Page 1 before the iowa industrial commissioner ____________________________________________________________ : ROBIN RAY PICKEL, : : Claimant, : File No. 933555 : vs. : A R B I T R A T I O N : BRIAN'S STANDARD, : D E C I S I O N BRIAN J. VINCENT, : : Employer, : Defendant. : ____________________________________________________________ introduction This is a proceeding in arbitration brought by Robin Ray Pickel against his former employer, Brian J. Vincent, d/b/a Brian's Standard. The case was scheduled for hearing at 8:00 a.m. on February 21, 1991 at the county courthouse in Dubuque, Iowa. Notice of the time and place of hearing was given to the employer by certified mail as shown in the agency file. Claimant appeared in person with his attorney of record, but there was no appearance by or on behalf of the employer. A review of the file demonstrated that the Original Notice and Petition was served on the employer by certified mail, but that the employer had not filed an answer to the claimant's petition or otherwise defended against the claim. The employer was then found to be in default as a result of his failure to appear for hearing. The employer had also failed to provide a certified shorthand reporter as had been ordered by the hearing assignment order. The claimant declined to provide such a reporter and waived the requirement for recording the oral proceeding. issues The claimant seeks compensation for temporary total disability and payment of medical expenses totalling $2,365.90. findings of fact Having considered all the evidence received, together with the appearance and demeanor of the witness, the following findings of fact are made. Robin Ray Pickel was employed by Brian Vincent who operates Brian's Standard located in Dubuque, Iowa. Vincent has operated the service station for approximately 19 years. On June 30, 1989, Robin Pickel sustained burns while attempting to repair a leak in the cooling system of a customer's vehicle. Brian Vincent was aware of the injury immediately after it occurred and instructed Robin that he should tell the physicians to charge the costs of treatment Page 2 to him, the employer. Exhibit 2 which was received into evidence shows some of the burns which affected the claimant's right arm and chest. Robin received treatment for the burn injury from Finley Hospital, Mercy Health Center and Medical Associates Clinic, P.C. Their charges as shown in exhibit 1 total $2,365.90. In obtaining treatment for the injury, Robin traveled 300 miles. The amount charged by the providers of medical care is found to be reasonable. Robin has paid the charges of Medical Associates Clinic, P.C., with his own funds. The charges from the other medical care providers are currently unpaid. At the time of injury, Robin Pickel was married and had one child. He earned $4.25 per hour for all hours worked and had worked an average of 58 hours per week during the 13 weeks preceding the date of his burn injury. Following the injury, Robin remained disabled until his treating physician released him to return to work on August 1, 1989. He has no permanent disability from the injury. conclusions of law This agency has jurisdiction of the subject matter of this proceeding and of its parties. Claimant has the burden of proving by a preponderance of the evidence that he received an injury on June 30, 1989 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. Cent. Tel. Co., 261 Iowa 352, 154 N.W.2d 128 (1967). Robin Pickel performed services which were part of the ordinary business of Brian's Standard. He was paid by Brian Vincent for those services. It is therefore determined than an employer-employee relationship existed at the time of injury. The function of repairing motor vehicles is part of the ordinary business of a service station. Claimant's activities in seeking to repair the cooling system leak were part of the normal duties performed by employees of a service station. The claimant was performing work as an employee at the time the burn injury occurred. It is therefore concluded that the burn injury arose out of and in the course of the claimant's employment with the employer. Under Code section 85.33, an injured employee is entitled to recover weekly compensation for temporary total disability until the employee either returns to work or has otherwise recovered from the injury. In this case, it is concluded that the claimant's entitlement to temporary total disability compensation runs from the date of injury until August 1, 1989 when he was released to return to work by his treating physician. The period of entitlement is therefore four and five-sevenths weeks. Page 3 According to the evidence of claimant's earnings, his gross earnings averaged $246.50 per week. Code sections 85.61(10) and 86.8(2) provide the statutory basis for the benefit schedule published annually by the Division of Industrial Services. There is, however, no specific statute or administrative rule which governs its contents other than Code sections 85.36, 85.61 and 343 IAC 8.2. The instructions in the schedule require rounding of the gross weekly earnings to the nearest whole dollar. There is no instruction for what is to occur when the actual gross weekly earnings are midway between whole dollars as is present in this case. Two hundred forty-six dollars fifty cents rounds to $246.00 or $247.00 depending upon which rule of rounding is applied. The Division has a long-standing practice of rounding up, rather than down, whenever this situation arises. It can be justified by the judicial precedents which direct that the workers' compensation laws be construed in the manner most favorable to the injured employee. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 188 (Iowa 1980). It is therefore concluded that the practice of rounding up is the correct practice. Robin Pickel's gross weekly earnings are therefore $247.00 for use of the benefit schedule. He was married and had one child. Using the July 1, 1988 benefit schedule, the rate of compensation for a married worker with one child (3 exemptions) and gross weekly wages of $247.00 is $167.72 per week. Under the provisions of Code section 85.27, the employer of an injured employee is responsible for payment of the costs of medical treatment, including travel to and from the places where medical treatment is provided. Based upon the previous findings, claimant is entitled to recover the following expenses: Finley Hospital $ 75.00 Mercy Health Center 2,168.40 Medical Associates Clinic, P.C. 122.50 Travel mileage (300 miles @ $.21) 63.00 Total $2,428.90 order IT IS THEREFORE ORDERED that Brian Vincent pay Robin Ray Pickel four and five-sevenths (4 5/7) weeks of compensation for temporary total disability at the rate of one hundred sixty-seven and 72/100 dollars ($167.72) per week payable commencing June 30, 1989. IT IS FURTHER ORDERED that Brian Vincent pay Robin Pickel interest on the foregoing temporary total disability compensation computed from the date each weekly payment came due until the date of actual payment at the rate of ten percent (10%) per annum pursuant to Code section 85.30. IT IS FURTHER ORDERED that Brian Vincent pay Robin Pickel the sum of two thousand four hundred twenty-eight and 90/100 dollars ($2,428.90) in accordance with Code section 85.27. Page 4 IT IS FURTHER ORDERED that the costs of this action are assessed against Brian Vincent pursuant to rule 343 IAC 4.33. IT IS FURTHER ORDERED that Brian Vincent file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. IT IS FURTHER ORDERED that Brian Vincent file a first report of injury with this agency within thirty (30) days of the filing of this decision pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Page 5 Copies To: Mr. Joseph J. Bitter Attorney at Law 5th & Locust Dubuque, Iowa 52001 Brian's Standard Mr. Brian J. Vincent 3205 Asbury Dubuque, Iowa 52001 CERTIFIED AND REGULAR MAIL 5-1801; 5-2501; 2901 3002 Filed February 25, 1991 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : ROBIN RAY PICKEL, : : Claimant, : File No. 933555 : vs. : A R B I T R A T I O N : BRIAN'S STANDARD, : D E C I S I O N BRIAN J. VINCENT, : : Employer, : Defendant. : ____________________________________________________________ 2901 Where apparently uninsured employer failed to appear or defend in the case, the employer was found in default at time of hearing. 5-1801; 5-2501 Claimant, with moderate burn injuries and no evidence of permanency, awarded four and five-sevenths weeks temporary total disability and also awarded the full amount of the medical expenses incurred in treating the injury. 3002 For use in the benefit schedule, gross weekly earnings are rounded up to the higher dollar whenever the actual earnings end with $_.50. Page 1 before the iowa industrial commissioner ____________________________________________________________ : FRAN SNYDER, : : Claimant, : File No. 933564 : vs. : A R B I T R A T I O N : CITY OF SIOUX CITY, IOWA, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ statement of the case Claimant Fran Snyder seeks benefits under the Iowa Workers' Compensation Act upon her petition in arbitration against self-insured defendant employer City of Sioux City ("Sioux City") based on a back injury sustained in the course of employment on July 30, 1987. The cause came on for hearing in Sioux City, Iowa, on April 27, 1992. The record consists of the testimony of claimant, Ronald Snyder, James Dawdy and Lynne Bormann and claimant's exhibits 1 through 73, inclusive. Defendant's exhibit A was offered, but excluded upon objection. issues The parties have stipulated that claimant sustained an injury arising out of and in the course of her employment on July 30, 1987, that the injury caused both temporary and permanent disability, to claimant's marital status and entitlement to exemptions, and that 246 weeks of benefits had been voluntarily paid prior to hearing. Issues presented for resolution include: 1. The extent of temporary and/or permanent disability, under the odd-lot theory of permanent total disability or otherwise; 2. The rate of compensation; and, 3. Entitlement to medical treatment or evaluation benefits under Iowa Code sections 85.27 or 85.39, respectively. findings of fact The undersigned deputy industrial commissioner finds: Fran Snyder, 45 years of age at hearing, is a 1964 high school graduate. She was an average student and has no post-high school education. Following high school, claimant worked as a sales clerk, a file clerk, and, since February Page 2 20, 1968, has been employed by Sioux City. She began as a clerk I and was an administrative secretary II when she was injured. The latter job was quite responsible and included supervisory duties. Much of the work had to be done sitting at a desk. Claimant's evaluations during her many years of service have been uniformly good to excellent. On July 30, 1987, claimant earned a biweekly salary equal to $400.43 per week following a raise on June 26. She was married and entitled to two exemptions per stipulation. In 1983, claimant sustained an injury causing a disc herniation at L4-L5 and probable bulging disc at L5-S1. On April 4, 1983, she underwent chemonucleolysis at L4 by injection of Chymopapain. This procedure, undertaken following discograms at L4 and L5, is intended to dissolve herniated disc fragments. In claimant's case, the procedure was completely successful and she returned to work without restriction. From then until the subject injury, claimant lost no time from work due to her back, experienced no back pain and sought no medical treatment relating to the back. The 1983 injury was not employment-related. The work injury occurred on July 30, 1987, when claimant slipped and fell while carrying a stack of papers going up stairs. Ms. Snyder fell on her left side and slid down several steps. Embarrassed, she did not particularly notice severe pain at once, and continued working until normal quitting time. However, pain gradually intensified, becoming severe by that night, and even more so by the following morning. Thus began what has proven to be a long and unusually extensive course of medical treatment, including multiple myelograms, surgical procedures, steroid epidural injections and nerve root blocks. On September 9, 1987, claimant underwent a left-sided L4-5 hemilaminectomy with discectomy at the hands of Kevin J. Liudahl, M.D. Preoperative diagnosis was of herniated L4-5 nucleus pulposis, left, and postoperative diagnosis was the same, but with large extruded fragment. On June 12, 1989, claimant underwent a reexploration of the interspace at L4-5 with decompression of L5 nerve root and repeat discectomy for recurrent herniation at the hands of Quentin J. Durward, M.D. Unfortunately, neither of these procedures alleviated claimant's constant and throbbing pain. It is this pain--intractable pain--that constitutes the central fact of this litigation. On December 12, 1989, claimant underwent a left L5 sensory rhizotomy. This extreme procedure severs the nerve root, resulting in irrevocable sensory loss. As Dr. Durward pointed out in his surgical notes, Ms. Snyder was informed before surgery that she had only a 50/50 chance of long-term pain relief. Unfortunately, the gamble failed. Claimant is left with a pattern of numbness down the outside of the left Page 3 leg and top of the foot, but no relief. Extensive efforts at physical rehabilitation and pain control have been attempted unsuccessfully. Claimant was at one time addicted to narcotic pain medication, but has successfully weaned herself from the drug, no doubt at great distress. In January 1990, claimant made an ill-advised attempt to return to work. She was able to last only about 45 minutes each day. Her reward was a particularly mean-spirited disciplinary procedure for using the steps going out instead of the handicapped ramp, and failing to formally report absence for three days after the second attempt. This, in a long-term and loyal employee who, after being off work for two and one-half years, was forced to make the effort when defendant convinced one of Dr. Durward's associates to sign a return to work slip while Dr. Durward was temporarily out of the country. Claimant has now been reprimanded and, believe it or not, should she again try to return to work, faces a three-day suspension. City officials are indeed well-positioned to defend charges of undue leniency in their treatment of this injured worker. Claimant has not sought work since. Although she can still perform all the functions required by her job as administrative secretary, she cannot do so for long. In particular, she is able to sit at her desk only a brief time. Dr. Durward assessed an 11 percent impairment rating, but deferred restrictions to a functional capacity assessment to be performed by John Kuhnlein, D.O., who evaluated claimant in the Occupational Health Network Clinic on July 25, 1991. Dr. Kuhnlein suggested limiting lifting, pushing or pulling to approximately ten pounds at present and recommended occupational therapy for strengthening both hands. He would allow claimant to perform sitting, standing, walking and reaching to tolerance with the ability to change position as necessary, approximately every 20-30 minutes or less. He suggested a gradual return to the work place, beginning at two hours per day for approximately 2-3 weeks with increases as tolerated. He noted that claimant has significant psychological barriers to overcome, having been off work and away from her position for some four years and with great fear of reinjury. Dr. Kuhnlein further recommended that claimant be provided a fully adjustable work station in order to allow her to perform her job in a variety of positions as necessary. Copies of this report, dated August 1, 1991, were furnished to defendant. However, defendant has never offered to implement Dr. Kuhnlein's recommendations or taken action to help claimant return to work. Defendant has in fact refused to accept her back to work, except on a full-time basis. Claimant is motivated to return to her job, but finds herself unable to do so because of intractable pain. Claimant also underwent a work evaluation assessment at Marian Health Center on July 15, 1991. Summary and Page 4 recommendations were: Mrs. Snyder is a 45 yr. old, (R) handed female with a diagnosis of "residual pain" secondary to a fall at work per the client's report. She has not worked since July of 1987 and attempted to return in January of 1990 but was not successful. The biggest limiting factor for Mrs. Snyder at this time is her inability to work through her pain. Lifting was limited to 10#'s maximum with increased symptoms reported, especially when lifting the weight off the floor. When working overhead, she reported more severe aching and a heavy feeling in her (L) leg. She was unable to sit for approximately 30 mins. with constant weight shifting noted. Pushing and pulling should be performed at a maximum weight of 20#'s with the (R) arm and 15#'s with the (L) arm. The client performed a simulated typing activity, sitting for 5 min. with weight shifting noted the entire time. She stated "I can't even concentrate on my typing." Standing in one spot was also limited to approximately 10 mins. with reported symptoms. This client would need the freedom to change her postures often. The ideal job situation would not include frequent lifting, pushing or pulling, or working overhead or at lower levels. This client needs to work through her pain and take control over her symptoms so she can resume daily living and return to work. (Claimant's exhibit 48, page 3) Dr. Kuhnlein testified by deposition on February 3, 1992. He had no doubt but that claimant's pain is real to her and believed that any reluctance on her part to fully exert herself physically is due to fear of reinjury plus deconditioning as the result of long inactivity. He thought any attempt at returning claimant to work might well fail. Ms. Snyder was also seen for evaluation by John R. Walker, M.D. Dr. Walker reported on January 24, 1992, that claimant has extreme pain in the left sacroiliac joint. He believed this to be probably a chronic sprain which had never been previously recognized. He suggested an injection of local anesthetic and Cortisone and, if this tested positive, potential sacroiliac arthrodesis. Dr. Walker also referred to claimant's radiating pain down the left lower extremity as sacroarthrogenetic telalgia, or a referred pain due to sacroiliac pathology, along with residuals of chronic nerve injury and post-rhizotomy sequelae involving the left L5 nerve root. Assessing a 35 percent impairment rating to the body as a whole, Dr. Walker opined that claimant was currently unable to do any work, thus joining Dr. Durward's opinion of February 15, 1990. conclusions of law It is stipulated that claimant suffered a work injury that caused temporary and permanent disability to the body Page 5 as a whole. The extent thereof is in dispute. An injury to the body as a whole is compensated industrially. Industrial disability is a reduction in earning capacity. Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W. 899 (1935); Second Injury Fund v. Hodgins, 461 N.W.2d 454 (Iowa 1990). Claimant asserts that she is totally disabled under the "odd-lot" theory or otherwise. In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), the Iowa court formally adopted the "odd-lot doctrine." Under that doctrine a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist." Guyton, 373 N.W.2d at 105. The burden of persuasion on the issue of industrial disability always remains with the worker. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence of suitable employment shifts to the employer, however. If the employer fails to produce such evidence and if the trier of fact finds the worker does fall in the odd-lot category, the worker is entitled to a finding of total disability. Guyton, 373 N.W.2d at 106. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of evidence in determining whether the worker's burden of persuasion has been carried, and only in an exceptional case would evidence be sufficiently strong as to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. Under current agency precedent, claimant has not made a prima facie case of establishing that she is an odd-lot employee, because she has not made a diligent search for employment in her area of residence. Emshoff v. Petroleum Transp. Services, Inc., File No. 753723 (App. Decn., March 21, 1987); Hingtgen v. Goodmann, File No. 737771 (App. Decn., September 30, 1988). She is too disabled to be "odd-lot." However, claimant cannot return to work. By education and work experience, she is suited for clerical work, but is severely limited as a competitive employee by her medical restrictions. These include a 10-pound lifting restriction and the ability to change position at will. Dr. Liudahl suggested special accommodations, consisting of a fully adjustable work station and a very gradual return to work. If Sioux City, claimant's employer for two decades and with great incentive to return claimant to work (to show lessened industrial disability) is unable or unwilling to make those accommodations, what employer will? Altogether apart from those restrictions, claimant is unable to work because of severe intractable pain. Drs. Durward and Walker have so opined. Page 6 Pain itself, of course, is experienced subjectively. This agency has frequently viewed self-imposed restrictions due to pain with suspicion where they exceed and are greatly disproportionate to medically imposed restrictions. However, in this case there is convincing proof of claimant's perceived pain: She has proven herself willing to permanently forfeit sensation in the L5 dermatome, gambling against only a 50/50 chance of pain relief. It is inconceivable that this claimant would have done so except out of desperation and unbearable pain. The medical history and claimant's demeanor absolutely convince the undersigned that Fran Snyder is now and for the foreseeable future unable to return to her work because she experiences a disabling degree of pain. This constitutes permanent and total disability. Even though it is possible that claimant may one day find it possible to withstand that pain, through procedures advised by Dr. Walker or otherwise (this treatment should be provided, should claimant so desire), it is noted that the concept of permanent, total disability does not mean forever or embrace the idea of absolute perpetuity; it means for an indefinite or undeterminable period. Wallace v. Brotherhood, 230 Iowa 1127, 300 N.W. 322 (1941). Accordingly, it is held that claimant is entitled to benefits from the date of injury and during such time as she remains permanently and totally disabled. The parties also dispute the calculation of claimant's rate of compensation. Pursuant to Iowa Code section 85.36(2), "weekly earnings" in the case of an employee who is paid biweekly, are one-half of the biweekly gross earnings. One-half of claimant's biweekly gross earnings on the date of injury equals $400.43. It is stipulated that claimant was married and entitled to two exemptions on July 30, 1987. The Guide to Iowa Workers' Compensation Claim Handling published by this office and effective July 1, 1987, shows that an individual so situated is entitled to a compensation rate of $251.90 per week. Claimant also seeks compensation for the report of Dr. Walker. Dr. Walker's report was for evaluation and is controlled by Iowa Code section 85.39, not Iowa Code section 85.27. Section 85.39 was not preserved as an issue on the hearing assignment order filed September 10, 1991. Therefore, the undersigned lacks jurisdiction to make a determination under that section. However, $150.00 of Dr. Walker's fee is assessed as costs under Iowa Code section 622.721. order THEREFORE, IT IS ORDERED: Defendant shall pay unto claimant permanent total disability benefits at the rate of two hundred fifty-one and 90/100 dollars ($251.90) per week from July 30, 1987, and continuing during such time as she remains permanently and totally disabled. Page 7 Defendant shall have credit for all voluntary payments. All accrued, unpaid weekly benefits shall be paid in a lump sum together with statutory interest pursuant to Iowa Code section 85.30. Costs of this action are assessed to defendant pursuant to rule 343 IAC 4.33. Defendant shall file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1992. ______________________________ DAVID RASEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Charles T. Patterson Attorney at Law 200 Home Federal Building P.O. Box 3086 Sioux City, Iowa 51102 Mr. James L. Abshier City Attorney Mr. Timothy A. Scherle Assistant City Attorney 310 City Hall P.O. Box 447 Sioux City, Iowa 51102 1804; 4100 Filed May 15, 1992 DAVID RASEY before the iowa industrial commissioner ____________________________________________________________ : FRAN SNYDER, : : Claimant, : File No. 933564 : vs. : A R B I T R A T I O N : CITY OF SIOUX CITY, IOWA, : D E C I S I O N : Employer, : Self-Insured, : Defendant. : ____________________________________________________________ 1804 Claimant proved permanent total disability due to pain and medical restrictions following multiple failed back surgeries. Although pain is subjective in nature, the extent to which claimant suffers was demonstrated by her willingness to undergo sensory rhizotomy. This procedure entailed permanent loss of sensation in the L5 dermatome against only a 50/50 chance of pain relief. The procedure failed. 4100 Under current agency precedent, permanently and totally disabled claimant was not "odd-lot," since she was precluded by pain and medical advice from conducting a diligent search for employment. 5-2909 Filed January 4, 1994 Bernard J. O'Malley BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ FRAN SNYDER, File No. 933564 Claimant, M E M O R A N D U M O F vs. D E C I S I O N CITY OF SIOUX CITY, O N Employer, Self-Insured, E X P E D I T E D Defendant. H E A R I N G (343 IAC 4.44) ____________________________________________________________ 5-2902 A partial commutation only was granted to pay attorney fees and any costs. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ FRAN SNYDER, File No. 933564 Claimant, M E M O R A N D U M O F vs. D E C I S I O N CITY OF SIOUX CITY, O N Employer, Self-Insured, E X P E D I T E D Defendant. H E A R I N G (343 IAC 4.44) ____________________________________________________________ An original notice and petition was filed on August 18, 1993,under rule 343 IAC 4.44. January 4, 1994 was the date set for a telephonic hearing. All parties were given proper notice. The claimant in this expedited proceeding is seeking benefits under the provision of rule 343 IAC 4.44. Claimant wants a commutation of benefits. There is no dispute that an injury arose out of and in the course of claimant's employment on July 30, 1987. The entire hearing was recorded via an audio tape. The detailed decision was dictated into the record on the day of the hearing and will not be reproduced in typewritten form unless there is an appeal by the parties at which time procedures under the Administrative Code would be followed. Any rights of appeal will run from the date of the decision dictated into the record, namely, January 4, 1994. This memorandum is solely for the purposes of the agency file. The deputy ordered that a full commutation of benefits is not granted, but a partial commutation to pay attorney fees and any costs is granted. Signed and filed this ____ day of January, 1994. Page 2 -------------------------------- BERNARD J. O'MALLEY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Charles L. Patterson Attoreny at Law 701 Pierce St Ste 200 P O Box 3086 Sioux City IA 51102 Mr Timothy A Scherle Attorney at Law 518 Orpheum Bldg Sioux City IA 51101 Page 1 before the iowa industrial commissioner ____________________________________________________________ : DENNIS KOOKER, : : Claimant, : : vs. : : File No. 933568 MIDWEST VIKING, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ statement of the case This is a proceeding in arbitration brought by the claimant, Dennis Kooker, against his employer, Midwest Viking, Inc., and its insurance carrier, Aetna Casualty & Surety Company, to recover benefits under the Iowa Workers' Compensation Act as the result of an injury of August 17, 1989. This matter came on for hearing before the undersigned deputy industrial commissioner at Des Moines, Iowa, on August 15, 1991. A first report of injury has been filed. The record in this case consists of joint exhibits I through VI; claimant's exhibits A through C; and, defendants' exhibits 1 and 2. Defendants' proposed exhibit 3 is a transcribed statement of Linda Taft, an individual with whom claimant had had a romantic liaison in the past and an individual who stated she would be more than happy to take a lie detector test or anything the insurance carrier would want her to do because, "he took me for a bunch of money at a time when I could least afford it." Ms. Taft's statement is not the type of evidence on which reasonably prudent persons are accustomed to rely for the conduct of their serious affairs. See Iowa Code section 17A.14(1); see also King v. Colonial Baking Co., File No. 863824 (Arb. September 26, 1990). The exhibit, therefore, lacks credibility and is excluded from the evidence. The record also consists of the testimony of claimant, of Janette H. Whittle, and of Jan Renee Mier. issues Pursuant to the hearing assignment order, the prehearing report and the oral stipulation of the parties at hearing, the parties have stipulated that claimant did Page 2 receive an injury arising out of and in the course of his employment on August 17, 1989 and that that injury bore a causal relationship to a period of temporary total or healing period disability. The parties further agreed that defendants have paid 51 weeks of benefits at a rate of $363.72. Issues remaining to be decided are: 1. Whether a causal relationship exists between claimant's injury and claimed permanent partial disability; 2. The nature and extent of any benefit entitlement; 3. Whether claimant is entitled to payment of costs related to chiropractic care; 4. Whether a penalty shall be imposed upon defendants for unreasonable denial or delay in commencement of benefits; and, 5. Claimant's appropriate rate of weekly compensation. findings of fact The deputy, having heard the testimony and considered the evidence, finds: Claimant was born September 2, 1950. He completed eleventh grade and has not received a GED. He has been employed as a truck driver since age 18. Claimant received an injury which arose out of and in the course of his employment on August 17, 1989 when he rolled the semi-trailer truck he was driving for his employer. Claimant was medically evacuated and hospitalized immediately subsequent to that accident. He was released from the hospital less than 12 hours later. He subsequently was able to drive his damaged truck to the employer's place of business in Des Moines. Claimant then returned to his own home in Buena Vista, Colorado, to recuperate. Claimant married Verna Kooker in 1974 and was legally married to Verna on August 17, 1989. The couple had been informally separated since 1983 with claimant living in Colorado and Verna living in Missouri, however. The couple had two minor children on August 17, 1989, which children were living with Verna in Missouri. Claimant was not paying child support on the date of injury and had no legal court ordered obligation to do so on the date of the injury. It is found that claimant's wife and two minor children were not actually dependent upon claimant on August 17, 1989. It is found that the maximum exemptions claimant could have claimed on August 17, 1989 was one married person. Claimant began his employment with Midwest Viking in January 1989. He was paid $.18 per mile plus apparently $35.00 for each load loaded or unloaded in California and $20.00 for each load loaded or unloaded in any other jurisdiction. Claimant received two separate checks: one reflecting payment of $.12 per mile off the odometer and the Page 3 other reflecting payment of $.06 per mile off the odometer. The $.06 per mile payment was designated as a per diem. Payroll taxes, FICA and unemployment compensation tax were withheld from the $.12 per mile payment, but not from the $.06 per mile payment. The $.06 per mile payment was paid solely on mileage driven and was not based on actual meal expenses or other actual expenses. Claimant was reimbursed for any truck expenses that he paid out of pocket. Claimant's employer explained the payment system, including the amount designated as wages and the amount designated as expense allowance or per diem at claimant's hire. Claimant understood that the per diem represented an amount for meals. It is expressly found that the per diem amount represented an expense allowance excluded from gross earnings under section 85.61(3). Claimant's injury occurred on August 17, 1989. Therefore, he did not work the full week of August 18, 1989. Claimant was paid on a weekly basis, except for those weeks when claimant did not submit his mileage and other paperwork on a timely basis. In those weeks, claimant received that week's salary in the immediately subsequent week. Claimant did not work any short weeks or vacation weeks or holiday weeks in the 13 weeks immediately preceding August 17, 1989. Claimant apparently did not submit paperwork for the week of August 11, 1989, the last week immediately preceding his August 17, 1989 injury. Claimant apparently received compensation for that week and the week in which he was injured on August 18, 1989. As claimant did not work the full week of August 18, 1989, salary received on August 18, 1989 is apportioned 60 percent to the week of August 11, 1989 and 40 percent to the week of August 18, 1989. Sixty percent of $942.12 is $565.27. Claimant's total earnings from the 13 full weeks immediately preceding August 17, 1989 were $5,989.87. James A. Clark II, M.D., performed an x-ray consultation relative to claimant on August 17, 1989. Dr. Clark interpreted x-rays of the cervical spine as showing degenerative disc disease at C5-6 with reduction of the intervertebral disc space height and formation of ventral and dorsal osteophytes. On returning to his home in Buena Vista, Colorado, claimant sought treatment with William L. Burson, D.C. Dr. Burson referred claimant to William R. Seybold, M.D. On October 2, 1989, claimant presented to Dr. Seybold with persistent cervical pain. Dr. Seybold thought that claimant's upper extremity paresthesis related primarily to post-traumatic carpal tunnel syndrome. An EMG of October 2, 1989, had been positive for Charcot-Marie-Tooth disease, a hereditary neuropathology. Dr. Seybold stated, and it is so found, that Charcot-Marie-Tooth disease can make nerves more susceptible to traumatic insult. William N. Needell, M.D., interpreted an MRI of October 6, 1989, as showing a disc herniation at C5-6 with bilateral neural foraminal encroachment on the right resulting from either a lateral disc extension or bony hypertrophy. Dr. Needell interpreted an MRI of the lower back of October 24, 1989, as showing a right-sided disc bulge or mild herniation Page 4 at L5-S1 with possible right S1 nerve root involvement and disc desiccation of the L5-S1 disc. The insurer authorized Ronald E. Walker, M.D., to treat claimant. On November 16, 1989, Dr. Walker related claimant had a number of problems, most of which were secondary to his underlying Charcot-Marie-Tooth disease involving the lower extremities and underlying degenerative disc disease involving especially the cervical spine. The doctor's primary diagnosis was of cervical strain with low back pain secondary to myofascitis that had aggravated the underlying changes in the Charcot-Marie-Tooth disease as a result of a history of acute back problems due to injury. The doctor opined that claimant was not able to drive an 18-wheeler at that time and that maximum medical improvement would be expected in 5-6 months, assuming that no new objective findings developed. Dr. Walker saw claimant on December 4, 1989, where he noted that claimant's back was better overall, but "made worse recently when he carried some firewood." Subsequent to receiving Dr. Walker's note, the insurer on January 17, 1990, terminated claimant's benefits effective February 15, 1990. Claimant again saw Dr. Walker on January 25, 1990. Claimant stated to the doctor on that date that claimant had not indicated he was carrying firewood on December 4, 1989. As the doctor's notes and recollection differed, the doctor was disinclined to change his note of December 4, 1989. The doctor did state, however, on January 25, 1990, that the doctor did not think that any incident of carrying firewood was the cause of claimant's then-present back pain and that the doctor thought the symptoms were causally related to claimant's initial injury. The doctor released claimant to limited duty "office type work" without lifting of greater than 10-15 pounds. Claimant had no work experience in that area. Office work is not work substantially similar to that which claimant performed when injured. The employer did not recommence benefits until July 18, 1990, when Janette H. Whittle, workers' compensation processor for the insurer, advised claimant's counsel that the insurer would pay claimant permanent partial disability benefits based on a permanency of five percent of the body as a whole until the insurer received a rating from Dr. Walker with payments to commence immediately. Claimant did not keep an appointment with Dr. Walker scheduled for March 8, 1990. Claimant explained that his attorney advised him not to keep the appointment and that claimant himself did not trust Dr. Walker subsequent to the firewood incident. On May 1, 1990, Dr. Walker stated that he assumed claimant reached maximum medical improvement on March 8, 1990, as that was the date that claimant failed to keep the appointment and as the doctor assumed claimant could return to original employment as of that date. Dr. Walker referred claimant to D. James Sceats, Jr., M.D., who saw claimant on December 11, 1989. Dr. Sceats suggested that claimant continue chiropractic manipulation with Dr. Burson if claimant obtained relief from such. It Page 5 is expressly found that, in continuing to seek care from Dr. Burson, claimant was following the advice of a medical specialist to whom his authorized physician had referred claimant and that, therefore, the chiropractic care with Dr. Burson represents care received under the direction and advice of an authorized physician. On June 13, 1990, Dr. Sceats opined that claimant's neurologic deficits relate to his Charcot-Marie-Tooth disease predominantly and that claimant had no specific neurologic deficit related to his injury. On October 29, 1990, Dr. Sceats stated that work hardening would represent the most accurate means to determine if claimant had yet reached maximum medical improvement. Dr. Sceats reported that claimant may or may not be at maximum medical improvement as of that date. He advised work hardening with a repeat functional capacity evaluation subsequent to work hardening. Claimant underwent functional capacity evaluation and work hardening at the Colorado Centers for Occupational Rehabilitation. Center findings were that claimant could lift ten pounds infrequently and five pounds repetitively; that claimant could sit for up to two hours at a time and up to four hours intermittently; that claimant could stand and walk for up to two hours at a time and up to four hours intermittently; that claimant could only poorly tolerate on an occasional basis bending, stooping, kneeling, and crouching; that claimant could perform pushing and pulling within a light range in an industrial setting; that claimant could not climb; and, that reaching produced neck and low back pain. Claimant was found to have below average upper extremity strength for an American male in his age group. Claimant attended work hardening for approximately three or four weeks beginning November 5, 1990, and ending approximately November 30, 1990. Three to four further weeks had been recommended at that time. Claimant stated he quit work hardening because he could not afford to continue it. Claimant was not then receiving workers' compensation benefits and had received no medical mileage reimbursement. Claimant apparently did not seek medical mileage for his travel to the work hardening program of his own accord. Overall, claimant has incurred 1,959 miles of reimbursable medical mileage. Claimant acknowledged having received chiropractic adjustments for back pain on five or six occasions prior to his injury. James J. O'Donnell, M.D., examined claimant on January 29, 1991. His impression was of residuals of multiple trauma in the nature of a soft tissue injury to the entire spine. He stated that claimant was then at maximum medical improvement with no further active treatments advised, but work hardening recommended. Jerome G. Bashara, M.D., evaluated claimant on May 31, 1991. Dr. Bashara diagnosed a herniated disc at L5-S1 secondary to an August 1989 accident. He opined that Page 6 claimant had a five percent body as a whole permanent partial impairment and imposed restrictions on excessive or repetitive bending, stooping or twisting of the low back and on lifting of above 20 pounds. Drs. Walker, Seybold and Sceats had the most frequent and ongoing contact with claimant. Their opinions as to his condition and the causal relationship to his injury are therefore given greater weight. It is expressly found that claimant has a cervical strain with low back pain secondary to myofascitis that has aggravated underlying changes in his Charcot-Marie-Tooth disease as a result of acute low back problems related to his August 17, 1989 injury. It is also expressly found that claimant has post-traumatic carpal tunnel syndrome related to his August 17, 1989 injury, which injury was a traumatic insult [to the nerves] to which claimant's Charcot-Marie-Tooth disease made him more susceptible. Claimant obtained a truck driving job in February 1991 which he held through early May 1991. Claimant indicated that he performed the job as well as he could and that his hours were about the same as his hours at Midwest Viking. Claimant left that job to take his present job with Sutton Trucking. Claimant drives a tanker truck for Sutton. He characterized this as rougher riding than over-the-road semi driving. Claimant does no tarping and has limited loading and unloading responsibilities with tanker driving. He was working 12- and 14-hour days in May and June 1991, logging from 200-400 miles per day. Claimant denied that he receives greater income from the Sutton job than from his job at Midwest Viking. Claimant indicated that the Sutton job is more seasonal in nature than his Midwest Viking job. Claimant did not advise his current employer of his back problems and believed that so doing would jeopardize his continued employment. Claimant currently has back problems which start around noon and get progressively worse throughout the day. Claimant characterized the Sutton job as his last resort at trucking because he "has to get home every night." Claimant acknowledged having had a personal relationship with Linda Taft and that he was living with Ms. Taft at the time of his injury. conclusions of law Our first issue is whether claimant has established a casual connection between his work injury and his alleged disabilities. The claimant has the burden of proving by a preponderance of the evidence that the injury is a proximate cause of the disability on which the claim is based. A cause is proximate if it is a substantial factor in bringing about the result; it need not be the only cause. A preponderance of the evidence exists when the causal connection is probable rather than merely possible. Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 Page 7 (Iowa 1974). The question of causal connection is essentially within the domain of expert testimony. The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection between the injury and the disability. The weight to be given to any expert opinion is determined by the finder of fact and may be affected by the accuracy of the facts relied upon by the expert as well as other surrounding circumstances. The expert opinion may be accepted or rejected, in whole or in part. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756 (1956). If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961). As noted in the above Findings of Fact, the medical evidence demonstrates that claimant's injury of August 17, 1989, aggravated his underlying Charcot-Marie-Tooth disease and thereby produced pain in the cervical spine and low back as well as post-traumatic carpal tunnel syndrome. Claimant has established a causal relationship between his injury and those claimed conditions. No medical evidence supports claimant's claim at hearing that he has headaches or difficulty with memory and thinking on account of his work injury. Claimant has not established the requisite causal connection between the injury and those claimed conditions. Our next concern is the nature and extent of claimant's disability. We first consider whether claimant is entitled to additional healing period benefits. Section 85.34(1) provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) the worker has returned to work; (2) the worker is medically capable of returning to substantially similar employment; or (3) the worker has achieved maximum medical recovery. The healing period can be considered the period during which there is a reasonable expectation of improvement of the disabling condition. See Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa Ct. App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Defendants terminated claimant's temporary benefits effective February 15, 1990. On January 25, 1990, Dr. Page 8 Walker released claimant to light-duty office work. Light-duty office work is not work substantially similar to the work claimant was performing at the time of his injury. Dr. Walker did not then indicate that claimant was at maximum medical improvement. Dr. Walker's opinion that claimant was at maximum medical improvement on May 8, 1990, was mere surmise based on claimant's failure to appear for an appointment previously scheduled for that date. Hence, that date also is not a rational point at which it can be determined that claimant reached maximum medical improvement. On October 29, 1990, Dr. Sceats indicated that claimant may or may not have been at maximum medical improvement as of that date, but that such could only be determined after claimant underwent a work hardening program and further functional capacity evaluation. Claimant then attended a work hardening program from November 5, 1990, to approximately November 30, 1990, when he voluntarily terminated with the program. Claimant testified he did so as he could no longer continue to pay the costs of attending the program. Defendants were not paying claimant weekly compensation benefits while he was in attendance; defendants also were not reimbursing claimant his mileage expenses. Claimant, on the other hand, apparently did not seek reimbursement prior to his voluntary termination. Hence, claimant did not take even the minimum appropriate steps which might have assisted him in staying in the program. His voluntary termination of that program suggests that claimant was, at that time, at a place where further medical improvement could not be achieved without claimant's full cooperation. For that reason, claimant is determined to have reached maximum medical improvement on November 30, 1990. Claimant's healing period runs from claimant's date of injury through November 30, 1990. We consider claimant's entitlement to permanent partial disability benefits. Since claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Ry. Co., 219 Iowa 587, 258 N.W.2d 899 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience, motivation, loss of earnings, severity and situs of the injury, work restrictions, inability to engage in employment for which the employee is fitted and the employer's offer of work or failure to so offer. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 Page 9 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. The only evidence as to permanent partial impairment is Dr. Bashara's rating of five percent permanent partial impairment for a herniated lumbar disc which the doctor related to claimant's 1989 injury. The record as a whole does not support Dr. Bashara's finding that claimant's herniated lumbar disc, if any, wholly relates to the injury. Hence, the doctor's permanent partial impairment rating is rejected. The record as a whole does support that claimant has some mild physical impairment related to his cervical spine and low back pain and his post-traumatic carpal tunnel syndrome. Likewise, claimant is severely restricted on lifting, being at best permitted to lift 20 pounds. Claimant is restricted from bending, stooping, kneeling, crouching, pushing, pulling and reaching as well as climbing. He can sit and stand for only intermittent periods. Claimant is currently working. His current trucking job permits him to be home each evening and that apparently is a strong factor in his ability to continue work. Claimant did not tell his current employer of his physical condition and fears that disclosure of such could well endanger his job. Claimant is unable to return to long-haul trucking. Claimant has limited education and little work experience outside of the trucking industry. While claimant appears of average intelligence, his educational limitations when combined with his age might well severely curtail any attempts at rehabilitation into more sedentary work. All of the above suggests that claimant has sustained quite a substantial loss of earning capacity. Such is found to represent an industrial disability of 35 percent of the body as a whole. We next consider the question of payment of Dr. Burson's costs. Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial Report of the Industrial Commissioner 164 (Review-reopen 1979) (aff'd by Indus. Comm'r), states: Section 85.27 . . . requires an employer to provide the reasonable care necessary to treat the injury. It follows then that when such a designated physician sees fit to refer a patient to another physician, he acts as the defendant-employer's agent, and permission for such referral from the defendants is not necessary. In this case, Dr. Sceats, to whom claimant's authorized physician, Dr. Walker, referred claimant, advised claimant to continue seeing Dr. Burson for chiropractic manipulation if claimant continued to receive benefit from such Page 10 manipulation. While Dr. Burson is not a medical doctor, Dr. Sceats' referral to him is not substantially different from a referral to a physical therapist or any other practitioner or healing arts other than a medical doctor. Claimant acted reasonably and within the directives of an authorized physician in continuing treatment with Dr. Burson. Defendants are liable for the costs of claimant's chiropractic care with Dr. Burson. Defendants are also liable for claimant's medical mileage expenses with Dr. Burson and with other care providers. We note the inconsistency in defendants' payment for medical care with other providers, while failing to reimburse for medical mileage as the law requires. We consider the question of claimant's rate of compensation. Iowa Code section 85.36(6) states: In the case of an employee who is paid on a daily, or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury. Iowa Code sections 85.61(3) and (6)(b) state: 3. "Gross earnings" means recurring payments by employer to the employee for employment, before any authorized 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 the employer's contribution for welfare benefits. . . . . 6. "Payroll taxes" means an amount, determined by tables adopted by the industrial commissioner pursuant to chapter 17A, equal to the sum of the following: . . . . b. An amount equal to the amount which would be withheld pursuant to withholding tables in effect on July 1 preceding the injury under chapter 422, and any rules pursuant thereto, as though the employee had elected to claim the maximum number of exemptions for actual dependency, blindness and old age to which the employee is entitled on the date on which the employee was injured. As noted above, claimant's per diem amounts represented an expense allowance and are excluded from gross earnings. The maximum number of exemptions to which claimant was Page 11 entitled when injured was that of a married person entitled to one exemption. Claimant's total gross earnings in the 13 full weeks immediately preceding August 17, 1989 were $5,989.87. Such represents a gross weekly wage of $460.76. Under the rate table in effect on August 17, 1989, claimant's weekly rate of compensation then is $280.42. We consider the penalty question. Section 86.13 permits 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). Defendants terminated claimant's temporary total or healing period benefit effective February 15, 1990 after Dr. Walker made a reference to claimant's back pain worsening subsequent to carrying firewood. Defendants terminated on the guise that the medical note indicated an aggravation on account of carrying firewood. Defendants' authorized physician, in his January 25, 1990 medical note, while not retracting the statement that claimant had stated claimant carried firewood, clearly stated that claimant's then-current symptomatology related to the underlying work injury. Defendants did not reinstate benefits. While the doctor had also released claimant for light-duty work as of that date, it is clear that the doctor's light-duty release did not permit claimant to do work substantially similar to the work he had been doing when injured. It cannot be said that defendant's choice to terminate benefits effective February 15, 1990 and then not reinstate them after receipt of Dr. Walker's medical note of January 25, 1990, was reasonable. Given Dr. Walker's express statement in his note of January 25, 1990, claimant's entitlement to temporary total disability or healing period benefits at that time was not fairly debatable. Defendants did not recommence benefits until July 18, 1990 when they recommenced benefits which they characterized as permanent partial disability benefits. As noted above, any recommenced benefits received through November 30, 1990 are properly characterized as healing period benefits. Claimant is entitled to an award of additional benefits for the period from February 15, 1990 through July 18, 1990, which award of additional benefits shall be in the amount of 25 percent of benefits to which claimant was entitled in that period. order THEREFORE, IT IS ORDERED: Defendants pay claimant healing period benefits at the rate of two hundred eighty and 42/100 dollars ($280.42) per Page 12 week from his date of injury through November 30, 1990. Defendants pay claimant permanent partial disability benefits for one hundred seventy-five (175) weeks at the rate of two hundred eighty and 42/100 dollars ($280.42) per week with those payments to commence on December 1, 1990. Defendants pay claimant twenty-five percent (25%) additional benefits for benefits denied claimant from February 15, 1990 through July 18, 1990. Defendants pay claimant costs related to claimant's chiropractic care with Dr. Burson in the total amount of two thousand nine hundred thirty-seven and 53/100 dollars ($2,937.53). Defendants pay claimant mileage expenses totalling one thousand nine hundred fifty-nine (1,959) miles at the rate of twenty-one cents ($.21) per mile. Defendants pay accrued amounts in a lump sum. Defendants receive credit for benefits previously paid. Defendants pay interest pursuant to section 85.30, as amended. Defendants pay costs pursuant to rule 343 IAC 4.33. Defendants file claim activity reports as requested by the agency pursuant to rule 343 IAC 3.1. Signed and filed this ______ day of ____________, 1991. ______________________________ HELENJEAN WALLESER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Richard G. Book Attorney at Law 500 Liberty Building Des Moines, Iowa 50309 Mr. Timothy C. Hogan Attorney at Law 4th Floor, Equitable Building Des Moines, Iowa 50309 Page 1 5-1108; 1802; 5-1803 2500; 3001; 3002; 4000.2 Filed November 1, 1991 HELENJEAN WALLESER before the iowa industrial commissioner ____________________________________________________________ : DENNIS KOOKER, : : Claimant, : : vs. : : File No. 933568 MIDWEST VIKING, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : AETNA CASUALTY & SURETY : COMPANY, : : Insurance Carrier, : Defendants. : ____________________________________________________________ 5-1108; 5-1803 Forty-year-old male claimant, whose only work experience was as a trucker and whose injury precluded long-haul trucking as well as heavy lifting and who had completed eleventh grade, awarded 35 percent permanent partial disability. 1802 Healing period ran until claimant terminated recommended work hardening. While claimant testified he could not afford to continue program, claimant did not seek mileage reimbursement to permit his attendance. 3001; 3002 Per diem amount, expressly designated as meal expense and so explained to claimant, was an expense allowance and not part of gross weekly wage. Married claimant, who was informally separated from his wife and two minor children on date of injury and who paid no support and had no court ordered obligation to pay support, was married entitled to one exemption on date of injury. 4000.2 Penalty of 25 percent of benefits wrongfully terminated awarded where defendants terminated benefits as a result of medical note reporting nonwork aggravation of claimant's condition and did not reinstate them after doctor expressly Page 2 related claimant's symptoms to work injury and then released claimant for light duty for which claimant was not qualified and which was not work substantially similar to claimant's work on date of injury. 2500 Where physician to whom authorized physician had referred claimant advised claimant to continue chiropractic manipulation if claimant received benefit from chiropractic manipulation, claimant was entitled to payment of costs of chiropractic care. Page 1 before the iowa industrial commissioner ____________________________________________________________ : HERBERT BEAMON, JR., : : Claimant, : : vs. : : File Nos. 933573 & 933574 LENNOX INDUSTRIES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATMENT OF THE CASE This is a proceeding in arbitration brought by Herbert Beamon, Jr., as a result of injuries to his back, neck, right elbow, right shoulder, left leg and groin which occurred on November 21, 1989 and November 29, 1989. Defendants denied compensability for the injuries, paid no weekly benefits and paid some medical expenses. The case was heard and fully submitted at Des Moines, Iowa, on March 22, 1991. The record in the proceeding consists of joint exhibits 1 through 35 and testimony from claimant. issues The issues presented for determination in both file numbers are as follows: 1. Arising out of and in the course of employment; 2. Casual connection to temporary disability and the extent of temporary disability; 3. Causal connection to permanent disability and the extent of industrial disability; 4. Commencement date for permanent partial disability; 5. Iowa Code section 85.27 medical benefits; and 6. Taxation of costs. findings of fact Having considered all the evidence received the following findings of fact are made: Page 2 Claimant, now age 34, began work for employer Lennox Industries in August 1986 as a production worker. On November 21, 1989, claimant worked in employer's factory as an assemblyman. Claimant testified that on November 21, 1989, he stepped off a platform near his work area and injured his low back. Claimant described his injury as lumbar strain. Claimant stated that he completed the day of work for employer and did not immediately seek medical treatment. Claimant testified that he first sought medical treatment for the low back pain on November 27, 1989, from Lloyd Thurston, D.O. On November 29, 1989, claimant stated that while at work for employer he fell on his right elbow and right low back when crossing some rails. Claimant stated that after 20 to 25 minutes, he felt pain in his groin and went to employer's nurse's station for treatment. Claimant saw Dr. Thurston for treatment and was released to work light duty (exhibit 5). Employer offered claimant light duty work and no lost time resulted at that time. The diagnosis by Dr. Thurston was acute lumbar paraspinous muscle strain. Claimant received physical therapy for a period of time and was returned to employment without work restrictions on December 12, 1989 (exhibit 8). Claimant continued working for employer until February 14, 1990, when he was discharged from employment allegedly due to an unauthorized absence. Claimant has not worked nor has he sought employment subsequent to February 14, 1990. In October 1990 claimant was severely beaten about the head and chest. He was hospitalized for about five days as a result of the incident. At the time of hearing, claimant alleged that he is unable to bend over, has pain in his neck, right elbow and left leg. Claimant also alleged that he has headaches and cannot sit for long periods of time. The first issue concerns whether claimant sustained an injury to his low back on November 21, 1989, arising out of and in the course of employment with employer. It is claimant's burden to prove by a preponderance of the evidence that the low back pain was caused by an injury of November 21, 1989. In this case it is found that claimant has failed to prove that an injury occurred November 21, 1989. First, claimant did not seek medical treatment on November 21, 1989. It is documented that claimant took off five point eight hours of time for personal business on November 21, 1989 (ex. 3). Claimant then delayed his request for treatment until November 27, 1989. It is noted that a holiday weekend occurred between the alleged injury of November 21, 1989, and the first treatment on November 27, 1989. Page 3 In summary, claimant offered insufficient evidence which links his back pain to an incident which occurred at work on November 21, 1989 (ex. 10). Claimant has failed to prove an injury on November 21, 1989, that arose out of and in the course of employment with employer and his petition in file number 933574 is dismissed. Claimant takes nothing from file number 933574. The next issue in file number 933573 concerns whether claimant sustained an injury on November 29, 1989, arising out of and in the course of employment with employer. Claimant's testimony that he slipped and fell while working for employer was essentially unchallenged. The medical records and claimant's testimony revealed that on November 29, 1989, claimant sustained an abrasion to the right upper extremity and a right shoulder strain (ex. 4). Based upon claimant's unrefuted testimony and the corroborating medical records it is found that on November 29, 1989, claimant sustained an injury to his right shoulder, back and right elbow arising out of and in the course of employment with employer. The next issue concerns claimant's entitlement to Iowa Code section 85.27 medical benefits. Claimant sought treatment from numerous medical providers. However, the only medical expenses that are appropriately compensable are those which are causally connected to treatment for the November 29, 1989 injury. In this matter, claimant began his medical treatment on November 29, 1989, and continued seeking treatment through the date of the hearing. It is obvious from the medical reports that the medical providers had difficulty relating the treatment to the November 29, 1989 injury. No one medical provider specifically found that claimant had symptoms directly caused by the injury of November 29, 1989. However, Dr. Thurston continuously restricted claimant from full duty work until December 21, 1989 (ex. 8). On that date claimant was given an unrestricted released to return to work. This release to work indicates that claimant had achieved a point where significant improvement was not expected in claimant's condition. It is also noted that on December 14, 1989, the physical therapist documented claimant's limp as much less pronounced when he wasn't aware of being observed (ex. 6). The medical evidence when considered in connection with the fact that claimant had been able to work continually until December 21, 1989, leads to the conclusion that the work injury had resolved itself by December 21, 1989. It is found that starting November 29, 1991, and continuing through December 21, 1989, claimant incurred medical expenses which were reasonable and necessary for the treatment of his November 29, 1989 injury. All medical expenses incurred for treatment of pain during that period are compensable. Subsequent to December 21, 1989, claimant incurred Iowa Page 4 Code section 85.27 expenses with numerous doctors. The various medical providers were unable to causally connect the examinations and treatment to the November 21, 1989, work injury (exs. 10, 24, 27). The medical reports for the most part revealed normal findings subsequent to December 21, 1989 (exs. 10, 11, 14, and 24). Only J.C. Schoon, D.O., found some positive symptoms (ex. 26). Dr. Schoon's opinion is rejected as he saw claimant on only one occasion long after the incident in question. Dr. Thurston's opinions and conclusions are found to be more reliable as he was claimant's family physician and was far more familiar with claimant's overall medical history. In conclusion, claimant has failed to prove by a preponderance of the evidence that the medical treatment received subsequent to December 21, 1989, was causally connected to the November 29, 1989 injury. All medical expenses incurred subsequent to December 21, 1989, are not compensable. The next issue is whether the November 29, 1989, injury is a cause of permanent disability. No medical professional opined that claimant suffered permanent impairment as a result of the November 29, 1989 injury. Dr. Thurston opined on April 30, 1990, that no permanent disability resulted from the injury (ex. 24). Dr. Thurston did impose a 30-pound permanent work restriction upon claimant in January 1990 (ex. 10). However, the work restrictions was not linked to the injury of November 29, 1989. It is found that claimant has failed to prove by a preponderance of the evidence that the November 29, 1989, injury was a cause of permanent disability. The next issue concerns claimant's entitlement to temporary disability. Claimant's entitlement to lost time benefits ends when claimant returns to work or is capable of performing work similar to that performed at the time of injury. In this matter claimant lost no time from work until his discharge in February 1990. Having already found that claimant reached his healing plateau on December 21, 1989, it follows that claimant has failed to prove that the November 19, 1989, injury is a cause of temporary disability as claimant immediately returned to work after the injury. The final issue concerns taxation of costs. Since each party prevailed in one case it follows that the parties should pay their own respective costs. Defendants are to pay for the attendance of the court reporter at the hearing of March 22, 1991. conclusions of law The injury must both arise out of and be in the course of the employment. Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the Iowa Report. See also Sister Mary Benedict v. St. Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958). Page 5 The words "out of" refer to the cause or source of the injury. Crowe, 246 Iowa 402, 68 N.W.2d 63. The words "in the course of" refer to the time and place and circumstances of the injury. McClure v. Union et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63. Claimant has failed to prove that he sustained an injury to his low back on November 21, 1989, arising out of and in the course of employment with employer. Claimant shall take nothing in file number 933574. Claimant has sustained his burden in proving that he sustained an injury to his right shoulder, back and right elbow on November 29, 1989, arising out of and in the course of employment with employer in file number 935573. The employer, for all injuries compensable under chapter 85 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 reasonable necessary transportation expenses incurred for such services. The employer has the right to choose the provider of care. Iowa Code section 85.27. "Claimant is not entitled to reimbursement for medical bills unless he shows that he paid them from his own funds." See Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890 (Iowa App. 1983). Claimant has proven entitlement to medical benefits in file number 933573 beginning November 29, 1989, and continuing through December 21, 1989. Claimant is entitled to reimbursement for such expenses only to the extent they were paid for by claimant's funds. The claimant has the burden of proving by a preponderance of the evidence that the injury of November 29, 1989, 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). Section 85.34(1), Code of Iowa, provides that healing period benefits are payable to an injured worker who has suffered permanent partial disability until (1) he has returned to work; (2) is medically capable of returning to substantially similar employment; or (3) has achieved maximum medical recovery. The industrial commissioner has recognized that healing period benefits can be interrupted or intermittent. Willis v. Lehigh Portland Cement Company, Vol. 2-1, State of Iowa Industrial Commissioner Decisions, Page 6 485 (1984). The end of the healing period occurs at the time when the physicians indicate that no further improvement is forthcoming. It is not determined by hindsight looking back to find the point at which recovery ceased. Thomas v. William Knudson & Son, Inc., 394 N.W.2d 124, 126 (Iowa App. 1984); Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa App. 1981). Claimant has failed to prove by a preponderance of the evidence that the injury of November 29, 1989, caused temporary and/or permanent disability. All costs incurred in the hearing before the deputy commissioner shall be taxed in the discretion of the deputy commissioner unless otherwise required by the rule of civil procedure governing discovery. Iowa Code section 86.40. Rule 343 IAC 4.33. The parties are to pay their own respective costs with defendants paying for the court reporter attendance. order IT IS THEREFORE, ORDERED: Claimant shall take nothing in file number 933574. Claimant's petition in file number 933574 is dismissed. In file number 933573 claimant is entitled to medical benefits related to treatment of the November 29, 1989 injury beginning November 29, 1989 and ending December 21, 1989. The parties shall pay their own costs and defendants shall pay for the attendance of the court reporter at hearing. Signed and filed this ____ day of May, 1991. ______________________________ MARLON D. MORMANN DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Thomas P. Slater Attorney at Law STE 500 Saddlery Bldg. 309 Court Ave. Des Moines, Iowa 50309 Mr. D. Brian Scieszinski Attorney at Law 801 Grand Ave STE 3700 Page 7 Des Moines, Iowa 50309 5-1100; 51402.30; 51801; 51803; 52500 Filed May 1, 1991 MARLON D. MORMANN before the iowa industrial commissioner ____________________________________________________________ : HERBERT BEAMON, JR., : : Claimant, : : vs. : : File No.933573 & 933574 LENNOX INDUSTRIES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51100; 51402.30; 51801; 51803; 52500 Claimant alleged two back injuries while working for employer. Claimant lost no work from either injury until his discharge which occurred 4 months after the injury. Claimant failed to prove first alleged injury but did prove that the second back injury. Medical benefits awarded during the period that the treating doctor found causation. No evidence of permanent disability. Doctors unable to objectively verify any injury or reason for pain. 5-1100; 51402.30; 51801; 51803; 52500 Filed May 1, 1991 MARLON D. MORMANN before the iowa industrial commissioner ____________________________________________________________ : HERBERT BEAMON, JR., : : Claimant, : : vs. : : File No.933573 & 933574 LENNOX INDUSTRIES, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : EMPLOYERS MUTUAL, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 51100; 51402.30; 51801; 51803; 52500 Claimant alleged two back injuries while working for employer. Claimant lost no work from either injury until his discharge which occurred 4 months after the injury. Claimant failed to prove first alleged injury but did prove that the second back injury. Medical benefits awarded during the period that the treating doctor found causation. No evidence of permanent disability. Doctors unable to objectively verify any injury or reason for pain.