems (Tran., p. 55). Claimant testified that he was authorized to see Behrouz Rassekh, M.D., a neurosurgeon, for one or two weeks and then he was released (Tran., p. 48). There are no medical records or medical evidence of the treatment received from Dr. Rassekh in 1988. Claimant contended that Dr. Rassekh did not provide any physical therapy or any other kind of care (Tran., pp. 50 & 51). However, the record shows that claimant did receive physical therapy from Page 4 Dr. Rassekh for one week sometime later on September 25, 1990 (Ex. U). Claimant further contended that Dr. Rassekh told him that it would take a long time maybe even a year for all of the pain to dissipate because the bruises were very deep and it would take a long time for them to heal (Tran., p. 47). Dr. Rassekh did not impose any restrictions on claimant's work (Tran., p. 48). However, claimant testified that it was necessary for him to change the way in which he did some jobs (Tran., p. 48). Claimant told that he waited the allotted time of a year or so for the pain to go away. When it did not do so he talked to the plant personnel manager at that time about seeing a doctor. Claimant testified that he was told that his recent job change from material handler to general labor was causing his problem because he was not sufficiently conditioned for it (Tran., pp. 49 & 50). Claimant related that when he saw Dr. Rassekh again he was told there was nothing wrong with him and Dr. Rassekh recommended full work (Tran., p. 50). Claimant further testified that the personnel manager denied him any medical care other than the care of Dr. Rassekh (Tran., pp. 53 & 54). Claimant then contacted James P. O'Hara, M.D., an orthopedic surgeon, on his own on July 2, 1990 for his complaints about his neck, back and shoulder which according to the doctor were caused by the sound hood falling on him on December 14, 1988 (Ex. B). Dr. O'Hara reported that claimant was working as a bundler at the time of this examination which involved stacking pipes on 4 x 4s and banding them together. This involved overhead work using the banding machine. Dr. O'Hara diagnosed that claimant had sustained a concussion, multiple contusions and abrasions and presently had a rotator cuff impingement syndrome. He ordered an MRI of the cervical spine and right shoulder (Ex. B; Ex. ee, pp. 7 & 8). On July 23, 1990, Dr. O'Hara reported that the MRI's showed an increased uptake around the bicepital tendon on the right side and in the right AC joint compatible with chronic bicepital tendinitis. With respect to causal connection Dr. O'Hara stated that the patient's problems are predominantly related to the injury and were aggravated by his continued work. He recommended either a change of employment or a job modification of claimant's work. He specified that claimant was to avoid overhead work (Ex. R, p. 1). After claimant saw Dr. O'Hara on his own authority, he was then directed by employer to see Daniel L. McKinney, M.D., another neurosurgeon, as the authorized treating physician (Tran., p. 57). The new plant personnel manager at this time, Thomas G. Leedy, wrote to claimant on August 27, 1990, that Dr. McKinney was the authorized treating physician and that any other physician would be unauthorized and would not be paid by employer (Ex. J). Claimant saw Dr. McKinney on September 7, 1990. Dr. McKinney proceeded to examine and recommend for claimant on Page 5 the basis of the history of the sound hood injury. He found that claimant had sustained a straining injury to his neck and a direct injury to his right shoulder. He commented that the MRI ordered by Dr. O'Hara showed a slight bulging of the disc at C-5. Dr. McKinney made a report but rather than send it to the plant personnel manager he addressed it to Dr. O'Hara. He recommended that claimant continue with the conservative care of Dr. O'Hara. Dr. McKinney's report is dated September 13, 1990 (Ex. F). On this same date, September 13, 1990, Leedy, the new plant personnel manager wrote three letters. (1) He informed claimant that Dr. O'Hara was not an authorized physician and that employer would not pay for his care. Instead he reauthorized, effective immediately, that Dr. Rassekh was the authorized treating physician (Ex. K), (2) the plant personnel manager also wrote to Dr. McKinney on this date to express his dissatisfaction that Dr. McKinney had authorized claimant to see Dr. O'Hara without any authority from the employer. He further told Dr. McKinney that he referred claimant to him only as an evaluating physician (Ex. L), (His letter of August 27, 1990 told claimant Dr. McKinney was a treating physician Ex. J) and (3) the personnel manager wrote to Dr. O'Hara to inform him that he was not an authorized treating physician and that employer would not pay for any of his charges (Ex. M). Claimant testified that he continued to see Dr. Rassekh about getting surgery, but according to claimant, Dr. Rassekh told him that there was nothing that he could do for him and eventually told claimant that claimant's injury was not in his field of expertise (Tran., p. 59). The record shows that on September 25, 1990, Dr. Rassekh confirmed that the MRI of Dr. O'Hara showed some bulging disc at C 5-6 and that claimant continued to complain of pain in the right side of the neck and the right shoulder (Ex. V). Later, on June 17, 1991, Dr. Rassekh wrote that claimant had no neurosurgical or neurological disability. He said that claimant's problems were of an orthopedic nature and therefore any restrictions should be recommended by an orthopedic surgeon (Ex. A). Claimant returned to Dr. O'Hara again as a matter of his own personal choice on June 20, 1991, approximately one year after his first contact with Dr. O'Hara on July 2, 1990. This time his complaint focused on his upper thoracic spine. Dr. O'Hara found no change on the new thoracic spine films different from what was found in December of 1988, when the injury occurred (Ex. R, p. 2). After claimant saw Dr. O'Hara a second time without authority he was directed verbally by employer to see Ronald K. Miller, M.D., an orthopedic surgeon (Tran., p. 60). On July 17, 1991, Dr. Miller reported that an MRI which he had ordered was suspicious for a partial tear of the rotator cuff. Dr. Miller diagnosed AC separation, possible partial right rotator cuff. It should be noted that back on December 14, 1988, Dr. Zlomke recorded an acromial clavicular separation based on x-rays taken at the time (Ex. Q). Also, Dr. O'Hara diagnosed rotator cuff impingement on Page 6 July 2, 1990 (Ex. B). Dr. Miller gave claimant a steroid injection and prescribed medication for pain. He found claimant to be in full work status, but ordered a follow-up examination in six weeks on August 28, 1991 (Ex. W & ee, p. 6). He added that if claimant continues to have trouble that he may need a resection of the tip of the clavicle and probably should have his rotator cuff explored at that time (Ex. W). Even though claimant was returned to full work (Ex. W), nevertheless, at the same time, Dr. Miller also prescribed light work on July 17, 1991, which he defined as lifting ten pounds frequently and a maximum of twenty pounds at most (Ex. X). Even though claimant had a return appointment with Dr. Miller for August 28, 1991, he nevertheless returned to see Dr. O'Hara on August 6, 1991, at which time the doctor noted that MRIs had established cervical disc disease at C-5-6, rotator cuff impingement syndrome and right acromicolavicular degenerative joint disease. He related that claimant had snapping with abduction and external rotation in the right A/C joint. Dr. O'Hara further stated that because of claimant's long-standing complaints he recommended a resection of the A/C joint and acromioplasty (Ex. R, p. 3; Ex. S). He issued a prescription slip on August 6, 1992 to the affect that claimant would be totally disabled from that date for one month (Ex. T). The plant personnel manager wrote to claimant the following day, on August 7, 1991, reinforming claimant that Dr. O'Hara was not the authorized physician and that employer would not be responsible for any bills submitted by Dr. O'Hara (Ex. N). Nevertheless, Dr. O'Hara performed a resection of the lateral end of the clavicle and acromioclavicular joint and Neer acromioplasty of the right shoulder on August 9, 1991 (Ex. R, p. 3; Ex. dd, Deposition Ex.; Ex. Z). After the surgery a normal EMG and nerve conduction test were reported on September 23, 1991 (Ex. H; Ex. dd, pp. 22 & 23). Claimant was released to return to work on November 8, 1993, with restrictions of no overhead work and no repetitive lifting over thirty pounds (Ex. C). The parties agreed that claimant was unable to actually return to accommodated work until after November 22, 1991. The parties stipulated that claimant was off work from August 6, 1991 through November 22, 1991 (Hearing Report, p. 1; Tran., p. 4). Thus, the only evidence of healing period is from August 6, 1991 through November 22, 1991. There is no opposing evidence or argument to the contrary. Therefore, it is determined that claimant is entitled to healing period benefits from August 6, 1991 through November 22, 1991. On March 6, 1992, Dr. O'Hara reported that claimant was having intermittent popping between the shoulder blades and pain toward the end of the day. Claimant was continued on pain medication. Dr. O'Hara renewed the previous restrictions. He reported that claimant had a complete range of motion of the right shoulder with pain on extremes. Some fine crepitus was palpable over the distal clavicle and Page 7 rotator cuff. He said that claimant had attained maximum medical improvement (Ex. D). Even though claimant attained maximum medical improvement on March 6, 1992, nevertheless, healing terminated when claimant returned to work on the earlier date which was the first working day after November 22, 1991 (Iowa Code section 85.34(1)). On April 16, 1992, Dr. O'Hara reported that claimant had the same problems. He assessed that claimant had sustained a five percent permanent impairment to the cervical spine and a ten percent impairment to the right shoulder (Ex. E). On June 19, 1992, claimant was reexamined by Dr. Miller who recorded shoulder pain as a diagnosis. He found a full range of motion and no crepitus. He said that a physical capacity examination (not in evidence in the record) showed good strength. Dr. Miller took claimant off light work and returned him to full work at his regular job (Ex. G). Claimant contended that Dr. Miller's opinion about returning to full work should be discounted because Dr. Miller had no job description and no idea of what claimant's job duties entailed (Tran. pp. 29 & 68). Claimant testified that he knew Dr. Miller but that the relationship was not friendly. Claimant testified that when he was a child the farm of his family was adjacent to Dr. Miller's home and there were conflicts between his family and Dr. Miller's children (Tran., pp. 52 & 53). Dr. O'Hara testified by deposition on October 15, 1992 that he is a board certified orthopedic surgeon (Ex. dd, pp. 6 & 7). He described that the surgery disclosed that the right A/C joint was essentially destroyed (Ex. dd, p. 20). He said that claimant still had some crepitus and pain in the neck and right shoulder but that he had done all that he could do for him except to continue to prescribe nonsteriod anti-inflammatory medications (Ex. dd, p. 27). Dr. O'Hara testified that he had an opinion as to the cause of claimant's neck and shoulder problems. The following quoted statement substantiates the determination of this deputy that this injury was the cause of claimant's temporary and permanent disability. Dr. O'Hara testified, "I believe that the cause of Mr. Hanson's neck and shoulder problem was the accident which occurred in December of 1988 and subsequent aggravation of this problem by the nature of his work." (Ex. dd, pp. 27 & 28). This testimony is not controverted, contradicted, rebutted or refuted by any other evidence. Dr. O'Hara further supplied that claimant's injury was permanent (Ex. dd, p. 28). Dr. O'Hara testified, Page 8 "Q. Could you explain to me what you mean by permanent? "A. Well, permanent because his shoulder has been changed. It is not like it was before. Both from his injury and the necessary treatment to his shoulder. So he doesn't have an A/C joint. He has a rotator cuff which will give him problems intermittently. He has degenerative posttraumatic cervical disc disease which will give him a problem the rest of his life intermittently with neck pain, shoulder pain. I guess that's what I mean by permanent." (Ex. dd, p. 36). Dr. O'Hara explained that his impairment rating of five percent to the neck and ten percent to the shoulder by saying the percentages convert and combine to be a ten permanent impairment to the body as a whole. He acknowledged that his ratings are based on the AMA Guides and his own personal experience and judgment (Ex. dd, pp. 28, 29, 37 & 38). There are no other impairment ratings in the record. Dr. O'Hara did not anticipate any additional surgery but did indicate that claimant would need intermittent medications (Ex. dd, p. 30). He said this impairment would not decrease (Ex. dd, p. 50). He added that his previous restrictions were now considered to be permanent. He said that claimant should avoid overhead work. He should not lift more than 50 pounds one time. He should avoid repetitive lifting of more than 30 pounds and he defined repetitive as five times in one hour (Ex. dd, p. 30 & 48). He testified that claimant has potential to become symptomatic again if he doesn't avoid these activities (Ex. dd, p. 49). The doctor testified that he requested a job description from employer several times but never received one (Ex. dd, p. 41). The plant personnel manager, however, testified that the company does not have job descriptions but only classifications for contract negotiations with the union (Ex. ff, Tran., pp. 128 & 129). Claimant testified that as of the time of the hearing that his shoulder still gets sore and numb on the outer edges (Tran., pp. 73 & 74). His neck can range from feeling fine to very, very tender. He said he has a large loss of rotation. He said that he is not able to turn his head nearly as far as if he had not been injured (Tran., p. 74). Claimant said he was precluded from performing a lot of personal activities such as changing oil in his car, engaging in archery, pin shooting, home remodeling, auto mechanics and carpentry (Tran., p. 89). Claimant alleged that the bulging disc in his neck causes headaches (Tran., p. 90). Claimant's personal complaints appear to be consistent with the objective findings of injury in this case, Dr. O'Hara's findings, and Dr. Miller's findings. They do not Page 9 appear to be exaggerated or excessive. Claimant contended that he is a general laborer earning $10.695 per hour (Ex. ff, Tran., p. 75). He testified that he could also be a material handler if the job was accommodated by employer. He said that his restrictions preclude him from performing the work of a bundler and a ductile iron treater because of the lifting restrictions. General laborer is the lowest paying job (Ex. ff). Claimant testified that he is relegated to be a general laborer for the rest of his career with employer (Tran., p. 96). At the same time claimant testified that his earnings have never decreased but have always increased (Tran., p. 96; Ex. I). Claimant further admitted that he did not feel that he was in any danger of losing his job (Tran., p. 109). He further testified that he wants to keep his job (Tran., pp. 113 & 114). One of claimant's major complaints was that his ability to advance is severely limited (Tran., p. 114). He testified that 68 persons have been hired after him and all of them, except one, have advanced to higher paying jobs (Tran., pp. 110 & 111). Claimant felt that he is stuck in the lowest paying job with employer without any chance of advancement. Leedy, the plant personnel manager, testified that jobs are based on bidding and seniority and that claimant could bid on anything which he felt qualified for and for which he had seniority (Tran., p. 132). He speculated that claimant was a general laborer because that is what he wanted to do (Tran., p. 132). Leedy testified that claimant's job was secure (Tran., p. 133). Leedy testified that he did not feel obligated to comply with Dr. O'Hara's restrictions but that he had voluntarily done so in order to prevent any further injury to claimant. On the brighter side claimant is young enough, in his early thirties, to change careers or find a different kind of employment Beck v. Turner Bush, Inc., 34 Thirty-fourth Biennial Report of the Industrial Commissioner 34 (App. Dec. 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company, Inc., file numbers 782670 & 805200 (App. Dec. 1989). With a high school education and one year of college it would appear that claimant has the intellectual capacity for either (1) academic training or (2) on-the-job training or retraining for other employment endeavors Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 89 (1984). Wherefore, based upon the following factors (1) that claimant sustained a very severe traumatic injury when a 1,000 pound sound hood pinned his upper torso in the machinery which caused chest, cervical spine, thoracic spine and right shoulder injuries, (2) that claimant lost consciousness due to the traumatic injury, required hospitalization and eventually a resection of the Page 10 acromioclavicular joint and arcomioplasty for a shoulder separation first diagnosed when claimant was hospitalized immediately after the injury, (3) that the primary treating physician and operating surgeon (Dr. O'Hara) determined that claimant has sustained a ten percent permanent impairment to the body as a whole, (4) that claimant is permanently restricted from overhead work with his right upper extremity, restricted from lifting more than 50 pounds one time, and restricted from repetitively lifting more than 30 pounds, (4) that Dr. O'Hara said claimant would have continuing problems and would require continued nonsteriod anti-inflammatory medications intermittently for right neck and right shoulder pains into the indefinite future, (5) that Dr. O'Hara said that claimant's acromioclavicular joint was essentially destroyed, that his shoulder is permanently changed, that he no longer has an acromioclavicular joint, that his rotator cuff will give him problems intermittently and that degenerative posttraumatic cervical disc disease will give him a problem the rest of his life intermittently with neck pain and shoulder pain, (6) that claimant did not have any preexisting problems of this nature prior to this injury, (6) that claimant's chances for advancement in job earnings are severely restricted even though he has never suffered an actual loss of earnings since the injury, (7) that employer has accommodated claimant's restrictions and that his job is not in any jeopardy at this time and (8) considering claimant's age, education and capacity for retraining it is determined that claimant has sustained a 20 percent industrial disability to the body as a whole and is entitled to 100 weeks of permanent partial disability benefits. This award would be substantially higher except for the fact that employer has attempted to accommodate claimant's job restrictions and that his continued employment with employer is not in jeopardy. At the same time it must be considered that the opportunity afforded by employer to claimant to continue to work at accommodated tasks would not transfer to other employers in the competitive employment market if claimant was forced to seek work with a new employer with no seniority and an unknown performance record Hartwig v. Bishop Implement Company, IV Iowa Industrial Commissioner Report, 159 (App. Dec. 1984). Claimant would not find the same careful accommodations of his restrictions and limitations in his neck and shoulder with a new employer Todd v. Department of General Services, Buildings and Grounds, IV Industrial Commissioner Report 373 (1983). No claim was made for penalty benefits under Iowa Code section 86.13(4). MEDICAL BENEFITS It is clear from the foregoing summary of the evidence that Dr. O'Hara was not an authorized physician. On the contrary, employer promptly notified claimant, in writing, after each time that he saw Dr. O'Hara that Dr. O'Hara was not an authorized treating physician and that they would not honor his bills. Page 11 Employer is entitled to the right to choose the care, Iowa Code section 85.27 unnumbered paragraph 4. At the same time, employer did not provide effective orthopedic care until after claimant engaged the services of Dr. O'Hara, his own orthopedic surgeon, on two different occasions. The right to choose the care is not absolute. It depends on the facts and circumstances of any given case. Santucci v. Air and Water Technologies Corp., File No. 967995, filed April 23, 1993; Morrison v. Excel Corp., 1037299, filed May 6, 1993.edic problem. Nevertheless, employer repeatedly authorized claimant to see only a neurosurgeon, Dr. Rassekh. Dr. Rassekh told claimant in the beginning that there was nothing he could do for him according to claimant's unrebutted testimony. The medical records of Dr. Rassekh for claimant's initial treatment by him were not introduced into evidence. Claimant testified that he waited a year or so as recommended by Dr. Rassekh for the pain to dissipate simply by the expiration of time and apparently the ability of the body to heal itself over time. After a year passed and claimant still had problems with his neck, shoulder and upper back he asked the former plant personnel manager at that time if he could see a doctor. According to claimant's Page 12 unrebutted testimony he was denied this request. Instead, he was told that he simply wasn't properly conditioned for the general laborer job after working as a material handler. Claimant testified that when he saw Dr. Rassekh again he was told that there was nothing wrong with him and Dr. Rassekh recommended full work (Tran., p. 50). Thus, in order to obtain proper orthopaedic care claimant was forced to see Dr. O'Hara at his own expense. Dr. O'Hara unequivocally causally connected claimant's complaints to this injury. Dr. O'Hara ordered an MRI which disclosed orthopaedic problems, to wit: bicipital tendinitis and acromical-clavicular joint problems. Nevertheless, employer's response was to send claimant to see another neurosurgeon, Dr. McKinney. When Dr. McKinney recognized that claimant had orthopaedic problems he told claimant to continue with Dr. O'Hara, an orthopaedic surgeon. Employer's response to Dr. McKinney's recommendation was to refer claimant back to Dr. Rassekh, the neurosurgeon, who had been unable to treat claimant effectively for a year and a half and who had never ordered an MRI himself, or requested any other advanced objective tests in the face of claimant's continued complaints of pain. Nor did Dr. Rassekh take the initiative to refer claimant to an orthopaedic surgeon where claimant could receive orthopaedic care. Typically, if a doctor is unable to help a patient, and the patient still has complaints, then that doctor will refer the patient to someone who he believes can help the patient. This is not only in the best interest of the patient but also the doctor's exposure for potential liability for ineffective treatment. It wasn't until June 17, 1991, some two and one-half years after the date of injury, that Dr. Rassekh, belatedly, in a response to a letter from claimant's attorney admitted (in writing) that claimant's problems were orthopaedic in nature and that any restrictions should be recommended by an orthopaedic surgeon (Ex. A). Iowa Code section 85.27, unnumbered paragraph four, provides: "The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee." Employer violated the duty to promptly provide care reasonably suited to treat the injury and caused the employee the lengthy inconvenience of untreated pain by not providing claimant with the effective care of an orthopaedic surgeon. By violating the duty to promptly offer medical care reasonably suited to treat the injury employer forfeited the right to choose the care until they did provide the proper care and therefore are liable for the medical expenses of Dr. O'Hara and the tests and medications that he ordered up until defendant employer offered the effective orthopedic care of Dr. Miller. If Dr. Rassekh, the authorized treating physician by employer for the entire period of time from the date of the Page 13 injury in December of 1988, until shortly before claimant's surgery in 1991, was not able to provide the proper care because he is a neurosurgeon and claimant's problem was orthopedic in nature, then Dr. Rassekh should have said so before June 17, 1991 (Ex. A). True, Iowa Code section 85.27, unnumbered paragraph 4 provides that the employer has the right to choose the care but equal attention must be given to the next sentence which states "The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee." Thus, it cannot be said in this case that employer acquiesced in the care of Dr. O'Hara because it is clear that they did not, but on the contrary vehemently protested the fact that claimant had sought his care. There are situations where it has been held that the employer acquiesced in the care chosen by claimant but this is not one of them. Santucci, File No. 967995; Conte v. Heartland Lysine, Inc., File No. 900546 (June 13, 1991); Coble v. Metromedia, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 71 (1979); Munden v. Iowa Steel and Wire, Thirty-third Biennial Report of the Industrial Commissioner 99 (1977). Nor can it be said in this case that employer waived the right to choose the care. Santucci, File No. 967995; Kelley v. Firestone Tire and Rubber Co., File No. 990797 (March 23, 1992); Worrell v. Griffen Wheel Co., File No. 702268 (Appeal Decision February 26, 1988); Richards v. Dept. of General Services, Vol. 1, No. 3, State of Iowa Industrial Commissioner Decisions 684 (Appeal decision 1985); Smith v. Carnation Company, II Iowa Industrial Commissioner Report 366 (1981). At the same time it cannot be said that employer actively monitored the care or provided effective care promptly offered and reasonably suited to treat the injured employee without undue inconvenience to him. Morrison v. Excel Corp., File No. 1037299 (May 6, 1993). Therefore, it is determined that employer is liable for the charges of Dr. O'Hara and the tests and treatment that he recommended up until the time that employer arranged for claimant to receive the effective orthopaedic care of Dr. Miller, an orthopaedic surgeon, on July 17, 1991. These expenses are as follows: James P. O'Hara, M.D., 6-20-90 through 7-02-90 $249.00 Ex. ee, p. 9 & 19-26 Walgreens, prescription, 8-28-90 28.29 Ex. ee, p. 29 Nebraska Clinician's Group, MRIs, 7-06-90 290.00 Ex. ee, pp. 7 & 8 ________ Total $567.29 Once employer referred claimant to Dr. Miller, claimant Page 14 then received effective orthopaedic treatment. Dr. Miller ordered his own MRI and in his reports had laid the typical groundwork prior to recommending shoulder surgery on August 28, 1991. Furthermore, employer timely protested the surgery of Dr. O'Hara on August 9, 1991 and notified claimant in person and in writing that they would not be liable for the charges of Dr. O'Hara because he was not an authorized surgeon. Claimant submitted to the surgery of Dr. O'Hara, on August 9, 1991, at his own peril, rather than wait for what appeared to be the imminent upcoming surgery recommendation of Dr. Miller which was to be forthcoming on August 28, 1991. Therefore, the charges for the surgery performed by Dr. O'Hara on August 9, 1991 and related expenses and postsurgical expenses were not authorized and are not allowed. Nor was the office visit to Dr. O'Hara on August 6, 1991 authorized and it is not allowed. However, employer's failure to pay the bill of Dr. Miller in the amount of $78.40 for his first examination on July 17, 1991, when both claimant and employer through Leedy acknowledged that he was designated as an authorized physician is totally unexplainable (Ex. ee, p. 6). Likewise, the x-rays ordered by Dr. Miller on July 12, 1991, for claimant in the amount of $740 are also owed by employer (Ex. ee, p. 2). Leedy acknowledged that if these are Dr. Miller's bills they should be paid (Tran., pp. 140 & 141). There is no question that they are Dr. Miller's bills because they both bear his name and the services were performed in conjunction with the first examination that employer authorized by Dr. Miller in July of 1991. These bills total $818.40. It is the failure to pay medical expenses, which are legitimately owed by employers and insurance carriers, which bring financial pressure to bear on injured claimants who are unable to work, which has prompted and promoted proposed legislation for the imposition of interest and penalties on medical bills which are denied payment without any justification or excuse. The "balance forward" bill from Diagnostic Pathology Specialists dated June 12, 1992, in the amount of $108.25 is not sufficiently identified as to be related to this injury or the treatment of any of the physicians in this case and therefore cannot be allowed (Ex. ee, p. 5). All of the other bills are identifiable with the care provided by Dr. O'Hara, who was an unauthorized physician, and therefore employer is not liable for these medical expenses (Ex. ee, pp. 7-30). CONCLUSIONS OF LAW WHEREFORE, based upon the foregoing and following principles of law these conclusions of law are made: That the pinning injury of December 14, 1988, was the cause of claimant's temporary and permanent disability, Page 15 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 15.571 weeks of healing period benefits for the period from August 6, 1991 through November 22, 1991, Iowa Code section 85.34(1). That Claimant has sustained a 20 percent industrial disability to the body as a whole and is entitled to 100 weeks of permanent partial disability benefits Iowa Code section 85.34(2)(u). Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 State of Iowa Industrial Commissioner Decisions 654, 658 (App. Dec. February 28, 1985). Christensen v. Hagen, Inc., vol. I, No. 3, State of Iowa Industrial Commissioner Decisions 529 (App. Dec. March 26, 1985). Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 899 (1935). Iowa Administrative Procedure Act 17A.14(5). That employer did not meet the obligation to actively monitor the medical care chosen by them. Cox, Thirty-fourth Biennial Report of the Industrial Commissioner 79, 80); Zimmerman, II Iowa Industrial Commissioner Report 462. That employer failed to provide claimant with effective care that was promptly offered and reasonably suited to treat the injury of claimant until July 17, 1991. Iowa Code section 85.27. That by failing to provide claimant with effective orthopaedic care promptly offered and reasonably suited to threat the injury without undue inconvenience to the injured employee, then employer forfeited the right to choose the care until such time that they did provide the effective care of an orthopaedic surgeon. That employer failed to provide claimant the effective care of an orthopaedic surgeon (Dr. Miller) until July of 1991; and therefore employer is liable for the charges of the orthopaedic surgeon retained by claimant (Dr. O'Hara) until July 17, 1991, in order to receive proper and effective care in the amount of $567.29 as detailed above; and that employer is liable for these medical expenses. That employer failed to pay the legitimate charges of their own selected and authorized treating physician, Dr. Miller, in the amount of $818.40, without any justification or excuse and employer is also liable for these medical expenses. ORDER THEREFORE, IT IS ORDERED: That defendant employer pay to claimant fifteen point five seven one (15.571) weeks of healing period benefits at the stipulated rate of three hundred fourteen and 98/100 dollars ($314.98) per week in the total amount of four Page 16 thousand nine hundred four and 55/100 dollars ($4,904.55) commencing on August 6, 1991. That defendant pay to claimant one hundred (100) weeks of permanent partial disability benefits at the stipulated rate of three hundred fourteen and 98/100 dollars ($314.98) per week in the total amount of thirty-one thousand four hundred ninety-eight dollars ($31,498) commencing on November 23, 1991. That the parties stipulated that defendant paid claimant four point seven one four (4.714) weeks of workers' compensation benefits at the rate of three hundred fourteen and 98/100 dollars ($314.98) per week prior to hearing but it cannot be determined by this deputy whether this is a true credit against this award because it appears that these may be the benefits which were paid to claimant when he was off work for anywhere from two days to three weeks in December and January of 1988. That these benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendant employer pay to claimant or the provider of medical services $1,385.69 as calculated and detailed above. That the costs of this action, including the cost of the attendance of the court reporter at hearing and the transcript of hearing are charged to defendant pursuant to Iowa Code sections 86.19(1) and 86.40 and rule 343 IAC 4.33. That defendant employer is ordered to file a first report of injury within ten (10) days after the signing and filing of this decision because there is no first report of injury in the industrial commissioner's file. Since claimant did not object to defendant's failure to file a first report of injury no sanctions were imposed on defendant. (See paragraph 2 of the Hearing Assignment Order). Signed and filed this ____ day of May, 1993. ______________________________ WALTER R. McMANUS, JR. DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Christopher J. Tinley Attorney at Law 306 Metropolitan Federal Bank Bldg. Council Bluffs, IA 50503 Page 17 Mr. W. Curtis Hewett Attorney at Law 35 Main Place, Ste. 300 Council Bluffs, IA 50503 1802, 1803, 2501, 2700 2901, 2902, 2906 Filed May 27, 1993 Walter R. McManus, Jr. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ BRIAN W. HANSON, Claimant, File No. 903578 vs. A R B I T R A T I O N GRIFFIN PIPE PRODUCTS CO., D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ 1802 Healing period awarded basically as agreed to by the parties and as supported by the medical evidence. Healing period did not terminate when the doctor released claimant to go to work with restrictions but rather it terminated when employer gave claimant accommodated work so he could return to work. Healing period did not terminate when the doctor said claimant had reached maximum improvement because claimant returned to work at an earlier date. 1803 Claimant awarded 20 percent industrial disability. He received a severe traumatic injury when his upper torso was pinned by a 1000 pound sound hood, knocked unconscious and hospitalized. The primary treating physician gave the only impairment rating of 10 percent. Claimant was permanently restricted from overhead work, lifting 50 pounds more than one time and 30 pounds repetitively. The doctor prognosticated that claimant would have neck and right shoulder pain for the rest of his life and would require medications intermittently. Claimant's aromioclavicular joint was essentially destroyed and was resected and reformed. Claimant's opportunity for advancement with this employer was limited to general laborer because of his restrictions. Factors reducing industrial were claimant's young employment age of thirty years and his retrainability. Also, a big factor was the fact employer had accommodated the employee with work within his restrictions and both employer and employee said that claimant's job security was not in jeopardy. However, it was noted that employer's accommodation was not transferable to the competitive labor market. Cites Page 2 2501, 2700 Employer provided only the care of a neurosurgeon when it was clear that claimant needed orthopaedic care. It was determined that employer did not acquiesce in the physician claimant chose to see on his own nor did employer waive the right to choose the care because employer at all times had assigned a neurosurgeon to treat claimant and had protested and notified claimant and his chosen physician that he was not authorized. However, it was determined that employer forfeited the right to choose the care during the period when they only authorized a neurosurgeon, whose care was ineffective, when it was clear that claimant needed an orthopaedic surgeon and claimant's medical expenses for his choice of physician during this period of time were awarded. The basis for this determination was that the right to choose the care is not absolute. Employer forfeited the right to choose the care by not providing effective orthopaedic care, promptly offered and reasonably suited to treat the injury without undue inconvenience to the employee. Also, employer had failed to actively monitor the care. Numerous cites. Once employer had authorized an effective orthopaedic surgeon then claimant's medical expenses with his own physician after that time were denied. Thus, claimant's choice of physician, who was unauthorized after employer eventually authorized an orthopaedic doctor, still remained the primary treating and operating surgeon. Employer failed to pay the bills of the orthopaedic surgeon that they retained without any explanation, justification or excuse. It was commented that this conduct is what has prompted legislation for interest and penalties on unreasonable failure to pay legitimate medical expenses. 2901, 2902, 2906 Since claimant failed to object to the failure of defendant to file a first report of injury no sanctions were imposed on defendant. Defendant was ordered to file a first report of injury within ten days of the signing and filing of the decision.