Page 1 before the iowa industrial commissioner ____________________________________________________________ : LINDA HIERONIMUS, : : Claimant, : : vs. : : File No. 940987 K PRODUCTS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GENERAL CASUALTY COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration upon the petition of claimant, Linda Hieronimus, against her employer, K Products, Inc., and its insurance carrier, General Casualty Companies, defendants. The case was heard on October 14, 1991, in Storm Lake, Iowa. The record consists of the testimony of claimant. The record also consists of the testimonies of Gary Hieronimus, spouse of claimant, and Ken L. Vander Molen, safety and security manager for defendant-employer. Additionally, the record consists of joint exhibits A-E. issues The issues to be determined are: 1) whether there is a causal relationship between claimant's injury and the disability; 2) whether claimant is entitled to temporary disability, healing period benefits, or permanent partial disability benefits; 3) whether claimant is entitled to permanent partial disability benefits; and 4) whether claimant is an "odd lot" employee. findings of fact The deputy, having heard the testimony and considered all the evidence, finds: Claimant is married with four children, three of which are minors. She is a 1967 high school graduate. She has lived on a farm for the past 12 years. Prior to the date of her injury, claimant assisted her husband on the farm. She hauled feed, washed bulk milk tanks and performed other farm chores. Claimant's employment has not been continuous since her graduation from high school. She has had periods where she Page 2 did not work but stayed at home to raise her children. In 1980 claimant commenced her employment with defendant-employer. She was hired as a finisher. Her duties included placing banding materials inside baseball caps and winter hats. She was required to manually cut the material with scissors in her right hand and to hold the hat in her left hand. Claimant worked three to four months. However, she quit after she became pregnant. Following the birth of her child, claimant worked in a cafe owned by claimant's mother. In 1984 claimant returned to work for defendant-employer. She was again hired as a finisher with the same duties she had during her previous employment. Claimant worked in this capacity for six years. During the summer of 1989 claimant testified she experienced bumps on both of her wrists. She is right hand dominant. Gradually, claimant noticed increasing pain, especially during the night. She testified she had tingling in both hands up the forearms and into her elbows. She sought medical treatment from her personal physician, Dr. Lyons, M.D. (first name unknown). He, in turn, referred claimant for an EMG. The EMG revealed a moderately severe bilateral carpal tunnel condition. Defendant-employer directed claimant to Richard Pretorius, M.D. The physician diagnosed claimant as having "moderately severe bilaterl [sic] carpal tunnel syndrome." Claimant was then referred to Walter O. Carlson, M.D., a surgeon in Sioux Falls, South Dakota. On February 19, 1990, Dr. Carlson performed a right carpal tunnel release. Later claimant developed reflex sympathetic dystrophy in the right upper extremity. Subsequent to her surgery, claimant engaged in all types of physical therapy. She had a right ganglion block. She participated in psychological counseling. She engaged in a pain management course. However, Dr. Carlson opined it would take from 12 to 18 months to resolve the RSD. Claimant was not released to return to work at her former position. Claimant experienced continued numbness, tingling and pain in her right upper extremity. Claimant was reluctant to have surgery on her left upper extremity because of the problems she had experienced with the right one. As of February 28, 1991, Dr. Carlson opined the following relative to claimant's condition. Based upon her examination at McKennan Hospital, as well as her physical examination in our office, a review of her examinations in the past, and her history, she would receive a 39 percent whole person impairment based upon almost complete sensory loss of the right wrist from the wrist distally as well as motor loss in the median nerve Page 3 distribution and a left carpal tunnel syndrome, unoperated. Defendants then referred claimant to Leonard E. Weber, M.D., a neurologist. He examined claimant for purposes of making an evaluation. Dr. Weber opined that: Impression: 1. History of bilateral median neuropathies in the carpal tunnels, worse on the right both clinically and electromyographically. -- these would appear to be related to job activities around the summer of 1989. 2. Right carpal tunnel release surgery on 2/19/90. 3. Abnormal thermogram on 6/22/90 felt by the performing physician to indicate reflex sympathetic dystrophy in the right upper extremity. -- the thermogram report fails to indicate what side and what part of what side was abnormal. 4. Currently, no objective evidence of any reflex sympathetic dystrophy. 5. Her subjective diffuse right upper extremity pain is probably in large part functional in nature at the present time. -- her residual subjective discomfort may possibly be in part referred pain from the right median neuropathy in the right carpal tunnel as a minor component (with symptom magnification). 6. Functional overlay on the sensory examination, in her exertion of strength in the limb and in her perception of discomfort when the joints are moved. 7. Currently objectively normal neurologic exam, including right upper extremity strength, right upper extremity sensation, right upper extremity range of passive motion, and right upper extremity autonomic function. .... Her stellate ganglion block did not alter symptoms. I would not favor any further Page 4 sympathetic blocks, and would not favor any cervical sympathetic surgical procedures. If she fails to improve with physical therapy, encouragement, and the use of medications like the above, then she needs to get into an established and formal pain clinic program, such as that at the University of Nebraska Medical Center, or at the University of Iowa, that would be able to deal with the emotional aspects coloring her symptoms and preventing her from restoring use to the limb. I believe it would be to her benefit to resume some sort of job activities, with restrictions. Initially, the attempt should be to get her into a job wherein she could work one handed, with restrictions against monotonous and repetitious flexion extension movements at the left wrist, and against constant pressure into the left palm. As she resumes use of the right upper extremity in ordinary activities, she could then resume job activities using both hands, the permanent restriction being against monotonous and repetitious flexion extension movements at either wrist, and against constant pressure into either palm. As to the point of maximum medical improvement, I would estimate another six months, hopefully so she can shed some of her functional overlay. The problem with assigning this lady a per cent [sic] permanent impairment rating now is that she has extensive functional overlay, and this prevents detection of any subtle changes in sensation in the median nerve territory that could provide the basis for some per cent [sic] impairment. I base percent permanent impairment on the Guides to the Evaluation of Permanent Impairment, the third edition published by the American Medical Association. Based on these guidelines, a rough estimate of her current per cent [sic] impairment (not necessarily permanent) relative to the job activities of the summer of 1989 would be 20% upper extremity impairment (12% whole person impairment). This estimate is given under the assumption that she might have some numbness in the right median territory underlying the functional sensory changes, that could be sufficient to prevent some activities. Only with the passage of time, will we be able to determine if these assumptions are valid or not. Eventually, defendants retained Ms. Kathryn M. Bennett Page 5 to assist claimant with vocational rehabilitation. Ms. Bennett assisted claimant with drafting a more positive and effective resume than what claimant had been using. Ms. Bennett also managed to arrange a meeting between claimant and defendant-employer relative to light duty work. Claimant cancelled the meeting. She indicated she was not interested in driving to Orange City for a position. Claimant was more interested in bottle feeding calves at home. conclusions of law The first issue to address is the nature and extent of claimant's permanent disability. There is a bilateral carpal tunnel condition involved here. Section 85.34(2)(s) is applicable. The section reads: The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and shall be compensated as such, however, if said employee is permanently and totally disabled the employee may be entitled to benefits under subsection 3. Workers' compensation benefits for permanent partial disability of two members caused by a single accident is a scheduled benefit under Iowa Code section 85.34(2)(s) and that the degree of impairment caused by a partial loss must be computed on the basis of functional, rather than industrial disability. Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (1983). Bilateral carpal tunnel syndrome resulting from one gradual injury process constitutes the loss of two members from one accident and is evaluated on a functional basis under Iowa Code section 85.34(2)(s). Himschoot v. Montezuma Mfg., file numbers 672778 & 738235 (Appeal Dec. April 15, 1988) (affirmed and appealed to Court of Appeals, February 22, 1990). Bilateral carpal tunnel syndrome, ulnar nerve compression, and Guyon's canal compression limit a condition to hands, wrists and arms, and therefore the claimant's impairment did not extend to the body as a whole. Johnson v. George A. Hormel & Co., (Appeal Decision, June 21, 1988). The wrist is part of the hand and not part of the arm. Elam v. Midland Mfg., 2 Iowa Indus. Comm'r Rep. 141 (Appeal Decision 1981). Claimant sought industrial disability, based on pain extending to her shoulders and neck. However, both doctors that rated claimant's bilateral hand conditions confined their ratings to the upper extremities. The only evidence of involvement of the shoulders and neck was claimant's subjective complaints of pain, which were not substantiated. In addition, even if such pain existed, it was not shown to be disabling. Page 6 Finally, there were non-work incidents in the record that could as likely have caused any shoulder or neck pain, and claimant was diagnosed as suffering significant functional overlay. Held that claimant had failed to carry her burden to show that her injury extended to the body as a whole. Terwilleger v. Snap-On Tools Corp., Appeal Decision, May 24, 1991 (CRC/jeh, #777628, 791749, 862946, 877065). It is also determined that claimant has sustained reflex sympathetic dystrophy to the right upper extremity. The RSD does not extend to the body as a whole. Rather the RSD is confined to the right upper extremity. Claimant has established that the RSD is causally related to her work-related bilateral carpal tunnel condition. Claimant's treating physician, who is board certified in orthopedics, has testified: Q Doctor, do you have an opinion as to whether -- as to the cause of Linda's RSD, her reflex sympathetic dystrophy? A No. It followed her carpal tunnel syndrome surgery. But don't know if anyone knows exactly what causes it. She developed it following her surgery. Usually it links the two. Q Do you have an opinion as to whether Linda would have developed this RSD had she not had the carpal tunnel surgery? MR. HARRISON: Escuse [sic] me. I'm going to object to that question as calling for speculation on the part of this doctor. He had not seen her before February 7th as he testified, and has -- his answer to the last question will indicate that an answer to this one would be speculative. Go ahead, Doctor. A Yeah. It would seem unlikely that she would have developed it because, as I mentioned, the literature is full of articles that would show that one of the complications that can occur following a carpal tunnel surgery is a reflex dystrophy. (Exhibit C, page 16, line 22 through page 17, line 16) Dr. Carlson has opined that it is unlikely that claimant would have developed RSD without the carpal tunnel release. Additionally, Dr. Carlson has testified that it is quite common for RSD to develop after a carpal tunnel release. Then there is the testimony of claimant herself. She had experienced no symptoms regarding RSD until after her work injury. In Dr. Carlson's deposition he notes that: Q I want to go back to Claimant's Exhibit l, the thermogram, and ask you this question. And I Page 7 want you, of course, to draw from your experience and your training professionally, and I also want you to draw from your examinations of Linda and your treatments of Linda as well as from the consultation reports that you have received from Doctor Gutnik and from Doctor Cho and from Doctor Dickinson, and from all the medical records available to you. And I want to ask you if it's possible in your opinion that this woman's reflex sympathetic dystrophy was caused by her carpal tunnel syndrome? A Yes. Q Is that your opinion? A It is. (Ex. C, p. 18, l. 18 - p. 19, l. 6) Dr. Carlson has opined that claimant has a functional impairment of 39 percent. He has broken the rating down to six percent on the left, six percent to the right because of carpal tunnel syndrome and the rest attributable to the right upper extremity. His opinion is accorded more weight than the 12 percent body as a whole impairment rating that was provided by Dr. Weber. Dr. Carlson tracked and treated claimant for over 12 months. He saw claimant on numerous occasions. Dr. Weber, on the other hand, only saw claimant on one occasion and that was for the express purpose of making an evaluation. Dr. Weber did not treat claimant. Therefore, the opinion of Dr. Carlson is deemed more persuasive than the opinion of Dr. Weber. Using the conversion charts of the AMA Guides to the Evaluation of Permanent Impairment, the undersigned determines that claimant's permanent partial disability is calculated as follows: Left Body As Whole = Left Upper extremity hand 6% = 10% = 11% Right BAW 33% 6% = Carpal tunnel 10% 11% syndrome UE 27% = RSD 46% 56UE = Right 33% BAW Left 6% Combined Values Chart 37% p. 246 AMA Guides .37 x 500 weeks = 185 weeks of permanent partial Page 8 disability benefits at the stipulated rate of $191.86. Claimant argues she is an "odd-lot employee." Whether section 85.34(2)(s) allows the issue of odd-lot to be raised does not need to be addressed in this case since claimant has not shown she is an odd-lot employee under Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985), in any event. In Guyton, 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. Here, there was potential one handed work available to claimant, but she, on her own, refused to participate in any discussions regarding working in the Orange City plant. Defendants exhibited a good faith effort to put claimant back to work, but she did not want to drive to any plant but the Rock Rapids one. Claimant has not shown she is an odd-lot employee. The last issue before this division involves 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 App. 1981). Healing period benefits can be interrupted or intermittent. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Again, the testimony of a treating physician is accorded greater weight by the undersigned. As of February 19, 1991, claimant had reached maximum medical improvement Page 9 per claimant's Exhibit A, page 49. This is the date on which claimant's physical rehabilitation had ended. order THEREFORE, IT IS ORDERED: Defendants shall pay unto claimant one hundred eighty-five (185) weeks of permanent partial disability benefits at the stipulated rate of one hundred ninety-one and 86/l00 dollars ($191.86) per week commencing on February 20, 1991. Defendants shall also pay unto claimant fifty-four point eight-five-seven (54.857) weeks of healing period benefits at the stipulated rate of one hundred ninety-one and 86/l00 dollars ($191.86) per week. Accrued benefits shall be paid in a lump sum with interest per section 85.30, Iowa Code as amended. Defendants shall take credit for benefits previously paid claimant. Costs of the action shall be assessed to defendants pursuant to rule 343 IAC 4.33. Defendants shall file a claim activity report as requested by this division pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1992. ______________________________ MICHELLE A. McGOVERN DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Michael Chozen Attorney at Law 832 Lake St Spirit Lake IA 51360 Mr. Frank T. Harrison Attorney at Law Terrace Center STE 111 2700 Grand Ave Des Moines IA 50312 5-1803 Filed February 17, 1992 MICHELLE A. McGOVERN before the iowa industrial commissioner ____________________________________________________________ : LINDA HIERONIMUS, : : Claimant, : : vs. : : File No. 940987 K PRODUCTS, INC., : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : GENERAL CASUALTY COMPANIES, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1803 Claimant sustained a simultaneous bilateral carpal tunnel injury. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ STEVEN SZIBER, Claimant, vs. File No. 940999 HEATING & COOLING SUPPLY, CO., INC., A P P E A L Employer, D E C I S I O N and AMERICAN MANUFACTURERS MUTUAL, Insurance Carrier, Defendants. _________________________________________________________________ The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The decision of the deputy filed January 8, 1992 is affirmed and is adopted as the final agency action in this case. Defendants shall pay the costs of the appeal, including the preparation of the hearing transcript. Signed and filed this ____ day of April, 1993. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Arvid D. Oliver Attorney at Law 2635 Hubbell Ave. Des Moines, Iowa 50317 Mr. Thomas M. Plaza Attorney at Law P.O. Box 3086 Sioux City, Iowa 51102 5-1803 Filed April 29, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ STEVEN SZIBER, Claimant, vs. File No. 940999 HEATING & COOLING SUPPLY, CO., INC., A P P E A L Employer, D E C I S I O N and AMERICAN MANUFACTURERS MUTUAL, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Causal connection and extent of disability, claimant awarded 30 percent permanent partial disability. The award was lower due to lack of motivation by the claimant. Nonprecedential. 5-1803 Filed April 29, 1993 BYRON K. ORTON BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ STEVEN SZIBER, Claimant, vs. File No. 940999 HEATING & COOLING SUPPLY, CO., INC., A P P E A L Employer, D E C I S I O N and AMERICAN MANUFACTURERS MUTUAL, Insurance Carrier, Defendants. ____________________________________________________________ 5-1803 Causal connection and extent of disability, claimant awarded 30 percent permanent partial disability. Nonprecedential. 51802 1803.1 51803 Filed August 3, 1992 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ KEITH HARRIS, Claimant, vs. File No. 941007 GLENWOOD STATE HOSPITAL SCHOOL, A R B I T R A T I O N Employer, D E C I S I O N and STATE OF IOWA, Insurance Carrier, Defendants. ___________________________________________________________ 51802 Claimant found entitled to intermittent healing period benefits. A healing period may be interrupted by a return to work. Riesselmann v. Carroll Health Center, III Iowa Industrial Commissioner Report 209 (App. Dec. 1982). 1803.1 Claimant sustained a partial rotator cuff tear requiring surgery on February 17, 1990. A subsequent arthrogram taken on June 4, 1990, revealed a complete tear of the rotator cuff and claimant underwent a second surgery on June 11, 1990. The agency has typically compensated shoulder injuries industrially on the basis that such injuries involve disability to the body as a whole. Streeter v. Iowa Meat Processing Co., file number 730461 and 809945 (App. Dec. March 31, 1989). 51803 Based on all the factors of industrial disability, it is determined that claimant sustained a 45 percent industrial disability to the body as a whole and it entitled to 225 weeks of permanent partial disability benefits. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : DONALD HILL, : : Claimant, : File No. 941030 : vs. : : A R B I T R A T I O N OSCAR MAYER, : : D E C I S I O N Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Donald Hill against Oscar Mayer Foods Corporation based upon an injury that occurred on October 23, 1989. The disputed issue in the case is the extent of permanent disability that was proximately caused by that injury. The case was heard at Davenport, Iowa, on April 20, 1992. The evidence consists of testimony from Donald Hill, Dale Bird, Vicki DeMarlie, Jason Smith, Dale Potter, and Carin Kaiser. The record also contains claimant's exhibits 1 through 35 and defendant's exhibits C and D. FINDINGS OF FACTS Having considered all the evidence received, together with the appearance and demeanor of the witnesses, the following findings of fact are made: Donald Hill is a 60-year-old man whose formal education is limited to the seventh grade. He has a quite varied work history, essentially all of which involves physical labor. He has substantial experience welding, truck driving, farming, and operating a county road grader. Since 1968 Oscar Mayer has been Donald's exclusive employer. Most of Donald's years with Oscar Mayer were spent boning hams. Approximately four years ago he moved to the curing department where he operated machines involved in the curing and lunch meat production processes. On October 23, 1989, Donald injured his right shoulder while attempting to move one of the machines in the department. He was treated conservatively with light duty without success. Eventually, a torn rotator cuff was diagnosed and it was surgically repaired on February 14, 1990, by orthopedic surgeon John M. Hoffman, M.D. After recuperating from the surgery, Donald was allowed to return to light work effective July 26, 1990. At first, he performed only light janitorial duties. On or about October 18, 1990, he was released to resume full-duty work Page 2 and resumed operating machines in his department. He had some assistance performing some of the functions. Throughout the return to work process, he continued to have problems with his right shoulder. He experienced weakness and inability to work with his right hand overhead. At the end of the first week of resumption of full duty, claimant telephoned Dr. Hoffman, related his symptoms and was told to keep working. By the middle of the second week he was experiencing flu-like symptoms and a headache. He did not work on Thursday of that week, but did work Friday of the second week. On Friday, November 2, 1990, the end of the second week of full-duty work, he went to the hospital emergency room and was diagnosed as having suffered a stroke. Donald's stroke has affected the right side of his body, including his right upper extremity. He stated that it is weak as a result of the stroke. Claimant agreed that the stroke keeps him from working and that he would be working if it had not occurred. Claimant also stated that he is right handed and he is unable to use his right shoulder to earn a living. Donald believes that something occurred during the shoulder repair surgery which caused him to have the stroke. He testified of having a slight headache following the surgery. There is no medical opinion evidence in the record of this case which causally connects the stroke to the right shoulder injury, reparative surgery or anything else connected with the shoulder injury. Robert J. Chesser, M.D., has issued a report in which he indicated that claimant's stroke, referred to as a "CVA," commonly used as an abbreviation for cardio vascular accident, was not related to the shoulder injury or surgery (claimant's exhibit 4). While there is, of course, some possibility that the shoulder injury or surgical procedure may have in some way precipitated the stroke, the greater weight of the evidence in this case does not show that possibility to be a probability. The evidence shows it to be more likely that the shoulder injury and surgery did not cause or precipitate the stroke. Donald is now clearly disabled from working at Oscar Mayer as a result of the stroke and continuing small strokes which afflict him. He had been released to full duty only two weeks before the stroke was diagnosed. That is a relatively limited amount of time in which to make a valid assessment concerning whether or not he would have been able to continue working indefinitely at his job. The fact that he was able to do so, however, and even work some overtime, is an indication that he could have successfully continued to perform his job. He might have needed some assistance with some of the activities, but there is nothing in the record to indicate that any need for assistance would have caused him to be removed from the job. According to Dale Potter, claimant's supervisor, he was not aware of claimant requiring any assistance after resuming full work activities. A torn rotator cuff, the type of injury Donald Page 3 sustained, quite commonly leaves a residual loss of ability to perform overhead work with the effected arm and some discomfort and weakness. The description of claimant's job at Oscar Mayer is such that it does not appear that the loss of ability to perform any substantial amount of overhead work with his right arm would disqualify Donald from that job. The greater likelihood, though it is not an absolute certainty, is that Donald could have continued to be employed by Oscar Mayer, without any significant reduction in earnings, in his same job or some other job which his seniority would permit him to obtain. The greater likelihood is that Donald would have, but for the stroke, continued to be employed by Oscar Mayer until such time as he chose to retire or Oscar Mayer ceased to operate the plant where he was employed. In view of claimant's age and when considered in the light of his proximity to the range of ages at which individuals in our society typically retire, the likelihood of a plant closing forcing him out of a job with Oscar Mayer is much less then it would be if he were a much younger worker. In making this determination it is recognized that the future is always uncertain. Most individuals change employers a number of times through out their working life. The only thing which is certain is that there is a significant degree of uncertainty with regard to future employment relationships. This case presents the added uncertainty of whether claimant would have been physically capable of performing his job indefinitely. As previously indicated, two weeks is not a sufficient amount of time upon which to make a highly reliable prediction for the future. It would be expected that if Donald Hill, without having experienced the stroke, but with impaired use of his right shoulder, were to be forced to seek employment from some other employer that he would experience a very substantial reduction in his rate of actual earnings. The likelihood of such event occurring, however, is quite small. It is, therefore, determined that Donald has experienced a 10 percent reduction in his earning capacity as a result of the October 23, 1989, shoulder injury. CONCLUSIONS OF LAW The claimant has the burden of proving by a preponderance of the evidence that the alleged injury actually occurred and that it arose out of and in the course of 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). The words "arising out of" refer to the cause or source of the injury. The words "in the course of" refer to the time, place and circumstances of the injury. Sheerin v. Holin Co., 380 N.W.2d 415 (Iowa 1986); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971). 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 Page 4 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 (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). As previously indicated, claimant has not proven by a preponderance of the evidence that his strokes and the disability resulting from them, were in any manner proximately caused by the shoulder injury or surgery performed to repair it. The disability for which this employer is liable is limited to that caused by the shoulder injury. The parties stipulated that the disability was to be evaluated industrially, rather than as a scheduled injury to the arm. The record clearly supports that stipulation as shown by the report of operation showing the points at which the anatomical injury existed and the surgical procedures which were performed (cl. ex. 2). 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 (1961). Compensation for permanent partial disability shall begin at the termination of the healing period. Page 5 Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Industrial disability or loss of earning capacity is a concept that is quite similar to impairment of earning capacity, an element of damage in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person, rather than the loss of wages or earnings in a specific occupation. Post-injury earnings create a presumption of earning capacity. The earnings are not synonymous with earning capacity and the presumption may be rebutted by evidence showing the earnings to be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218 (1979); 2 Larson Workmen's Compensation Law, sections 57.21 and 57.31. The fact that Donald Hill did not experience any actual reduction in earnings as a result of the injury does not conclusively negate the existence of any permanent disability having resulted from the injury. Dr. Hoffman found claimant to have a 10 percent permanent impairment of his right upper extremity (cl. ex. 1, p. 3). Evaluating physician William D. Reinwein, M.D., found claimant as having a 15 percent permanent impairment of his right upper extremity (cl. ex. 6). The fact that he is physically impaired is a factor which offsets, to some degree, the impact of the lack of any reduction in actual earnings. There are clearly many employment functions which his shoulder impairment will not allow him to perform that he could have performed absent the shoulder injury. When all the material factors of industrial disability are considered, it is determined that claimant has experienced a 10 percent reduction in his earning capacity and a 10 percent industrial disability within the meaning of Iowa Code section 85.34(2)(u). This entitles him to receive 50 weeks of compensation for permanent partial disability. In the prehearing report it was stipulated that defendant had paid 23 5/7 weeks of permanent partial disability compensation voluntarily prior to the hearing. They are, therefore, required to pay an additional 26 2/7 weeks of compensation for permanent partial disability as a result of this decision. ORDER IT IS THEREFORE ORDERED that Oscar Mayer Foods Corporation pay Donald Hill fifty (50) weeks of compensation for permanent partial disability payable commencing as stipulated on the 30th day of July 1990. Defendant is given full credit for the twenty-three and five-sevenths (23 5/7) weeks previously paid and shall pay the remaining twenty-six and two-sevenths (26 2/7) weeks, all of which is accrued, in a lump sum together with interest pursuant to section 85.30 Page 6 of the Code computed from the date each payment came due until the date it is actually paid. It is further ordered that the costs of this action are assessed against defendant pursuant to rule 343 IAC 4.33. It is further ordered that defendant file claim activity reports as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of October, 1992. ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Burton H. Fagan Attorney at Law 2535 Tech Dr. STE 206 Bettendorf, Iowa 52722 Mr. Richard McMahon Ms. Vicki Seeck Attorneys at Law 600 Union Arcade Bldg 111 E 3rd ST Davenport, Iowa 52801 51108.50 1402.40 Filed October 5, 1992 Michael G. Trier BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ DONALD HILL, Claimant, File No. 941030 vs. A R B I T R A T I O N OSCAR MAYER, D E C I S I O N Employer, Self-Insured, Defendant. ___________________________________________________________ 51108.50 Claimant failed to introduce sufficient evidence to show that the stroke which he suffered was in any way causally connected to his work injury. 1402.40 Even though there was no loss of actual earnings, the fact that claimant's physical capacity had been impaired by the injury was sufficient to support a 10 percent permanent partial disability award. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ PATRICIA JEANNE PUCHER, Claimant, vs. File No. 941181 THE BRITWILL COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. ________________________________________________________________ STATEMENT OF THE CASE Patricia J. Pucher, claimant, has filed a petition in arbitration and seeks workers' compensation benefits from The Britwill Company, defendant employer, and Wausau Insurance Companies, defendant insurance carrier. The hearing was held before the undersigned on January 12, 1995 at Sioux City, Iowa. The evidence in this case consists of the testimony of claimant, Sylvia Hess, Hugh Irwin; joint exhibits 1 through 42 and defendants exhibit A. The case was considered fully submitted at the close of the hearing. ISSUES The parties presented the following issues for resolution: 1. Whether claimant's physical injury is causally connected to her mental disability; 2. Whether claimant is entitled to healing period benefits; 3. Whether claimant is entitled to permanent partial disability benefits, and if so, the appropriate commencement date for benefits; 4. Whether claimant is entitled to payment of certain medical expenses; 5. Whether claimant is entitled to alternate medical care under Iowa Code section 85.27; 6. Whether claimant is entitled to benefits under the odd-lot doctrine; and, 7. Whether claimant is entitled to penalty benefits pursuant to Iowa Code 86.13. FINDINGS OF FACT The undersigned deputy industrial commissioner, having reviewed all of the evidence received, finds the following facts: The claimant was single and 59 years of age on the day of the hearing. She graduated from high school in 1953. She obtained a B.S. degree from Ursuline College in 1957, and thereafter completed a dietetic internship from 1957 through 1958 at Charity Hospital in New Orleans, Louisiana. (Joint Exhibit 29, page 1) She then worked as a floor dietitian at Charity Hospital from 1958 through 1959. From 1960 through 1973 she worked as the supervising dietitian for ARA Services in Philadelphia, Pennsylvania. For a few months in 1973 she worked as the Director of Food Services at Des Moines General Hospital in Des Moines, Iowa. From late 1973 through mid 1977 she worked as a dietary consultant and program planner for the Iowa Commission on Aging. From July 1977 through October 1983 she worked as the program director for the Nebraska Indian Inter-Tribal Development Corporation. From October of 1983 through April of 1986 claimant was self-employed as an independent agent for a life insurance company and as a beauty consultant for Mary Kay Cosmetics. In April of 1986 she became the dietary Service Manager for Indian Hills Care Center. (Jt. Ex. 29, pp. 1, 2) Her job responsibilities included developing policies and procedures, menu writing, training and administration, as well as individual dietary meetings with residents. There were roughly 200 residents at the care facility when she began her employment. She began at a salary of $13,500 per year and when she left the company in 1987 she was making $15,000 per year. In 1987 she began with Beverly Enterprises as a supervising dietician. She traveled throughout the western part of the state insuring that the nursing homes were being run in compliance with state and federal regulations. She would review menu plans and individual residents charts. She performed extensive calculations for the dietary needs of each resident and prescribed dietary supplements. She began at $25,000 per year. Sometime between 1987 and 1989 Beverly Enterprises sold some of their Iowa nursing homes to The Britwill Corporation. After the sale claimant worked for the Britwell Corporation and continued performing the same duties she had performed when the nursing homes were operated by Beverly Enterprises. On Monday, December 18, 1989, claimant was driving a company car from the nursing home in Dunlap, Iowa to go to the nursing home in Odebolt. It had snowed before she left and the roads were covered with snow and ice. Claimant slid through an icy intersection and broadsided a pickup truck. She said that her car bounced off of the pickup truck three times, before both vehicles went off the road. A witness called the police and invited claimant into her home to use her telephone. Claimant called the Britwill office in Des Moines to tell them of the accident and called the nursing home in Odebolt to tell them she wouldn't be coming. She then called a friend to bring down her own car from her Sioux City home. She returned home. She did not seek medical treatment that day or that evening. When she returned home an employee of the Odebolt nursing home called her and asked if she was going to come to the nursing home. The next day she traveled to the nursing home in Odebolt, to another one in Stanford and then on to Des Moines for a meeting. She said that she was experiencing neck, back and ankle pain the morning after the accident. (Jt. Ex. 41, p. 36) Claimant returned to Sioux City after the meeting in Des Moines ended. On the Saturday after the accident, December 23, 1989, claimant called some friends to take her to the emergency room for treatment. She was taken to the Marion Health Center where she was seen by S.E. Vlach, M.D. An examination revealed tenderness in the C6-7 cervical spine area and moderate tenderness in most of the thoracic spine. The lumbar and lower lumbar spine was minimally to moderately tender. Straight leg raising test was negative bilaterally. No symptoms of sciatica were present. Her left ankle was tender and swollen. X-rays of the complete spine showed no signs of fracture or dislocation, although there were degenerative changes noted in the cervical spine and lumbar spine. An x_ray of the left ankle was negative. Dr. Vlach's impression was cervical strain with mild upper thoracic and lower lumbar strain. Degenerative changes were noted on the x-ray. Claimant's left ankle was sprained. Claimant was given Naprosyn and a soft neck collar. She was to return if there was not significant improvement in her symptoms within the next couple of days. (Jt. Ex. 2, pp. 3-8) Claimant continued to work. On January 24, 1990, claimant visited Dr. Horst G. Blume for treatment. His impression was advanced thoracic spondylolysis, spondyloarthrosis, with irritation of the nerve structure of the facet joints in the upper and mid thoracic spine area, and advanced disc degeneration at L5-S1. He recommended a CT scan and a myelogram. She was given Tylenol #3 and Flexeril for pain control. (Jt. Ex. 5, pp. 3, 4) Claimant discovered that Dr. Blume was not an authorized physician and she was not allowed any further treatment with him. She was instructed to see Alan Pechack, M.D., an orthopedic surgeon, for further treatment. On February 26, 1990, claimant saw Dr. Pechacek. He noted that claimant had been treated by Dr. Blume off and on over the years for long-standing back pain and problems. Her current back pain was in the right sacral region and the gluteal area. She did not complain of any radiation into the right hip or leg other than some tightness down in the thigh to the knee. On the left side she was experiencing night cramps that pull her foot down into plantar flexion and supination. She had no cramps during the day. Subjectively, she complained of her left lower leg and foot feeling numb. She did not complain of back or radiating hip and leg pain on the left. (Jt. Ex. 6, pp. 1, 2) His impression was low back pain with degenerative disc disease. No findings supported sciatica or radiculopathy. He recommended that she take some time off work to rest her back and avoid driving and traveling that irritated her back. He prescribed physical therapy three times per week with heat, massage, ultrasound and some low back flexion exercises. She was given a refill prescription for Tylenol #3 and Flexeril. (Jt. Ex. 6, p. 3) Claimant underwent physical therapy from March 5, 1990 through March 19, 1990 with little or no change in her symptoms. Further physical therapy was not recommended. (Jt. Ex. 7) On March 19, 1990, claimant returned to Dr. Pechacek. He noted that she had radiating pains from the right lower back through the buttock down into the thigh and lower leg toward the foot but no numbness or tingling or paresthesias. She stated her left leg felt numb and like a dead weight but she did not have any pain on the left. She has some sciatica but with mixed findings. He recommended an MRI of the lumbar spine. (Jt. Ex. 6, p. 4) An MRI done on March 26, 1990 revealed no evidence of intradural mass lesion, disc herniation or spinal stenosis. Mild degenerative changes of the apophyseal joints bilaterally at L3_4 and mild right S1 vertebral body osseous ridging posteriorly causing minimal narrowing of the intervertebral foramina without nerve compression was observed. (Jt. Ex. 8) On March 29, 1990, Dr. Pechacek instructed claimant to remain at home, not to return to work. (Jt. Ex. 6, p. 5) On April 2, 1990, Dr. Pechacek noted that claimant's symptoms were confusing in that she had one set of symptoms on the right side and another set of symptoms on the left side. He recommended an epidural flood at the L5_S1 level to see if that would alleviate her pain. She was to remain off work. (Jt. Ex. 6, pp. 5, 6) On April 3, 1990, claimant underwent an epidural flood injection at L5_S1 performed by Dr. Monk. (Jt. Ex. 9) On April 16, 1990, Dr. Pechacek noted that the epidural flood had appeared to help somewhat, but he wanted to wait longer to judge the effect. Claimant had been in the hospital with pneumonia which provided her with a lot of bed rest and inactivity which seemed to improve her pain symptoms. In general, she was having less discomfort in her lower back, but still was having tingling in her left leg and discomfort in the right buttock and thigh. (Jt. Ex. 6, p. 6) At her May 4, 1990 appointment Dr. Pechacek noted that she was slowly improving and wanted to try and return to work two days per week. She was given another prescription for Tylenol #3 and Flexeril. (Jt. Ex. 6, p. 8) Claimant was released to return to work two days per week as of May 9, 1990. (Jt. Ex. 6, p. 7) On July 2, 1990, Dr. Pechacek notes that claimant "states that she's been very depressed off and on because of all this." (Jt. Ex. 6, p. 10) Claimant was continuing to work two days per week. On July 9, 1990, claimant again underwent an epidural flood injection in an attempt to relieve some of her continuing symptoms. (Jt. Ex. 10) On July 16, 1990, Dr. Pechacek noted that claimant had a better result from the most recent epidural flood. She was able to do a reasonable amount of walking but prolonged sitting or standing still bothered her. He did not believe she should work any more than the two days per week she had been working. (Jt. Ex. 6, p. 11) Dr. Pechacek referred claimant to Quentin J. Durward, M.D., for additional evaluation. (Jt. Ex. 6, p. 12) Dr. Durward's notes of August 28, 1990 indicate that claimant recognizes she has become extremely depressed. She was somewhat weepy during the interview. (Jt. Ex. 11, p. 2) He did not believe her complaints of pain represented a true sciatica condition. He recommended a myelogram and an EMG study of her leg. He started her on Elavil for her depression which might also help her pain. He believed that she was dependent on Tylenol with Codeine and advised her to wean herself off that as soon as possible. He thought she may need long -term psychiatric care if the depression became too great a factor. (Jt. Ex. 11, pp. 2, 3, 4) Claimant underwent a lumbar myelogram on August 30, 1990 where the radiologist found no focal disc herniation of the lumbar spine was demonstrated. Degenerative changes of the L5_S1 disc were evidenced along with mild circumferential bulging of the L3_4 disc. (Jt. Ex. 12, p. 1-4) EMG studies of her legs were normal. Dr. Pechacek wanted her to continue to treat with Dr. Durward. (Jt. Ex. 6, 14) On November 6, 1990, claimant met with Dr. Durward to go over her test results. His notes indicate that the myelogram showed mild bulging of the L3_L4 disc and some degenerative changes at L5_S1 but no significant root irritation or disc rupture. The CSF protein was normal. EMG nerve conduction studies of her legs were normal. Donald W. Ayres, M.D., the physician who performed the EMG studies, thought that claimant might have multiple sclerosis and put her on Lioresal to control night muscle spasms. The TENS unit was helping her with the pain, but she was still using Tylenol #3 at night. Dr. Pechacek refused to renew her prescription for Tylenol #3 and Dr. Durward believed her to be dependent upon it. The Elavil was helping her sleep better and helping her depression. He did not believe surgery would help her chronic pain. He felt her chronic pain was related to the automobile accident. He did not feel he needed to see claimant on a routine basis. Dr. Durward wanted claimant's family physician to continue to prescribe the Elavil for her, but her family physician wanted a psychiatrist to give her further refills of the drug. (Jt. Ex. 11, p. 5) On November 13, 1990, Dr. Ayres determined that claimant did not have multiple sclerosis but was suffering from B-12 deficiency which could account for all of her symptoms and signs. She was scheduled for B-12 replacement therapy. (Jt. Ex. 13, p. 1) In a letter dated November 26, 1990, claimant was notified that her employment would terminate as of December 31, 1990 as a result of changes in the companies organizational structure. (Jt. Ex. 15) When her employment terminated claimant was being paid $28,000 per year. Claimant's was not the only position terminated. Another dietary supervisory was also terminated. The evidence does not support a finding that claimant was terminated because she sustained a work-related injury. Claimant began treatment with Leonel H. Herrera, M.D., at the Back Care center on November 23, 1990. She was referred to reduce or eliminate her symptoms of low pain to the left of the spine, described as a burning pain, occasional right buttock pain radiating to the back of her thigh and knee and left buttock pain radiating to the thigh and leg, occasionally to the ankle. (Jt. Ex. 14, p. 2) On November 27, 1990, claimant returned to Dr. Pechacek who noted that claimant really didn't think she could continue to work at that time. He recommended that she go off work completely. She was given another prescription for Tylenol #3 with two refills. (Jt. Ex. 6, p. 15) On December 27, 1990, Dr. Ayres noted that claimant has had some significant improvement in the nocturnal myoclonus as well as the lower extremity spasm with the B_12 replacement therapy. He also opined that claimant was suffering from significant situational depression associated with recent loss of job. She was advised to follow up with a previous psychiatric referral for further evaluation of her depression. (Jt. Ex. 13, p. 3) Claimant began seeing Dale R. Wassmuth, M.D., a psychiatrist on January 10, 1991. Dr. Wassmuth's complete notes, including his bills for treatment, can be found at joint exhibit 16, pages 3 through 45. Dr. Wassmuth was still treating claimant on the day of the hearing. On February 7, 1991, Dr. Ayres noted that claimant was discharged from the back care program because she was losing ground. She was placed on an exercise program which involves scheduled walking. (Jt. Ex. 13, p. 4) Also on February 7, 1990, Dr. Ayres wrote to the insurance company and opined that claimant is currently being seen by a psychiatrist for depression. "The emotional stress of being involved in the accident and losing her job are playing into this. Additionally, however, neuropsychiatric abnormalities are associated with B-12 deficiency as well and certainly this further complicates the picture." (Jt. Ex. 13, p. 6) On June 11, 1991, Dr. Pechacek wrote to the insurance company and stated that based on his last office evaluation her back condition had stabilized. He did not anticipate any significant change in her condition. (Jt. Ex. 6, p. 19) Since Dr. Pechacek was closing his practice to move to another state, claimant's care was switched to John Kuhnlein, D.O. On June 19, 1991, defendant insurance company notified claimant by letter that based on Dr. Pechacek's opinion that claimant's condition had stabilized and he did not anticipate any significant change in her condition, they were converting her benefits over to permanent partial disability benefits as of June 11, 1991. They estimated that her permanent disability would be 10 percent to the body as a whole, thus, they were going to pay her for 50 weeks of permanency benefits. The letter also indicated that claimant was still following up with Dr. Wassmuth and she was to by seen by Dr. Kuhnlein on July 11, 1991 for care since Dr. Pechacek was closing his practice. They also indicated that further consideration for permanent disability benefits will be given once they received the additional medical reports of Dr. Kuhnlein. (Jt. Ex. 18) Dr. Ayres opined that as of July 10, 1991, her major dysfunction is the depression. No specific follow-up was arranged by Dr. Ayres after his evaluation of July 10, 1991. (Jt. Ex. 13, p. 8) On July 10, 1991, Dr. Ayres wrote to claimant's family physician and stated: "Physically she has continued to improve, although she has numerous somatic complaints. At this point, it is likely that her depression is the major problem impeding her improvement. It is interesting to note that B12 deficiency can be associated with neuropsychiatric abnormalities including depression." (Jt. Ex. 13, p. 9) Objective testing done on July 16, 1991 clearly indicates that at that time claimant was suffering from severe depression. (Jt. Ex. 21, p. 2) On August 2, 1991, Dr. Kuhnlein recommended that claimant begin occupational and physical therapy, that she continue treating with Dr. Wassmuth, and that she continue on temporary total disability. She was not to return to work. (Jt. Ex. 19, p. 5) Claimant was sent to Marion Health Center for physical and occupational therapy. (Jt. Ex. 19, p. 6) She reported to Dr. Kuhnlein that the physical therapy/ocupational work hardening has been beneficial to a certain extent. On August 30, 1991, Dr. Kuhnlein stated that "Miss Pucher has a significant problem with her depression and in fact I am beginning to believe that this is her major barrier to recovery. Until her depression is under a little better control I don't thing we're going to make much headway in terms of her return to work. . ." (Jt. Ex. 19, p. 12) Claimant was assigned a vocational rehabilitation counselor, Hugh Irwin. Mr. Irwin's qualifications are set out at defendants' exhibit A. On September 19, 1991, Hugh Irwin, a vocational rehabilitation counselor, reported that after meeting with claimant she relayed that she was able to sit pretty good and was able to drive an automobile for up to two hours. (Jt. Ex. 23, p. 5) At the hearing claimant reported that sitting is her most comfortable position. Mr. Irwin determined that based on claimant's physical restrictions she would qualify for many or all dietician positions that she has performed previously. With her college training and previous experience she should have a great number of potential job options no matter what her final physical limitation and restrictions. (Jt. Ex. 23, p. 7) On November 1, 1991, Mr. Irwin reported that claimant was upset with some of the jobs suggested by him. For instance he thought she might be able to perform work of lighter nature like a convenience store clerk or a motel desk clerk, jobs with a minimum amount of physical activity. He reports that claimant felt those jobs would be degrading for her to be in such a menial type position and she was concerned that someone she knew might see her working in such a menial position. (Jt. Ex. 23, p. 12) On November 15, 1991, Dr. Kuhnlein opined that claimant had reached maximum medical improvement. She had undergone a number of conservative measures with no real response to any therapeutic modality. (Jt. Ex. 19, p. 17) In a letter dated November 15, 1991 defendant insurance company notified claimant that claimant's benefits would be switched over to permanent partial disability benefits and that the treatment with Dr. Wassmuth may no longer be authorized. (Jt. Ex. 26) On November 21, 1991, Dr. Kuhnlein determined that claimant had a 12 percent functional impairment based on loss of range of motion and other disorders of the spine. His rating was done per the AMA Guides to the Evaluation of Permanent Impairment, Third Edition. On November 27, 1991, Mr. Irwin reported that claimant had expressed an interest in obtaining such jobs as a food broker, food representative for some type of group such as the Dairy Council, medical sales or some type of government administrative position like she performed with the Commission on Aging. Claimant told him she would begin updating her resume. (Jt. Ex. 23, p. 17) Claimant did not update her resume, as is evidenced by joint exhibit 29. Claimant's resume was last updated in 1989. On December 20, 1991, Dr. Kuhnlein wrote to Hugh Irwin, a rehabilitation counselor, and offered the following work restrictions for claimant. She may lift 20 to 25 pounds on a very occasional basis. She may work with promotional equipment if a wheel dolly is used. She should do no overhead work except on a very occasional basis. She can drive on a self-limited basis. She may have to pace herself when driving by stopping occasionally in order to stretch and walk around. She should have a good fitting pair of shoes that provide good traction in order to prevent falls. The vehicle she drives should have an adjustable lumbar support. (Jt. Ex. 19, p. 21) In his December 27, 1991 report Mr. Irwin identifies several specific job openings in existence for which claimant was qualified. For example, the traveling dietician program with the WIC program, volunteer coordinator for Easter Seals Society and a part-time consulting dietician position open in Onowa, Iowa. (Jt. Ex. 23, p. 20) Mr. Irwin does believe there are jobs that claimant can perform within her physical restrictions. He does doubt that he could get claimant to interview for any of the jobs. Claimant does not feel she can work and as Mr. Irwin pointed out if she feels she can't work, she will not be able to obtain employment. If she felt she could work, he was confident that she could find employment within her physical restrictions. Claimant has not attempted to obtain employment. She currently receives social security disability payments based on the psychiatric reviews set out in joint exhibits 36 and 37 which indicate a primary diagnosis of depression. Claimant was awarded social security disability commencing on November 26, 1990. (Jt. Ex. 38) Joint exhibit 30, page 3, is a bill for medical services rendered to claimant on December 23, 1989 at Marion Health Center. Joint exhibit 30, pages 4 through 9, outline the mileage claims of claimant. Joint exhibit 30, page 10, outlines the cost of taxis claimant has taken to various doctor appointments. Joint exhibit 30, pages 11 through 17, are the original receipts for prescription drugs prescribed for claimant by various medical providers. Also on page 17 is a bill for tennis shoes for $41.99 purchased by claimant for mall walking and use at her physical and occupational therapy sessions on the recommendation of Dr. Herrera. Joint Exhibit 30, page 18, is an itemization of mileage that claimant undertook to go to the pharmacy to obtain medication prescribed by various treating physicians. Joint exhibit 30, page 19, is a bill for laboratory tests ordered by Dr. Wassmuth in the amount of $70.30. Joint exhibit 31, page 1, is additional original receipts for prescription drugs prescribed for claimant by Dr. Wassmuth. Joint exhibit 31, pages 2 through 4 and Joint exhibit 32, pages 1 through 4, are computer printouts of various prescriptions for claimant by various providers. The pink highlighted prescriptions represent those claimant is seeking reimbursement for through this proceeding. Joint exhibit 32, page 5, and joint exhibit 33, pages 1 and 2, are additional original receipts claimant for prescription drugs prescribed for claimant by Dr. Wassmuth. Joint exhibit 34, pages 1 and 2, are additional mileage claims of claimant for trips to Dr. Wassmuth and trips to the pharmacy to pick up prescription medication. On March 3, 1992, defendant insurance company rescinded authorization for any further treatment of claimant by Dr. Wassmuth. (Jt. Ex. 35, p. 1) Claimant was paid healing period benefits from February 26, 1990 through May 7, 1990. She was paid temporary partial disability benefits from May 8, 1990 through November 26, 1990. She was paid additional healing period benefits from November 27, 1990 through December 2, 1990. She was paid for a total of 63 weeks and one day of healing period benefits and for 29 weeks of temporary total disability benefits. She has also been paid for 60 weeks of permanent partial disability benefits based on Dr. Kuhnlein's functional impairment rating of 12 percent of the body as a whole. (Jt. Ex. 39) On August 31, 1994, the deposition of Dr. Wassmuth, claimant's treating psychiatrist, was taken. Dr. Wassmuth was asked extensively about whether he could say with a reasonable degree of medical certainty that claimant's work injury of December 18, 1989 was causally connected to her depression. The totality of the deposition makes clear that Dr. Wassmuth cannot and would not say that claimant's depression is causally connected to her work injury of December 18, 1989. Dr. Wassmuth has been claimant's treating physician for her depression since January of 1991. He is the most qualified to offer an opinion as to causation. He is unable to say that her work injury is causally connected to the mental disability from which she now suffers. (Jt. Ex. 42) The fact that other doctors, including Dr. Ayres, noticed that claimant was depressed is not the same as concluding that her work-related injury was the cause of her depression. Dr. Ayres also discovered that claimant had a B-12 deficiency, that does not mean that her B112 deficiency was causally related to her work injury of December 18, 1989. ANALYSIS AND CONCLUSIONS OF LAW The first issue to be determined is whether the mental disability from which claimant now suffers, depression, is causally connected to her physical injury of December 18, 1989. The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence. Iowa R. App. P. 14(f). 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 (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). Dr. Wassmuth has been treating claimant for depression since January of 1991. He is the physician most qualified to offer an opinion on causal connection. He is unable to say to any degree of medical certainty that claimant's car accident caused her depression. Dr. Wassmuth in his deposition takes pains to point out the fallacy of a post hoc ergo propter hoc argument. In other words, just because the car accident happened first and the depression second, does not mean that the car accident caused the depression. Medical evidence is not only crucial, it is necessary to prove the causal connection between the physical injury and any subsequent mental disability. Claimant cannot offer medical evidence to prove by a preponderance of the evidence that her physical injury is causally connected to the depression from which she now suffers. Thus, it is determined that claimant has not proven that her depression is causally connected to her physical injury of December 18, 1989. The second issue to be determined is claimant's entitlement to healing period benefits. Iowa Code 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). Claimant was off work from February 26, 1990 until May 8, 1990 when she returned part time. While off work she was paid healing period benefits. When she returned to part time work on May 8, 1990 she was paid temporary partial disability benefits. She was off work again beginning November 26, 1990. She was paid additional healing period benefits until December 2, 1991. She reached maximum medical improvement according to Dr. Kuhnlein on November 15, 1991. Claimant is entitled to healing period benefits from November 26, 1990 through November 15, 1991. Claimant has been paid all of the healing period benefits to which she is entitled. She was overpaid healing period benefits from November 15, 1991 through December 2, 1991. The third issue to be determined is whether claimant is entitled to permanent partial disability benefits and if so, the commencement date for such benefits. Since claimant's injury is to her back an evaluation of her industrial disability is mandated. Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which the employee is fitted. Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961). A finding of impairment to the body as a whole found by a medical evaluator does not equate to industrial disability. Impairment and disability are not synonymous. The degree of industrial disability can be much different than the degree of impairment because industrial disability references to loss of earning capacity and impairment references to anatomical or functional abnormality or loss. Although loss of function is to be considered and disability can rarely be found without it, it is not so that a degree of industrial disability is proportionally related to a degree of impairment of bodily function. Factors to be considered in determining industrial disability include the employee's medical condition prior to the injury, immediately after the injury, and presently; the situs of the injury, its severity and the length of the healing period; the work experience of the employee prior to the injury and after the injury and the potential for rehabilitation; the employee's qualifications intellectually, emotionally and physically; earnings prior and subsequent to the injury; age; education; motivation; functional impairment as a result of the injury; and inability because of the injury to engage in employment for which the employee is fitted. Loss of earnings caused by a job transfer for reasons related to the injury is also relevant. Likewise, an employer's refusal to give any sort of work to an impaired employee may justify an award of disability. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980). These are matters which the finder of fact considers collectively in arriving at the determination of the degree of industrial disability. There are no weighting guidelines that indicate how each of the factors are to be considered. Neither does a rating of functional impairment directly correlate to a degree of industrial disability to the body as a whole. In other words, there are no formulae which can be applied and then added up to determine the degree of industrial disability. It therefore becomes necessary for the deputy or commissioner to draw upon prior experience as well as general and specialized knowledge to make the finding with regard to degree of industrial disability. See Christensen v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 529 (App. March 26, 1985); Peterson v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa Industrial Commissioner Decisions 654 (App. February 28, 1985). Compensation for permanent partial disability shall begin at the termination of the healing period. Compensation shall be paid in relation to 500 weeks as the disability bears to the body as a whole. Section 85.34. Claimant was 59 years old on the day of the hearing. She is college educated and has extensive experience as a dietician. She is an articulate, intelligent woman. Many of her job skills and education would be transferable to new situations. Her back injury has not resulted in any surgery. No treating physician has opined that she is unable to work. Her work restrictions are not extensive. She may lift only 20 to 25 pounds on an occasional basis and may never work with her arms overhead. She may drive an automobile but will have to stop occasionally for breaks. Most work performed by dieticians is within her work restrictions. While not attributable to her employment with defendant employer, claimant does suffer from depression. This may make her a less attractive employee to potential employers. She is not particularly motivated to return to work. She believes that she is unable to work. She still suffers from pain, but is able to sit fairly comfortably. After considering all of the factors used to determine industrial disability, it is the decision of the undersigned that claimant has sustained a 20 percent industrial disability. Claimant reached maximum medical improvement on November 15, 1991, thus her commencement date for permanent partial disability benefits is November 16, 1991. The fourth issue to be addressed is whether claimant is entitled to payment of certain medical expenses. The employer shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies for all conditions compensable under the workers' compensation law. The employer shall also allow reasonable and necessary transportation expenses incurred for those services. The employer has the right to choose the provider of care, except where the employer has denied liability for the injury. Iowa Code section 85.27. Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Because claimant's disability, depression, is not causally connected to her work injury of December 18, 1989, she is not entitled to payment or reimbursement for medical expenses or prescription drugs associated with treatment of the depression. This includes fees charged by Dr. Wassmuth and all prescriptions of Dr. Wassmuth. Nor is claimant entitled to reimbursement of, or payment for, mileage expenses for appointments to Dr. Wassmuth or for picking up medication prescribed by Dr. Wassmuth. To the extent that joint exhibits 30, 31, 32, 33 and 34 represent claims for mileage, prescriptions or payment of treatment from Dr. Wassmuth, claimant is denied reimbursement or payment of those expenses. The expense of the tennis shoes set out in joint exhibit 30, page 17, is reimbursable in the amount of $41.99. The costs of laboratory fees ordered by Dr. Wassmuth set out in joint exhibit 30, page 19, is not reimbursable or payable on behalf of claimant. Taxi costs related to the treatment of Dr. Wassmuth are not reimbursable to claimant. Dr. Wassmuth's charges as set out in joint exhibit 16 are not reimbursable to claimant nor are they owed by defendants on behalf of claimant. The fifth issue to be addressed is whether claimant is entitled to alternate medical care under Iowa Code section 85.27. Iowa Code section 85.27 provides, in relevant part: For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee. If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, upon application and reasonable proofs of the necessity therefor, allow and order other care. An application for alternate medical care is not automatically sustained because claimant is dissatisfied with the care he has been receiving. Mere dissatisfaction with the medical care is not ample grounds for granting an application for alternate medical care. Rather, the claimant must show that the care was not offered promptly, was not reasonably suited to treat the injury, or that the care was unduly inconvenient for the claimant. Long v. Roberts Dairy Company, file number 982297 (App. Dec. Feb. 5,1993) Claimant was offered care promptly that was reasonably suited to treat her work-related injury. Claimant has not proven that the offered medical care was unduly inconvenient nor has she proven that she communicated her dissatisfaction to defendant employer in writing. Since it has been determined that claimant's depression is not causally connected to her work injury of December 18, 1989, she is not entitled to any alternate medical care for the depression. Alternate medical care is denied. The sixth issue to be determined is whether claimant is entitled to permanent disability benefits under the "odd lot" doctrine. 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. Claimant is a college educated, articulate, intelligent woman. Her work restrictions do not prevent her from working in the field for which she is trained. Dietician jobs exist in the area where she lives. Claimant has not proven by any weight of the evidence that she is an odd-lot worker. The final issue to be determined is whether claimant is entitled to penalty benefits under Iowa Code section 86.13 Iowa Code 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 paid claimant healing period benefits as well as temporary partial disability benefits for most of the time she was off work. When they stopped paying healing period benefits, claimant was paid permanent partial disability benefits based on Dr. Kuhnlein's functional impairment rating. Claimant has failed to prove that defendants have denied her benefits without probable cause or excuse. Penalty benefits are denied. ORDER THEREFORE, it is ordered: That defendants shall pay claimant one hundred (100) weeks of permanent partial disability at the rate of two hundred ninety_nine and 28/100 dollars ($299.28) per week commencing on November 16, 1991. That defendants shall pay claimant sixty_one (61) weeks of healing period benefits at the rate of two hundred ninety_nine and 28/100 dollars ($299.28) per week. That defendant shall pay medical expenses as set out in the body of the decision. That defendants shall pay accrued benefits in a lump sum. That defendants shall receive credit for benefits previously paid. That defendants shall pay interest on the award as governed by Iowa Code section 85.30. That defendants shall pay the costs of this action. That defendants shall file claim activity reports as requested by the agency. Signed and filed this ____ day of April, 1995. ________________________________ TERESA K. HILLARY DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Dennis J Mahr Attorney at Law 318 Insurance Centre 507 Seventh St Sioux City IA 51101 Mr Frank Harrison Attorney at Law 2700 Grand Ave Des Moines IA 50312 5-1108.20; 5-1404; 5-4100 5-1801.1; 5-1803 Filed April 25, 1995 Teresa K. Hillary BEFORE THE IOWA INDUSTRIAL COMMISSIONER ________________________________________________________________ PATRICIA JEANNE PUCHER, Claimant, vs. File No. 941181 THE BRITWILL COMPANY, A R B I T R A T I O N Employer, D E C I S I O N and WAUSAU INSURANCE COMPANIES, Insurance Carrier, Defendants. ________________________________________________________________ 5-1108.20; 5-1404; 5-4100; 5-1801.1; 5-1803 Claimant, age 59 at the hearing, with college degree and over 30 years work experience as a dietician, suffered a back injury in an automobile accident in a company car. No surgery required. Claimant, who alleged a physical-mental, failed to prove that her severe depression was causally connected to her previous car accident. Awarded 20 percent industrial disability.