BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LORRI BLAIR, Claimant, File No. 970512 vs. A P P E A L MERCY MEDICAL CENTER, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 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 issue on appeal is: Did the claimant sustain an injury which arose out of and in the course of employment August 13, 1990? FINDINGS OF FACT Claimant alleges she was injured while moving a patient at work on August 13, 1990; employer denies claimant was injured at work but instead contends claimant sustained her injury at home on August 15, 1990. (Please note that unless otherwise indicated all dates appearing in this decision are in 1990.) In ultimately resolving the questions of fact and law that are present in this contested case, the issue involving the claimant's credibility or lack thereof is crucial. For reasons that will be reviewed and discussed in this appeal decision, the industrial commissioner finds the claimant is not a credible witness. Claimant was employed by defendant employer, Mercy Medical Center, from March 5 until a few days after the alleged work injury of August 13. The claimant worked as a registered nurse. On August 13 the claimant was working the 3:00 p.m. to 11:30 p.m. shift. She was instructed to work in zone 41, a medical floor that included patients who were unable to care for themselves. (Transcript, pages 53-54) On her work shift of August 13 the claimant was caring for a stroke patient who needed to be turned in his bed every two hours. At approximately 4:00 p.m. the claimant determined it was time to turn this patient. The record is somewhat unclear as to the actual number of nurses who assisted the claimant in turning this patient, but for purposes of this decision suffice it to say at least one other nurse assisted the claimant. (Tr., pp. 54-55, 101) The claimant described the procedure used in turning the Page 2 patient and the industrial commissioner finds the claimant's description of the procedure (Tr., p. 55, l. 18 through p. 57, l. 17) to be factually accurate. During the course of turning the stroke patient the claimant alleges she was injured. The claimant describes the onset of symptoms as follows: Q. What happened as you were turning the patient on August 13, 1990? A. I felt a pull in the back of my neck and shoulder area on the left side and that started when we were turning this patient, and it continued to get worse as my shift went on. (Tr., p. 57) By the end of the August 13 work shift the claimant alleges she was sore and having pain that she describes as follows: Q. Where were you having pain? A. Through the -- oh, I'd say the back of my neck, but it's the shoulder area, up the back part of my neck. I know everybody says I motion to the front, but I can't get to the back. This general area on the back side, my shoulder, up my neck a little bit. Q. And you're indicating on the left side? A. On the left side, correct. Q. And what was the pain sensation like? A. It was pain. It was abnormal. It was pain that I hoped would go away. (Tr., p. 58, l. 23 through p. 59, l. 9) On direct examination the claimant was questioned as to whether she told anybody at Mercy Medical Center on August 13 about the pain she was experiencing during her work shift. The claimant responded: A. I believe I told the nurse that I was working with that, you know, this really kind of hurts and its bothering me more throughout the shift, and I believe I told either the house supervisor or the supervisor on the floor, and I don't know who those people were. (Tr., p. 59, ll. 13-18) On cross-examination the claimant again was unable to name any of the individuals to whom she allegedly reported the injury. (Tr., p. 101) In addition to claimant's inability at hearing (held on December 1, 1993, some three years after the date of the alleged injury) to name the individuals to whom she reported her injury on August 13, it is worth noting that only one month after the alleged injury the claimant was unable to recall the names of any individuals to whom she reported her injury on August 13. (See Employer's Exhibit C, a statement given by claimant on September 13, 1990, to Carol Bowden, a representative of United Fire & Casualty Co.) Claimant's deposition and trial testimony that she reported the work incident to supervisors on August 13 is clearly inconsistent with her own earlier written account. Joint Page 3 Exhibit 3 is an incident report filled out by the claimant. (Tr., p. 124, l. 25 through p. 126, l. 11) Toward the upper right hand corner of the exhibit appears the following: "Time/Date Supervisor Notified." In her own handwriting claimant responded: "8/16/90 Eve. Shift." In the event of a work injury, normal procedure at Mercy Medical Center requires the injured employee to report the injury to a supervisor, fill out an incident report and be seen at the trauma center. The supervisor to whom the injury is reported is then required to note the incident in writing in a nursing service report. Claimant did not submit an incident report until August 16. (Joint Exhibit 3) Even though the claimant could not recall the names of any of the individuals to whom she reported her injury, and even though the claimant failed to timely submit an incident report, the claimant's verbal communication to a supervisor should have resulted in the work incident being noted in a nursing service report on August 13. The alleged injury of August 13 does not appear in a nursing service report until August 15. (Jt. Ex. 1) Claimant believes she telephoned Mercy Medical Center on August 14 and spoke with Suzanne Landsverk, staffing secretary. Claimant contends she either asked for the day off or asked for light-duty assignment. (Tr., p. 60) Claimant contends she was told she absolutely had to come to work because the hospital was short-handed. (Tr., p. 61) Claimant contends she told Landsverk during this telephone conversation that she had hurt herself the previous work shift while lifting the stroke patient. (Tr., p. 62) The industrial commissioner finds the claimant did not have a telephone conversation with Landsverk on August 14. Rather, it is found the claimant's telephone conversation with Landsverk occurred on August 15. (Tr., p. 20) (Findings regarding this August 15 telephone conversation will appear later in this decision.) The claimant worked her scheduled shift on August 14. While at home on the morning of August 15 the claimant was putting away dishes and while lifting a small glass dish felt a pop in the back of her neck in the same area as the alleged August 13 work injury. Claimant described the feeling as much worse than the alleged August 13 work injury, with some numbness and tingling in the left shoulder and arm. (Tr., pp. 64-65) Before the beginning of her work shift on August 15 the claimant telephoned Landsverk and reported she could not come to work because she had injured her neck pulling up a patient at work and also injured herself at home while reaching in a cupboard. (Tr., p. 16) The industrial commissioner finds that it was during this telephone conversation that the claimant first reported a work injury to anyone at Mercy Medical Center. Later that same day claimant telephoned Landsverk saying she would try to come in to work that day. Landsverk told claimant she would try to get her light duty work. Claimant worked light duty on Page 4 August 15 but had to leave work early because she could not tolerate the pain. The claimant first sought medical treatment for her injury on August 16 at Mercy Care North and was seen by Dr. Stuelke. In a notation dated August 16 Dr. Stuelke states: "S. [subjective] felt something pop in neck yesterday. Now pain down left arm." (Employer's Exhibit A, p. 2) Again, the doctor's notation is dated August 16 and makes reference to "yesterday" (emphasis added), meaning August 15. Further, Dr. Stuelke indicates the following: "Onset of injury 8/15/90 A.M." (emphasis added). (Em. Ex. A, p. 1) The morning of August 15 is the time and date the claimant admits she felt a pop in the back of her neck while putting away dishes at home. The industrial commissioner finds the claimant never reported any injury to Dr. Stuelke on the visit of August 16 other than the incident that occurred at home on August 15. Still referring to Dr. Stuelke's notes, the reader's attention is directed to Employer's Exhibit A, p. 3. A-3 shows the same August 16 notation that appears at A-2, but has an additional sentence appearing at the bottom of the page that reads: "Patient states she was pulling a patient up in bed." Claimant admits that this sentence was added because she stopped by Dr. Stuelke's office some time after August 16 and asked that the additional sentence be added. (Tr., pp. 119-120) Clearly, Dr. Stuelke had not made such a notation at the time of the claimant's visit on August 16. To reiterate, the industrial commissioner finds that A-2 accurately reflects the information claimant provided Dr. Stuelke on August 16, i.e., "S. felt something pop in neck yesterday. Now pain down left arm." REASONING AND 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). In the instant case there is no evidence corroborating claimant's contention that she was injured while lifting a patient on August 13. While the lack of corroborative evidence is not necessarily fatal to claimant's position, when considered with other facts present in this record it is very disquieting to this trier of fact: 1. Claimant contends she reported her injury to co-worker(s) and supervisor(s) on August 13, but cannot name even one of the individuals to whom she reported the injury. Standing alone, claimant's inability to name any individual to whom she reported the injury is highly suspicious although not fatal to her burden of showing by a Page 5 preponderance of the evidence that she sustained an injury arising out of and in the course of her employment. 2. Claimant contends she reported her injury to co-worker(s) and supervisor(s) on August 13, but when filling out an incident report she, in her own handwriting, stated she reported the work injury to a supervisor on the evening shift of August 16. The inconsistency between claimant's sworn testimony and documentary evidence in the claimant's own handwriting is indeed very disturbing to this trier of fact. 3. The claimant contends she reported her injury to co-worker(s) and supervisor(s) on August 13, yet the supervisor to whom the claimant allegedly reported her injury on August 13 failed to note the work injury and reporting thereof in a nursing service report, thereby acting contrary to normal procedure. Remember, even though the claimant allegedly cannot name the individuals to whom she reported the injury, the injury and reporting thereof should still be corroborated by documentary evidence, i.e., a nursing service report. The first mention of the alleged work injury does not appear in a nursing service report until August 15, which of course is the very date the claimant admits being injured while at home. Based upon the evidence in this record, the industrial commissioner believes it is very doubtful that claimant could have been injured while working with others and have reported such injury during the same shift without claimant being able to produce corroborating evidence. 4. Claimant first seeks medical treatment on August 16 and provides Dr. Stuelke with information that is clearly consistent with a finding that her injury was sustained at home on the morning of August 15. When seeing Dr. Stuelke on August 16 the claimant makes no mention of a work injury or onset of injury on August 13. Taking all of this evidence into consideration, the industrial commissioner does not believe the claimant sustained an injury while at work on August 13: The claimant cannot name even one individual to whom she reported the injury on August 13. There is no nursing service report prior to August 15. Claimant mentions nothing to Dr. Stuelke about an August 13 work injury. Dr. Stuelke's medical report refers to the morning of August 15 as the onset of injury. The claimant filled out an incident report on August 16 indicating therein that she first reported the injury to a supervisor on that same date. The claimant waited until August 15 to first report an injury (see findings of fact regarding claimant's telephone conversation with Suzanne Landsverk). In addition to the foregoing reasons for finding the claimant has failed to establish by a preponderance of the evidence that she sustained a work injury on August 13, please note the claimant's testimony on crucial points frequently consists of "I don't know" or "I believe" type of responses. (See, e.g., Tr., p. 59, l. 10-18; Tr., p. 60, l. Page 6 21-24; Tr., p. 98, l. 23 through p. 99, l. 4; Tr., p. 116, l. 4-17) These type of responses, especially when viewed in light of the many inconsistencies in the claimant's testimony, certainly do not bode well for the party having the burden of proof. When reviewing a deputy industrial commissioner's findings of fact the industrial commissioner gives deference to credibility findings based on demeanor. However, as previously discussed, the record in the instant case is replete with matters that adversely reflect on claimant's credibility. For all of the foregoing reasons, the industrial commissioner finds the claimant is not a credible witness and concludes the claimant has failed to establish by a preponderance of the evidence that she sustained an injury arising out of and in the course of her employment with Mercy Medical Center on August 13, 1990. WHEREFORE, the decision of the deputy is reversed. ORDER THEREFORE, it is ordered: That claimant shall take nothing from these proceedings. That claimant shall pay the costs of the appeal including the transcription of the hearing. Signed and filed this ____ day of July, 1994. ________________________________ BYRON K. ORTON INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas J. Currie Attorney at Law P.O. Box 998 Cedar Rapids, Iowa 52406 Mr. Jack C. Paige Mr. David A. Elderkin Attorneys at Law P.O. Box 1968 Cedar Rapids, Iowa 52406 1402.10 Filed July 29, 1994 Byron K. Orton BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LORRI BLAIR, Claimant, File No. 970512 vs. A P P E A L MERCY MEDICAL CENTER, D E C I S I O N Employer, Self-Insured, Defendant. ____________________________________________________________ 1402.10 Claimant failed to prove that a work injury occurred. Claimant alleged that she hurt herself while turning a patient. She testified that she told co-employees of the incident but was unable to name the individuals either at the time of the hearing or one month after the alleged incident. The date she testified she told her supervisors was inconsistent with her own written account. Claimant's report of a work incident and her medical treatment followed a non-work incident. Claimant's report of a work incident to her doctor was added as an addendum to the doctor's notes sometime after the doctor had made original notes. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ : LORRI BLAIR, : : File No. 970512 Claimant, : : A R B I T R A T I O N vs. : : D E C I S I O N MERCY MEDICAL CENTER, : : Employer, : Self-Insured, : Defendant. : ___________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Lorri Blair, claimant, against Mercy Medical Center, self-insured employer, hereinafter referred to as Mercy, defendant, for workers' compensation benefits as a result of an alleged injury on August 13, 1990. On December 1, 1993, a hearing was held on claimant's petition and the matter was considered fully submitted at the close of this hearing. The parties have submitted a hearing report of contested issues and stipulations which was approved and accepted as a part of the record of this case at the time of hearing. The oral testimony and written exhibits received during the hearing are set forth in the hearing transcript. According to the hearing report, the parties have stipulated to the following matters: 1. An employee-employer relationship existed between claimant and Mercy at the time of the alleged injury. 2. Claimant is seeking temporary total or healing period benefits from April 6, 1991. 3. At the time of injury claimant's gross rate of weekly compensation was $431.68; she was married; and she was entitled to two exemptions. Therefore, claimant's weekly rate of compensation is $270.74 according to the Industrial Commissioner's published rate booklet for this injury. 4. It was stipulated that the providers of the requested medical expenses would testify as to their reasonableness and defendant is not offering contrary evidence. Subsequent to the hearing, defendant filed a motion to reopen the record due to the discovery of other evidence Page 2 allegedly having relevance to the extent of claimant's current disability. Given the holding in this case that claimant has not as yet reached maximum healing and that an evaluation of permanent disability at this time is premature, this motion is denied as moot. ISSUES The parties submitted the following issues for determination in this proceeding: I. Whether claimant received an injury arising out of and in the course of employment; II. The extent of claimant's entitlement to disability benefits; and, III. The extent of claimant's entitlement to medical benefits. FINDINGS OF FACT Having heard the testimony and considered all of the evidence, the deputy industrial commissioner finds as follows: A credibility finding is necessary to this decision as defendant placed claimant's credibility at issue during cross-examination as to the nature and extent of the injury and disability. From her appearance, demeanor and mannerisms while testifying, claimant is found credible. Claimant worked for Mercy as a registered nurse from March 1990 until a few days after the work injury herein. She briefly returned part-time on a trial basis in February 1991 but could not continue due to continuing symptoms. The job at Mercy primarily consisted of patient care. On or about August 13, 1990, claimant suffered a injury while moving a heavy patient lying on a bed. She began to experience neck and left shoulder area pain. This pain continued to get worse but she completed her shift. The next day her pain continued and she attempted to call in sick but was told she was needed. Claimant then reported for work but was given light duty. Defendant has made much of a report by claimant of symptoms following lifting a small dish at home before she called in. However, claimant's account that this incident at home, although causing symptoms, was relatively minor as compared to the patient incident is believed. For the most part, claimant's account of the events at work is verified by incident reports and the nursing staff records possessed by defendant. The injury is found to be a thoracic outlet syndrome. Claimant saw several medical doctors including specialists in orthopedics; neurology; neurosurgery; and psychiatry. Page 3 The most convincing medical opinions were those of David Roos, M.D., a board certified thoracic and vascular surgeon. After his evaluation in 1992, Dr. Roos concluded that claimant suffered from thoracic outlet syndrome or a chronic inflammation of tissue in the brachial plexus or a congenital narrowing of the thoracic outlet. Dr. Roos, whose qualifications include a full professorship of surgery are impressive, recommends a surgical release procedure that he has often performed over his many years of practice. Dr. Roos is convinced that claimant can be significantly improved by the surgery although he admits that claimant may never be able to return to jobs requiring moderate lifting such as nursing. Other physicians such as a neurologist, Erich Strieb, M.D., disagree with this diagnosis. However, in the words of another neurosurgeon involved in this case, Chad Abernathy, M.D., any qualified physician who believes that he can help should be given the opportunity. The recommended procedure was not disputed by most other physicians such as James LaMorgese, M.D., and Kris Thompson, M.D., who believe that claimant is severely disabled but offer no explanation or treatment alternative. Claimant has been evaluated by two medical centers, the University of Iowa and the Mayo Clinic. University physicians had no explanation and Mayo's suspected thoracic outlet syndrome but claimant was pulled out by defendant's physician before tests could be made. Claimant has not had the surgery suggested by Dr. Roos as defendant has declined to pay for it and claimant has no money or insurance for the procedure. Therefore, it is found that claimant has not reached maximum healing and specifically that it is medically indicated that significant improvement from the injury is anticipated and claimant has not as yet returned to work. Except for a brief time in February 1991, claimant has been temporarily totally disabled from any form of work since a few days after the injury on or about August 16, 1990 and specifically since April 6, 1991, the time when claimant's temporary benefits were ended by defendant, until August 1, 1993 at which time claimant began working for her husband selling insurance on a part-time basis. It is further found that all requested medical expenses listed in the hearing report are causally connected to the work injury found herein for the same reasons as set forth above. CONCLUSIONS OF LAW I. Claimant has the burden of proving by a preponderance of the evidence that claimant received an injury arising out of and in the course of employment. The words "out of" refer to the cause or source of the injury. The words "in the course of" refer to the time and place and circumstances of the injury. See generally, Cedar Rapids Comm. Sch. Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979); Crowe Page 4 v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 N.W.2d 63 (1955). An employer takes an employee subject to any active or dormant health impairments. A work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. U.S. Gypsum, 252 Iowa 613, 620, 106 N.W.2d 591 (1961), and cases cited therein. In the case sub judice, claimant's credible testimony backed up by defendant's own records established the alleged work injury. II. It was found that claimant had not achieved as yet maximum healing. Weekly benefits for temporary total or healing period benefits under Iowa Code section 85.33 and 85.34 begin from the date of injury until claimant returns to work; until claimant is medically capable of returning to substantially similar work to the work she was performing at the time of injury; or, until it is indicated that significant improvement from the injury is not anticipated, whichever occurs first. Given the findings of fact, claimant is entitled to weekly benefits from April 9, 1991 until she began working for her husband in August 1993. After that time, she is entitled to temporary partial disability under Iowa Code section 85.33. Upon a return to full time work, claimant's weekly benefits will end. Should she require further absences from work to receive additional treatment by Dr. Roos, weekly benefits shall resume. III. Pursuant to Iowa Code section 85.27, claimant is entitled to payment of reasonable medical expenses incurred for treatment of a work injury. Claimant is entitled to an order of reimbursement if she has paid those expenses. Otherwise, claimant is entitled only to an order directing the responsible defendants to make such payments directly to the provider. See Krohn v. State, 420 N.W.2d 463 (Iowa 1988). In the case at bar, claimant established causal connection and the requested expenses will be awarded along with a change in authorized care to Dr. Roos for whatever treatment he may recommend including but not limited to TOS decompression surgery. ORDER 1. Defendant shall pay to claimant temporary total disability/healing period benefits from April 6, 1991 until August 1, 1993. Beginning on August 1, 1993, defendant shall pay temporary partial disability benefits as set forth in Iowa Code section 85.33. Upon a return to full time nursing work; upon a return to substantially similar work; or, upon reaching maximum healing, claimant's weekly benefits will end. However, any subsequent absence from work to receive authorized treatment by Dr. Roos shall be compensated by defendant as set forth in Iowa Code section 85.33. Page 5 2. Defendant shall pay the medical expenses listed in the prehearing report. Claimant shall be reimbursed for any of these expenses paid by him. Otherwise, defendant shall pay the provider directly along with any lawful late payment penalties imposed upon the account by the provider. Furthermore, defendant shall provide medical care and treatment by David Roos, M.D., including but not limited to TOS decompression surgery and defendant shall pay for all reasonable expenses associated with that treatment including travel expenses. 3. This agency will review the extent of claimant's entitlement to permanent disability upon claimant reaching maximum healing. The issue of the extent of claimant's entitlement to permanent disability benefits is bifurcated and shall be heard by this agency at such time as the parties indicate readiness by filing a prehearing conference report setting the permanency issues and requesting a hearing. 4. Defendant shall pay accrued weekly benefits in a lump sum. 5. Defendant shall pay interest on weekly benefits awarded herein as set forth in Iowa Code section 85.30. 6. Defendant shall pay the costs of this action pursuant to rule 343 IAC 4.33, including reimbursement to claimant for any filing fee paid in this matter. 7. Defendant shall file activity reports on the payment of this award as requested by this agency pursuant to rule 343 IAC 3.1. Signed and filed this ____ day of February, 1994. ______________________________ LARRY P. WALSHIRE DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Thomas J. Currie Attorney at Law 3401 Williams Blvd SE P O Box 998 Cedar Rapids, Iowa 52406 Mr. Jack C. Paige Mr. David A. Elderkin Page 6 Attorneys at Law 700 Higley Building P O Box 1968 Cedar Rapids, Iowa 52406 5-1803 Filed February 21, 1994 LARRY P. WALSHIRE BEFORE THE IOWA INDUSTRIAL COMMISSIONER ____________________________________________________________ LORRI BLAIR, Claimant, vs. File No. 970512 MERCY MEDICAL CENTER, A R B I T R A T I O N Employer, Self-Insured, D E C I S I O N Defendants. ___________________________________________________________ 5-1803 Non-precedential, extent of disability case. BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ ERNEST WEDERQUIST, : : Claimant, : : vs. : : File No. 970592 GLENWOOD STATE HOSPITAL : SCHOOL, : : A R B I T R A T I O N Employer, : : D E C I S I O N and : : STATE OF IOWA, : : Insurance Carrier, : Defendants. : ------------------------------------------------------------ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Ernest Wederquist, claimant, against Glenwood State Hospital School, employer, and State of Iowa, insurance carrier, defendants, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury sustained on December 19, 1990. This matter came on for hearing before the undersigned deputy industrial commissioner on April 7, 1994, in Council Bluffs, Iowa. The record was considered fully submitted at the close of the hearing. The claimant was present and testified. Also present and testifying were Steven Hauser, Mike Bauge, Judith Piercy, Jess Bergantzel, and Brenda Wederquist. The documentary evidence identified in the record consists of claimant's exhibits 1 through 14 and defendants' exhibits B, D, E, and F. ISSUES Pursuant to the hearing report and order approving same dated April 7, 1994, the parties have presented the following issues for resolution: Whether claimant's injury is a cause of permanent disability and if so, the extent thereof; Whether claimant is entitled to payment of medical benefits pursuant to Iowa Code section 85.27; and Whether claimant is an odd-lot employee. Page 2 FINDINGS OF FACT The undersigned has carefully considered all the testimony given at the hearing, arguments made, evidence contained in the exhibits herein, and makes the following findings: Claimant was born on June 17, 1935 and completed the twelfth grade of school and one year of college. His past work activity includes packing house laborer, self-employed dime store owner, maintenance man, and plumber. Claimant commenced working for employer on June 22, 1978. He was hired as a maintenance repair man. This job included, among other functions, taking care of plumbing maintenance at the school. Claimant testified that on December 19, 1990, while lifting a 96 gallon water heater, he injured his low back. The pertinent medical evidence of record reveals that claimant was originally seen by Thomas C. Bush, M.D., on July 12, 1990, with low back and bilateral leg pain, more on the right than the left. An examination revealed right sciatic pain and some in the left buttock region, but mainly on the right side in the L5 nerve root distribution. Routine x-rays showed a paraintra-articularis defect at L5 on S1, with slight forward displacement of the L5 vertebral body on S1. After several repeated episodes of low back pain and right leg pain over a period of months, claimant underwent a lumbar spine CT scan. This revealed the paraintra-articularis defect at the L5 level and a herniated disc at the L4-L5 level on the right side with degenerative discs at L4 and L5. [ex. 1(a)(1)]. On January 9, 1991, claimant underwent a microlumbar diskectomy at L4-5 on the right with excision of a large extruded disc and decompression of the L5 root and posterolateral fusion from L4 to the sacrum using an otogenous iliac bone graft. This surgery was performed by Dr. Bush and Leslie C. Hellbusch, M.D., at Iowa Methodist Hospital. The surgical report is not in the evidence presented by the parties, however, information regarding the procedure is contained in a letter from Dr. Bush dated August 6, 1993 and office notes found in exhibit 1. According to Dr. Bush, claimant's post-operative period was basically within normal limits for a period of several weeks but then his low back and buttock pain reoccurred. He had intermittent episodes of back spasms and leg pain worse with activity and somewhat resolved with rest and anti-inflammatory medications. A CT scan of the lumbar spine and an MRI of the lumbar spine taken in February and March 1992, respectively, showed no surgical pathology. [ex. 1(a)(1) and ex. 3(a)(1)]. Claimant was sent by defendants to Peter D. Wirtz, M.D., for evaluation on May 13, 1993. Dr. Wirtz stated that claimant's post-operative condition includes: Congenital L5 S1 spondylolysis and with spondylolisthesis; Page 3 Degenerative disc disease with extrusion, right side, L4-5; and Status post-op partial discectomy L4-5 and spinal fusion L4 to S1. [ex. 4(c)(2)]. Dr. Bush referred claimant to the Spine Center at the Mayo Clinic for evaluation on July 27-28, 1993. After reviewing the claimant's medical history and noting his complaints (burning in the arch of his right foot and right low back pain radiating into the right buttock and posterolateral thigh), Gregory S. Peterson, M.D., conducted a physical examination. Based on clinical and laboratory findings, Dr. Peterson concluded that claimant has chronic radiculopathy although his March 1992 MRI is negative and his EMG from July 27, 1993 shows no evidence of active radiculopathy. He stated that his symptoms relate to an old peroneal neuropathy or an old inactive right L5 radiculopathy. (ex. 3). On June 2, 1993, Dr. Wirtz gave claimant a 15 percent body as a whole impairment rating. He stated that claimant's right leg complaints are consistent with the neurologic involvement. He indicated that the symptoms are best managed with activities that restrict aggravation such as lifting, walking and carrying limitations. He noted that a back brace was beneficial to avoid excessive bending and to allow support for the back area. Also, a TENS unit was recommended to transfer discomfort in the muscular areas and anti-inflammatory agents and analgesic medications are also aides for these symptoms. [ex. 4(b)]. CONCLUSIONS OF LAW The first issue to be determined is whether claimant is permanently and totally disabled as a result of his back injury either as an odd-lot employee or otherwise. Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), 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. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950). The rule of odd-lot allocates the burden of production of evidence. If the evidence of degree of obvious physical impairment, coupled with other facts such as claimant's mental capacity, education, training or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such cases it should not be enough to show that claimant is physically capable of performing light work and then round out the case for non compensable by adding a presumption that light work is available. Guyton, 373 N.W.2d at 105. Page 4 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. If the employer fails to produce such evidence and the trier of fact finds the worker falls in the odd-lot category, the worker is entitled to a finding of total disability. Even under the odd-lot doctrine, the trier of fact is free to determine the weight and credibility of the evidence in determining whether the worker's burden of persuasion has been carried. Only in an exceptional case would evidence be sufficiently strong to compel a finding of total disability as a matter of law. Guyton, 373 N.W.2d at 106. The court went on to state: The commissioner did not in his analysis address any of the other factors to be considered in determining industrial disability. Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in a gauging industrial disability. Other factors include the worker's age, intelligence, education, qualifications, experience, and the effect of the injury on the worker's ability to obtain suitable work. See Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984). When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total disability. See McSpadden v. Big Ben Coal Co, 288 N.W.2d 181, 192 (Iowa 1980). Claimant testified that he returned to light work duty with employer on September 9, 1991, and worked until August 28, 1992, when he voluntarily retired. Claimant then applied for and received social security disability benefits and state disability benefits. He testified that he receives $453 per month in IPERS benefits, $857 in social security disability and $925 per month from Hartford Disability Plan. In addition, he co-owns a farm with his sister and receives 1/4 of the cash crop and money generated from selling stock cows. From this enterprise, he earned $22,000 in 1991; $18,000 in 1992 and $22,000 in 1993. In addition, he breeds quarter horses. He has 10-15 brood mares and raises colts. He and his wife testified that this is a losing business and he does it purely for enjoyment and not income. In determining whether claimant is an odd-lot employee, it must first be determined whether claimant has made a prima facie case of total disability by producing substantial evidence that he is not employable in the competitive labor market. Although the undersigned cannot dispute that claimant has obstacles to employment, it clearly has not been shown that he is unemployable. Merely because claimant cannot return to work as a maintenance repair man with employer, does not mean that he is not employable. Claimant worked one full year at light duty with employer and voluntarily quit. There is no indication Page 5 from any medical practitioner that claimant's light work activity with employer was more than his restrictions would allow. In fact, Dr. Bush gave him a 50-pound maximum weight lifting limit and a 25-pound maximum repetitive lifting limit. [ex. 1(f)]. The evidence presented by claimant on this issue falls far short of that needed to establish a prima facie showing that he is unemployable in the same sense contemplated in Guyton, 373 N.W.2d 101. Although claimant made some attempts to find work in October 1992 (3 attempts) and March 1994 (2 inquiries), his efforts in this regard are less than satisfactory or aggressive and probably by design after he was notified of his eligibility to receive social security benefits. (ex. 10). The evidence does not establish that the only services claimant can perform are so limited in quality, dependability or quantity that a reasonable stable market for them does not exist. Claimant stated that he consulted with a vocational rehabilitation counselor but produced no records from that consultation and no vocational assessment indicating that he is unemployable. A determination made by the social security administration as to claimant's disability is not binding on this agency. Although the evidence does not support a finding that claimant is an odd-lot employee, it does support a finding that claimant has a permanent disability which is causally related to his injury. Claimant has clearly demonstrated that he sustained industrial disability as a result of his work-related injury. 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, expe rience 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 dis ability 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 Page 6 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 is currently 58 years old. Even though he was not planning to retire, he testified that his back impairment forced him to retire. Claimant indicated that he was unable to perform even light duty work with employer. However, no physician who has treated and/or examined claimant has indicated that he is unable to perform any work activity. In fact, Dr. Bush, his treating surgeon, indicated that he is capable of performing light work activity. Employers are responsible for the reduction in earnings capacity caused by the injury. They are not responsible for a loss of actual earnings because the employee resists or refuses to return to work. Williams v. Firestone Tire and Rubber Co., III Iowa Industrial Commissioner Report 279 (1982). Claimant is a high school graduate and has one year of college. However, his employment background is primarily manual labor and production work. He is now limited from performing heavy work activity. Nevertheless, employer was willing and did in fact accommodate claimant's restrictions and should not be penalized for claimant's decision to retire. Claimant alleges that he is inactive due to his back injury. However, surveillance tapes indicate that Page 7 claimant is more active then he testified. Since claimant became eligible for social security benefits, he appears unmotivated to become gainfully employed. In any event, claimant is near the end of normal work life. Compared to a younger worker with the same injury, claimant has lost less future earning capacity as a result of his injury. McClellan v. Midwest Biscuit Co., file number 802020, (App. September 20, 1989); Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Merrill v. Eaton Corp., file number 707565 (App. May 9, 1990). After carefully considering all the factors of industrial disability, and employing agency expertise, it is determined that claimant is 50 percent industrially disabled and is entitled to 250 weeks of permanent partial disability benefits at the rate of $267.34 per week commencing September 9, 1991. The next issued to be determined is whether claimant is entitled to medical benefits pursuant to Iowa Code section 85.27. 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. Section 85.27.; Holbert v. Townsend Engineering Co., Thirty-second Biennial Report of the Industrial Commissioner 78 (Review-reopen 1975). Claimant has the burden of proving that the fees charged for such services are reasonable. Anderson v. High Rise Constr. Specialists, Inc., File No. 850096 (App. 1990). Claimant is not entitled to reimbursement for medical bills unless claimant shows they were paid from claimant's funds. See Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa Ct. App. 1983). When a designated physician refers a patient to another physician, that physician acts as the defendant employer's agent. Permission for the referral from defendants is not necessary. Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial Report of the Industrial Commissioner 164 (Arb. Decn. 1979) (aff'd by indus. comm'r). An employer's right to select the provider of medical treatment to an injured worker does not include the right to determine how an injured worker should be diagnosed, evaluated, treated or other matters of professional medical judgment. Assmann v. Blue Star Foods, Inc., File No. 866389 (Declaratory Ruling, May 18, 1988). Since claimant has proven a compensable injury, he is entitled to all reasonable and necessary medical expenses, hospital services and supplies and reasonable and necessary Page 8 transportation expenses incurred for such services. Employer will pay all medical bills designated by claimant as medical expenses for treatment of his back impairment. ORDER THEREFORE IT IS ORDERED: That defendants pay to claimant two hundred fifty (250) weeks of permanent partial disability benefits at the rate of two hundred sixty-seven and 34/100 dollars ($267.34) commencing September 9, 1991. That defendants pay for all medical and mileage expenses incurred for treatment of his work-related injury. That defendants receive credit for any benefits previously paid. That defendants pay accrued amounts in a lump sum. That defendants pay interest pursuant to Iowa Code section 85.30. That defendants pay costs pursuant to rule 343 IAC 4.33. That defendants file claim activity reports as required by the agency pursuant to rule 343 IAC 3.1(2). Signed and filed this ________ day of May, 1994. ______________________________ JEAN M. INGRASSIA DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Sheldon Gallner Attorney at Law 803 3rd Ave PO Box 1588 Council Bluffs, Iowa 51502 Mr. James Christenson Assistant Attorney General Hoover State Office Bldg Des Moines, Iowa 50319 51803 52500 Filed May 5, 1994 Jean M. Ingrassia BEFORE THE IOWA INDUSTRIAL COMMISSIONER ------------------------------------------------------------ ERNEST WEDERQUIST, Claimant, vs. File No. 970592 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. ------------------------------------------------------------ 51803 Claimant found to be 50 percent industrially disabled as a result of a back injury which precludes him from performing his usual heavy work activity as a maintenance repair man. 52500 Claimant found entitled to payment of medical and mileage expenses incurred for treatment of his work-related injury.