BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DONALD BOWMAN,
 
        
 
            Claimant,
 
                                               File No. 453292
 
        vs.
 
                                               D E C I S I O N
 
        EAST UNION COMMUNITY SCHOOL
 
        DISTRICT,                                    O N
 
        
 
            Employer,                           R E M A N D
 
        
 
        and
 
                                                   F I L E D
 
        THE HARTFORD INSURANCE COMPANY,
 
                                                  JUN 7 1989
 
            Insurance Carrier,
 
            Defendants.                IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        
 
                       STATEMENT OF THE ISSUES PRESENTED
 
        
 
             On May 30, 1989, the matter was remanded to me for 
 
             consideration of the memorandum of agreement approved by this 
 
             agency on June 14, 1986, with reference to the undersigned's 
 
             award of medical benefits in a decision rendered on April 22, 
 
             1988. The April 22, 1988 decision stated as follows in the first 
 
             unnumbered paragraph of the fifth unnumbered page:
 
        
 
             Defendants in this case have denied the causal connection of 
 
             claimant's current low back problems to the work injury. 
 
             For that reason and absent a future change in defendants 
 
             [sic] legal position on the issue of liability, defendants 
 
             will not have the right to choose the care for claimant's 
 
             injuries...
 
             
 
             In the prehearing report submitted to the undersigned prior 
 
             to the hearing on February 23, 1988, the parties indicated that 
 
             the causal connection of the medical expenses requested by 
 
             claimant to the work injury was disputed by defendants.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             A memorandum of agreement conclusively establishes an 
 
             employer-employee relationship and the occurrence of an injury 
 
             arising out of and in the course of employment. Trenhaile v. 
 
             Quaker Oats Co., 228 Iowa 711, 292 N.W. 799 (1940); Fickbohm v. 
 
             Ryal Miller Co., 228 Iowa 919, 292 N.W. 801 (1940). It does not 
 
             establish the nature or extent of disability. Freeman v. Luppes 
 
             Transport Company, Inc., 227 N.W.2d 143 (Iowa 1975).
 
        
 
             As a memorandum of agreement does not establish causal 
 
             connection of the injury to any particular condition or ailment, 
 
             defendants had a right to deny liability for, and contest the 
 
             causal connection of, the condition treated by Dr. Yennie and at 
 
             the Sister Kinney Institute. However, when they choose to do so, 
 
             they lost the right to chose the care. Defendants cannot deny 
 

 
        
 
 
 
 
 
             responsibility to furnish the care and at the same time assert a 
 
             right to choose the care. Kindhart v. Fort Des Moines Hotel, 
 
             Vol. 1 Iowa Industrial Commissioner Decisions No. 3, 611 (App. 
 
             Dec. 1985); Barnhart v. MAQ Incorporated I Iowa Industrial 
 
             Commissioner Report 16 (App. Dec. 1981).
 
        
 
            Therefore, the existence of a memorandum of agreement has no 
 
        bearing upon the decision rendered April 22, 1988. The 
 
        prehearing report indicated defendants' position at hearing.
 
        
 
                                      ORDER
 
        
 
             The arbitration award as ordered on April 22, 1988, is 
 
             unchanged and reaffirmed.
 
        
 
        
 
            Signed and filed this 7th day of June, 1989.
 
        
 
        
 
        
 
        
 
                                     LARRY P. WALSHIRE
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. James R. Lawyer
 
        Attorney at Law
 
        West Towers Office
 
        1200 35th St., STE 500
 
        West Des Moines, Iowa 50265
 
        
 
        Mr. Frank T. Harrison
 
        Attorney at Law
 
        Terrace Center, STE 111
 
        2700 Grand Ave.
 
        Des Moines, Iowa 50312
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD BOWMAN,
 
         
 
              Claimant,
 
                                                   FILE NO. 453292
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         EAST UNION COMMUNITY SCHOOL
 
         DISTRICT,                                D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and                                          F I L E D
 
         
 
         THE HARTFORD INSURANCE COMPANY,             APR 22 1988
 
         
 
              Insurance Carrier,              IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                           STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Donald 
 
         Bowman, claimant, against East Union Community School District, 
 
         employer (hereinafter referred to as East Union), and The 
 
         Hartford Insurance Company, insurance carrier, for workers' 
 
         compensation benefits as a result of an alleged injury on March 
 
         1, 1976.  On February 23, 1988, 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 the prehearing 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.  
 
         Oral testimony was received in the hearing only from claimant.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.  According to the prehearing report, 
 
         the parties have stipulated to the following matters:
 
         
 
              1.  On March 1, 1976, claimant received an injury which 
 
         arose out of and in the course of employment with East Union.
 
         
 
              2.  The injury of March 1, 1976 was a cause of both 
 
         temporary disability during a period of recovery and permanent 
 
         disability.
 
         
 
              3.  The medical bills submitted by claimant at hearing were 
 
         causally connected to the medical condition upon which the claim 
 
         herein is based but that the issue of their causal connection to 
 
         the work injury remains an issue to be decided herein.
 
         
 
                                    ISSUE
 
                                                
 
                                                         
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is the extent of claimant's entitlement to 
 
         medical benefits under Iowa Code section 85.27.
 
         
 
                         SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant is a retired school teacher.  According to 
 
         uncontroverted medical records submitted into the evidence, 
 
         claimant first injured his low back following an incident on 
 
         March 1, 1976, involving an altercation with a student and 
 
         claimant was pushed to the floor striking his lower back.  After 
 
         a period of conservative treatment, claimant's physicians 
 
         diagnosed that he suffered a herniated disc at the L3-4 level in 
 
         the incident.  This herniation was surgically corrected by a 
 
         discectomy and fusion surgery in 1976 and 1977.  Claimant 
 
         returned to work but in 1980, claimant reported to his physicians 
 
         that he had again injured his low back after being tripped by a 
 
         disturbed student.  Claimant then underwent additional treatment 
 
         of therapy including evaluation and treatment by Charles Burton, 
 
         M.D., at the Sister Kenny Institute in Minneapolis, Minnesota.  
 
         Claimant was then rated as suffering from a 20 percent permanent 
 
         partial impairment to his low back as a result of his chronic low 
 
         back difficulties. Dr. Burton from the Sister Kenny Institute 
 
         makes the following diagnosis:
 
         
 
              DIAGNOSTIC IMPRESSIONS:
 
              1.  Lumbar degenerative disc disease.
 
         
 
              2.  Failed low back surgery syndrome, status post L3-4 
 
                  discectomy 11-76, and L3-4 fusion 7-77.
 
         
 
              3.  Chronic herniated disc L5-S1, left.
 
         
 
              4.  Left sciatic radiculitis secondary to the above.
 
         
 
              5.  Possible lumbosacral adhesive arachnoiditis and epidural 
 
                  fibrosis.
 
         
 
              6.  Possible post left CVA residual.
 
         
 
              7.  History of hypertension.
 
         
 
              8.  Chronic pain patient.
 
         
 
                                                
 
                                                         
 
              Dr. Bowman has given claimant permanent prescriptions for 
 
         therapy including hydrotherapy and the implantation of a PENS 
 
         unit in claimant's back which is an electrical nerve stimulation 
 
         device to reduce pain.  Claimant continues to use this electrical 
 
         nerve stimulation device at the present time.
 
         
 
              In November, 1984, claimant and defendants entered into a 
 
         special case settlement under Iowa Code section 85.35 for all 
 
         claims arising from the 1980 back injury.  This special case 
 
         settlement was approved by order of this agency on November 14, 
 
         1984.  At the same time claimant and defendants entered into 
 
         another agreement regarding the medical expenses from the 1976 
 
         injury.  According to exhibit 1, claimant and defendants agreed 
 
         that the back condition treated at the Sister Kenny Institute was 
 
         related to the 1976 altercation.  The parties also agreed that 
 
         certain medical payments will continue.  The agreement provided 
 
         that defendants were not agreeing that all future back problems 
 
         claimant may experience are causally connected to the 1976 injury. 
 
         Defendants then agreed to pay some outstanding bills and to pay 
 
         claimant a sum of $302.95 per year as reimbursement for 
 
         nonprescription medications and batteries for his PENS unit.  
 
         There was no showing in the evidence of this case that this 
 
         portion of the settlement was approved by this agency or that it 
 
         was even submitted to this agency.  The order approving the 85.35 
 
         settlement did not refer to the 1976 injury or to the payments 
 
         made under this auxiliary agreement.  The action filed herein is a 
 
         result of an allegation that defendants are refusing to live up to 
 
         this agreement.
 
         
 
              Claimant testified in 1986 on a trip to Kansas City, 
 
         Missouri he met a Richard Yennie, D.C., who noted that claimant 
 
         had back problems and suggested that he try his chiropractic 
 
         clinic which specializes in giving acupressure treatments as 
 
         opposed to acupuncture treatment.  Claimant testified that he has 
 
         traveled from his home in Des Moines to the Yennie Clinic in 
 
         Kansas City, Missouri on several occasions during 1986 and 1987 
 
         and continues to do so at the present time.  Claimant states that 
 
         he obtains relief, albeit temporary, from such treatment and must 
 
         return every three or four months.  Defendants refuse to pay for 
 
         this treatment and in the prehearing report denied the causal 
 
         connection of claimant's current medical expenses and medical 
 
         condition to the 1976 work injury.
 
         
 
              In a report dated June 7, 1986, Dr. Yennie and his partner, 
 
         Katherine Smith, D.C., opined that claimant suffers from a lumbar 
 
         nerve root compression resulting in bilateral sciatic neuralgia. 
 
         "Onset, accident, March 1976."
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that he was testifying in a candid and truthful manner.
 
         
 
                       APPLICABLE LAW AND ANALYSIS
 
         
 
              Pursuant to Iowa Code section 85.27, claimant is entitled to 
 
         either an order directing defendants to pay reasonable medical 
 
                                                
 
                                                         
 
         expenses for treatment of a work injury or an order of 
 
         reimbursement.  Claimant is entitled to an order for 
 
         reimbursement only for those expenses which he has previously 
 
         paid.  Krohn v. State, N.W.2d (Iowa 1988) decision filed March 
 
         16, 1988.
 
         
 
              First, claimant seeks enforcement of the 1984 settlement 
 
         agreement.  This deputy industrial commissioner is without 
 
         statutory authority to enforce a contract by awarding damages by 
 
         ordering specific performance as a result of any alleged breach 
 
         of contract.  Such matters are proper only before the Iowa 
 
         District Court.
 
         
 
              Second, this agency did not participate in the 1984 
 
         agreement, nor was there any approval of the agreement to the 
 
         knowledge of this deputy commissioner.  Iowa Code section 86.13 
 
         specifically states that compensation agreements are not valid 
 
         unless approved by this agency.  Although it could be argued 
 
         under some recent decisions of the courts, that the agreements 
 
         with reference to medical benefits are not 86.13 "compensation" 
 
         agreements requiring agency approval.  However, without 
 
         participation by this agency it is not binding on this agency in 
 
         any event.  Whether or not the parties are estopped from 
 
         asserting matters contrary to the agreement before this agency is 
 
         a matter again for the courts not for this deputy commissioner.
 
 
 
                       
 
                                                         
 
         
 
              Third, defendants claim that treatment by Dr. Yennie was not 
 
         authorized and claimant is not entitled to reimbursement for such 
 
         expenses or such treatment under Iowa Code section 85.27 which 
 
         provides employers with the right to choose the care.  However, 
 
         section 85.27 applies only to injuries compensable under Chapters 
 
         85 and 85A of the Code and obligates the employers to furnish 
 
         reasonable medical care.  This agency has held that it is 
 
         inconsistent to deny liability and the obligation to furnish care 
 
         on the one hand and at the same time claimant's right to choose 
 
         the care.  Kindhart v. Fort Des Moines Hotel, I Iowa Industrial 
 
         Commissioner Decisions No. 3, 611 (1985); Barnhardt v. MAQ, Inc., 
 
         I Iowa Industrial Commissioner Report 16 (1981).
 
         
 
              The right to control the medical care must be conditioned 
 
         upon the establishment of liability for an injury or a condition 
 
         related to an injury either by admission or final agency 
 
         decision. Iowa Code section 85.27 does not give the employer the 
 
         right to choose the care without offering claimant the right to 
 
         petition the commissioner to resolve disputes concerning such 
 
         care. However, this agency does not have authority to order an 
 
         employer to furnish any particular care unless the employer's 
 
         liability for the injury under 85, 85A or 85B has been 
 
         established.  Therefore, the right to control the care must 
 
         coincide with this agency's jurisdiction over the matter.
 
         
 
              Defendants in this case have denied the causal connection of 
 
         claimant's current low back problems to the work injury.  For 
 
         that reason and absent a future change in defendants legal 
 
         position on the issue of liability, defendants will not have the 
 
         right to choose the care for claimant's injuries until a decision 
 
         of this agency establishing a work relatedness of claimant's 
 
         current medical expenses becomes final.  As the views of Dr. 
 
         Yennie and his associate that their treatment is causally 
 
         connected to the 1976 injury is uncontroverted, the required 
 
         causal connection can be found in this case.  Therefore, the full 
 
         expenses, including travel expenses for the treatment of claimant 
 
         by Dr. Yennie are reimbursable.  The hydrotherapy treatment 
 
         expenses is also clearly causally connected due to the 
 
         prescription for such therapy by doctors at the Sister Kinney 
 
         Institute.  In his testimony, claimant stated that he had paid 
 
         all of the requested expenses and therefore defendant will be 
 
         ordered to reimburse claimant.
 
         
 
              All the medical expenses and travel expenses appear 
 
         reasonable.  The treatment was offered by a medical practitioner 
 
         whose qualifications were not challenged by defendants.  Although 
 
         the agreement of settlement in 1984 could not be enforced, the 
 
         amounts in the agreement to reimburse claimant for 
 
         nonprescription medication and batteries for the PENS unit appear 
 
         to be a reasonable approach to the problem and will be adopted as 
 
         a part of claimant's entitlement to expenses under 85.27 in the 
 
         future.
 
         
 
                            FINDINGS OF FACT
 
                                                
 
                                                         
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On March 1, 1976, claimant suffered an injury to his low 
 
         back which arose out of and in the course of his employment with 
 
         East Union.
 
         
 
              3.  The work injury of March 1, 1976, was a cause of 
 
         permanent disability and of physical activity restrictions.
 
         
 
              4.  The expenses listed by claimant in the prehearing report 
 
         are necessary and reasonable expenses for medical treatment of 
 
         the work injury of March 1, 1976.
 
         
 
              5.  As of the date of this decision, defendants have denied 
 
         liability for the condition which necessitated the expenses 
 
         incurred by claimant listed in the prehearing report.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to the medical benefits awarded below.
 
         
 
                                  ORDER
 
         
 
              1.  Defendants shall pay to claimant the sum of three 
 
         thousand six hundred seventy-three and 45/100 dollars ($3,673.45) 
 
         as reimbursement for medical expenses previously paid and 
 
         defendants are directed to pay all future treatment and travel 
 
         expenses by claimant for continued treatment by Dr. Yennie. 
 
         Defendants may apply to this agency to change the care but shall 
 
         continue to provide such care during the pendency of such 
 
         proceedings.  Defendants shall also pay the sum of three hundred 
 
         two and 95/100 dollars ($302.95) per year as a result of 
 
         claimant's nonprescription medication and battery expenses.  This 
 
         amount may be adjusted by the parties as needed upon application 
 
         of this agency.
 
         
 
              2.  Defendants shall receive credit for previous payments of 
 
         benefits under a nonoccupational group insurance plan if 
 
         applicable and appropriate under Iowa Code section 85.38(2).
 
         
 
              3.  Defendants shall pay the costs of his action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
                                        
 
              Signed and filed this 22nd day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
                                                                              
 
         
 
         Copies To:
 
         
 
         Mr. Jim Lawyer
 
         Attorney at Law
 
         1200 35th Street
 
         Suite 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Frank T. Harrison
 
         Attorney at Law
 
         2700 Grand Ave.
 
         Des Moines, Iowa  50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2500
 
                                                 Filed April 21, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD BOWMAN,
 
         
 
              Claimant,
 
                                                      FILE NO. 453292
 
         vs.
 
                                                    A R B I T R A T I 0 N
 
         EAST UNION COMMUNITY SCHOOL
 
         DISTRICT,                                     D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         THE HARTFORD INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         2500
 
         
 
              An agreement among the parties as to the payment of medical 
 
         expenses as a result of a 1976 injury which was not approved by 
 
         this agency was not found to be binding upon this agency. 
 
         Defendants were found to have lost the right to choose the care 
 
         because of a denial of liability of the condition being treated. 
 
         Medical benefits were awarded to claimant upon an uncontroverted 
 
         showing of causal connection of the expenses to the work injury 
 
         of 1976.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                                                 2505
 
                                                 Filed June 7, 1989
 
                                                 LARRY P. WALSHIRE
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DONALD BOWMAN,
 
        
 
            Claimant,
 
                                                       File No. 453292
 
        vs.
 
                                                       D E C I S I O N
 
        EAST UNION COMMUNITY SCHOOL
 
        DISTRICT,                                      O N
 
        
 
            Employer,                                 R E M A N D
 
        
 
        and
 
        
 
        THE HARTFORD INSURANCE COMPANY,.
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
             
 
        2505 - Right to chose medical care - Decision on Remand
 
        
 
             The existence of a memorandum of agreement does not provide 
 
             the right to chose the care. Although a memo establishes 
 
             liability for an injury, it does not establish causal connection 
 
             of the injury to any particular condition being treated. 
 
             Employers have the right to deny liability for or, the causal 
 
             connection of, any particular condition even under a memo but 
 
             when they do so, they lose the right to chose the care. Agency 
 
             precedent cited. Original decision reaffirmed.
 
             
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                      before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOSEPH P. BOYLE,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 468349
 
            W. A. KLINGER,                :
 
                                          :         M E D I C A L
 
                 Employer,                :
 
                                          :        B E N E F I T S
 
            and                           :
 
                                          :        D E C I S I O N
 
            MARYLAND CASUALTY COMPANY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding brought by Joseph Boyle, claimant, 
 
            against W. A. Klinger, employer (hereinafter referred to as 
 
            Klinger), and Maryland Casualty Company, insurance carrier, 
 
            defendants, for the recovery of workers' compensation medi
 
            cal benefits as the result of an injury on March 29, 1977.  
 
            A memorandum of agreement for this injury was filed on April 
 
            12, 1977.  On March 18, 1992, a hearing was held on 
 
            claimant's petition and the matter was considered fully sub
 
            mitted at the close of this hearing. 
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1. On March 29, 1977, claimant received an injury aris
 
            ing out of and in the course of employment with Klinger.
 
            
 
                 2.  With reference to the medical bills submitted by 
 
            claimant at the hearing, exhibits 10-19, it was stipulated 
 
            that the providers would testify that the charges and treat
 
            ment were fair and reasonable and that defendants are not 
 
            offering contrary evidence.  It was also agreed that these 
 
            expenses are causally connected to the medical condition 
 
            upon which the claim herein is based but that the issue of 
 
            their causal connection to any work injury remains an issue 
 
            to be decided herein.
 
            
 
                                          ISSUE
 
            
 
                 The only issue submitted by the parties for determina
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            tion in this proceeding is the extent of claimant's entitle
 
            ment 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 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the circumstances leading up to his 
 
            seizure disorders, the causal connection of which to the 
 
            work injury was in dispute.  From his demeanor while testi
 
            fying, claimant is found credible.  This finding is made 
 
            despite the fact that claimant was convicted of a theft 
 
            felony in 1989.  This involved assisting his ex-wife in 
 
            cashing a stolen check.  This, however, appears to be the 
 
            only negative aspect of his character history from the evi
 
            dence presented.  The District Court apparently concluded 
 
            this as well as he received a suspended sentence.  Claimant 
 
            served honorably in the military service only a short time 
 
            before this incident.  He has fallen on financial hard times 
 
            due to his seizure disorder.  Claimant's demeanor convinced 
 
            the undersigned that he was telling the truth as to the lack 
 
            of any intervening injuries to the head between 1977 and the 
 
            present and that alcohol use only occurred twice before his 
 
            seizures:  once in 1989 and another in October 1990.
 
            
 
                 At the request of claimant and without objection from 
 
            defendants, official notice was taken of the memorandum of 
 
            agreement filed with this agency by defendants on April 12, 
 
            1977.  Claimant was initially injured while working as a 
 
            construction worker during a windy day.  On the day of 
 
            injury his hard hat blew off and the wind subsequently 
 
            caused a large wooded 2 x 4 to fall 10-15 feet, perpendicu
 
            larly, onto the top of his head.  He then fell to the con
 
            crete.  Claimant was immediately hospitalized with a brain 
 
            concussion and brain surgery was required to remove a large 
 
            blood clot from the brain.  Claimant was initially given 
 
            anti-seizure medicine following the injury but this ended 
 
            when he experienced no seizures and was released from care 
 
            six months after the injury.  The primary treating physician 
 
            for this injury was Horst Blume, M.D., a neurosurgeon in the 
 
            Sioux City metro area.
 
            
 
                 Claimant had no head or brain difficulties following 
 
            his release from Dr. Blume until February 1987 when he was 
 
            serving in the U.S. armed services stationed at Ft. Hood, 
 
            Texas.  At that time, claimant had a seizure while playing 
 
            pool in his barracks.  He stated he was not consuming alco
 
            holic beverages at the time nor during the 48 hours before 
 
            the seizure.  Claimant was then placed back on Dilantin, an 
 
            anti-seizure drug, by military doctors during the rest of 
 
            his enlistment period.
 
            
 
                 Claimant was honorably discharged in March 1988 and at 
 
            that time claimant on his own decided to stop taking 
 
            Dilantin.  Claimant was seizure free for almost six months 
 
            but then while drinking coffee on the morning of August 27, 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            1989, he experienced another of these "grand mall" type of 
 
            seizures and awoke in the hospital.  Claimant admitted to 
 
            his physicians at the time that he had consumed 8-10 beers 
 
            the night before and was suffering a hangover at the time.  
 
            Claimant was placed back on Dilantin and he has taken this 
 
            drug ever since.  He was also advised to stop drinking alco
 
            holic beverages.
 
            
 
                 Claimant experienced four more seizures in 1991, the 
 
            last being in December while attending a pre-employment 
 
            training session for an insurance company.  Claimant stated 
 
            that he had a couple of drinks the night before the seizure 
 
            in October 1991.  He states that pursuant to advice of doc
 
            tors, he quit drinking alcoholic beverages in October 1991.
 
            
 
                 Claimant's family physician, Jeffrey Knerl, M.D., 
 
            states he has no definite opinion as to the causal connec
 
            tion between the injury of March 29, 1977 and claimant's 
 
            seizure disorders beginning in February 1987 but thought 
 
            such a connection possible.  The treating 
 
            neurologist/neurosurgeon, Dr. Blume, definitely opines that 
 
            these seizures are a direct result of this injury.  Another 
 
            neurologist, Alfredo Socarras, M.D., opines that these 
 
            seizures are likely to be post-traumatic in origin but also 
 
            believes that ingestion of alcoholic beverages has been a 
 
            factor.  Dr. Socarras did not explain why the seizures 
 
            occurred when claimant was not drinking, especially the most 
 
            recent seizure which has occurred since claimant ended his 
 
            consumption of alcohol.
 
            
 
                 As the original treating physician, Dr. Blume's views 
 
            must be given the greater weight.  In any event, regardless 
 
            of the alcohol ingestion, the consensus of the opinion 
 
            appears to be that the work injury was and remains to be a 
 
            significant causative factor in the seizure disorders.  
 
            Therefore, it is found that the seizures since February 1987 
 
            and any future such seizures are likely due to the work 
 
            injury of March 29, 1977.
 
            
 
                 Given the testimony of claimant and the parties' stipu
 
            lations in the prehearing report, the requested medical 
 
            expenses (exhibits 10-19) are found causally connected to 
 
            the injury of March 29, 1977 and constitute fair and reason
 
            able treatment for this work injury.
 
            
 
                                     CONCLUSIONS OF LAW
 
            
 
                 In a medical benefits case the claimant has the burden 
 
            of proving by a preponderance of the evidence that the work 
 
            injury is a cause of the medical condition requiring medical 
 
            treatment.  The question of causal connection is essentially 
 
            within the domain of expert medical opinion.  Bradshaw v. 
 
            Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
            (1960).  The opinion of experts need not be couched in defi
 
            nite, positive or unequivocal language and the expert opin
 
            ion may be accepted or rejected, in whole or in part, by the 
 
            trier of fact.  Sondag v. Ferris Hardware, 220 N.W.2d 903 
 
            (Iowa 1974). The weight to be given to such an opinion is 
 
            for the finder of fact to determine from the completeness of 
 
            the premise given the expert or other surrounding circum
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            stances.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 
 
            867 (1965).  To establish compensability, the injury need 
 
            only be a significant factor, not be the only factor, caus
 
            ing the claimed medical condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
            
 
                 Pursuant to Iowa Code section 85.27, claimant is enti
 
            tled to payment of reasonable medical expenses incurred for 
 
            treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he 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, causal connection and reasonable
 
            ness were found.  As a matter of law, claimant is entitled 
 
            to reimbursement and/or payment of these expenses directly, 
 
            whichever is appropriate.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant the medical 
 
            expenses set forth in exhibits 10-19.  Claimant shall be 
 
            reimbursed for any of these expenses paid by him.  
 
            Otherwise, defendants shall pay the provider directly along 
 
            with any lawful late payment penalties imposed upon the 
 
            account by the provider.
 
            
 
                 2.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of March, 1992.
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Dennis M. McElwain
 
            Attorney at Law
 
            P O Box 1194
 
            Sioux City, Iowa  51102
 
            
 
            Mr. Richard G. Book
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-2505
 
                                          Filed March 24, 1992
 
                                          LARRY P. WALSHIRE
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JOSEPH P. BOYLE,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 468349
 
            W. A. KLINGER,                :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            MARYLAND CASUALTY COMPANY,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            5-2505 - Non-precedential, extent of medical benefits.
 
                      
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONNA CLARK ADAIR,
 
         
 
              Claimant,                              File No. 468417
 
         
 
         vs.                                           A P P E A L
 
         
 
         FURNAS ELECTRIC COMPANY,                    D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       FEB 22 1988
 
         AMERICAN MUTUAL LIABILITY
 
         INSURANCE COMPANY,                   IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         claimant permanent total disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing; claimant's exhibits A through J; 
 
         defendants' exhibits 1 through 8 and 10 through 20; and a joint 
 
         exhibit.  Only appellants have filed a brief on appeal.
 
         
 
                                     ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
                      I.  Deputy commissioner Ort should have recused 
 
              himself.
 
         
 
                     II.  As a matter of law, there is no causal 
 
              relationship between Adair's job injury in 1977 at Furnas 
 
              and Adair's disability resulting from her second tos 
 
              [thoracic outlet syndrome] episode.
 
         
 
                    III.  As a matter of law, there is no causal 
 
              relationship between Adair's job injury in 1977 at Furnas 
 
              and Adair's disability resulting from her third (and 
 
              current) tos episode.
 
         
 
                     IV.  Assuming, arguendo, that Adair's second and 
 
              third tos' are compensable, is the injury to the body as a 
 
              whole?
 
         
 
                      V.  Assuming, arguendo, that Adair's second and 
 
                                                
 
                                                         
 
                   third tos' are compensable, were the medical bills of Hines 
 
              and Toon authorized by defendants?
 
         
 
                     VI.  Assuming, arguendo, that Adair's second and 
 
              third tos' are compensable, did Adair act with willful 
 
              intent to injure herself?
 
         
 
                    VII.  Assuming, arguendo, that Adair's second 
 
              and,third tos' are compensable, is Adair entitled to 
 
              additional healing period benefits?
 
         
 
                   VIII.  Was Adair ever mentally disabled by her work at 
 
              Furnas?
 
         
 
                     IX.  Assuming, arguendo, that Adair's second and 
 
              third tos' are compensable, is Adair totally permanently 
 
              disabled?
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
              Briefly stated, claimant sustained a work injury on January 
 
         31, 1977 resulting in thoracic outlet syndrome, carpal tunnel 
 
         syndrome and an aggravation of a preexisting psychological 
 
         condition.  In an appeal decision filed September 14, 1982 
 
         defendants were ordered to pay a running award of healing period 
 
         benefits for claimant's psychological benefits.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                  ANALYSIS
 
         
 
              Defendants argue that remarks made by the deputy during an 
 
         offer of proof by defendants reveal that the deputy was biased 
 
         and prejudiced.  Review of the remarks which defendants consider 
 
         prejudicial (Vol III Transcript, pages 373-378) reveals nothing 
 
         which would suggest that the hearing was not fair and impartial. 
 
         The undersigned reviewed the voluminous record and re-reviewed 
 
         the voluminous record.  It is noted that the deputy allowed 
 
         defendants to proceed with their offer of proof.  Moreover, the 
 
         de novo review afforded defendants on appeal assures that the 
 
         findings of fact are fair.
 
         
 
              The review-reopening decision adequately and accurately 
 
         analyzes the other arguments presented by defendants on appeal 
 
         and it is adopted herein.
 
         
 
              The.findings of fact, conclusions of law and order of the 
 
         deputy are adopted herein.
 
                                                
 
                                                         
 
         
 
              1.  Claimant received an injury arising out of and in the 
 
         course of her employment on January 31, 1977.
 
         
 
              2.  The nature of the injury received by claimant was a 
 
         thoracic outlet syndrome, carpal tunnel syndrome, and a disabling 
 
         aggravation of a preexisting psychological condition.
 
         
 
              3.  On September 14, 1982 the industrial commissioner filed 
 
         a final agency decision requiring defendants to pay a running 
 
         award of benefits pursuant to section 85.34(1), The Code, because 
 
         of claimant's psychological disability.
 
         
 
              4.  In late 1983 or early 1984 defendants authorized Dr. 
 
         Hines to treat claimant's psychological disability.
 
         
 
              5.  Claimant recovered from her psychological disability in 
 
         July or August 1985.
 
         
 
              6.  By the time claimant recovered from her psychological 
 
         disability, claimant was suffering from a recurrent thoracic 
 
         outlet syndrome.
 
         
 
              7.  Claimant's recurrent thoracic outlet syndrome would not 
 
         have occurred but for the first thoracic outlet syndrome.
 
         
 
              8.  Defendants authorized Dr. Blessman to treat claimant's 
 
         injuries.
 
         
 
              9.  Dr. Blessman referred claimant to a number of different 
 
         physicians.
 
         
 
              10.  In February 1985 claimant was operated on for the 
 
         recurrent thoracic outlet syndrome.
 
         
 
              11.  The surgery performed in February 1985 was of urgent 
 
         character.
 
         
 
              12.  Defendants did not offer claimant alternative treatment 
 
         from that which had been recommended by Dr. Blessman and his 
 
         colleagues.
 
         
 
              13.  Defendants denied any liability for claimant's 
 
         recurrent thoracic outlet syndrome.
 
         
 
              14.  Claimant may need further surgery for thoracic outlet 
 
         syndrome in the future.
 
         
 
              15.  Claimant is not medically capable of returning to 
 
         gainful employment.
 
         
 
              16.  Claimant has been totally disabled since September 14, 
 
         1982 and will continue to be so for an indefinite period into the 
 
         future.
 
         
 
                                                
 
                                                         
 
              17.  Claimant has not achieved medical recovery from her 
 
         injury for nine years.
 
         
 
              18.  Claimant is credible and is well motivated to recover 
 
         from her injury.
 
         
 
              19.  Claimant has at no time made any misrepresentation of 
 
         material facts concerning this matter.
 
         
 
              20.  Claimant's physical and psychological condition would 
 
         not have improved without the treatment given by Dr. Blessman and 
 
         his colleagues.
 
         
 
              21.  Claimant's rate of compensation is $74.44.
 
         
 
              22.  Claimant did not willfully intend to injure herself.
 
         
 
              23.  Claimant is 27 years old, married, and has four 
 
         children.  She was single at the time of her injury.
 
         
 
              24.  As a result of her injury, claimant incurred the 
 
         following medical expenses which remain unpaid:
 
         
 
              a.  City of Des Moines                         $   75.00
 
              b.  Steven Adelman, D.O.                          200.00
 
 
 
                                  
 
                                                         
 
              c.  Osceola Drug                                  239.57
 
              d.  Todd Hines, Ph.D.                           2,400.00
 
              e.  Medical Center Anesthesiologists, P.C.        468.00
 
              f.  J. Song, M.D.                                  60.00
 
              g.  David Friedgood, D.O.                         200.00
 
              h.  Cardiac Surgery Associates, P.C.            2,000.00
 
              i.  Mercy Hospital Medical Center               4,473.40
 
              j.  Paul From, M.D.                               200.00
 
              k.  Clark Medical Center                           60.00
 
              l.  James Blessman, M.D.                           20.00
 
         
 
              25.  As a result of her injury, claimant has incurred 
 
         transportation expenses for medical treatment in the amount of 
 
         $1,410.96.
 
         
 
              26.  Claimant has incurred litigation expenses in the amount 
 
         of $57.95.
 
         
 
              27.  The medical expenses incurred by claimant are fair and 
 
         reasonable.
 
         
 
              28.  The medical expenses incurred by claimant were 
 
         reasonably necessary.
 
         
 
              29.  Claimant has not been underpaid weekly benefits.
 
         
 
              30.  As a result of her injury, claimant will continue to 
 
         require psychological treatment of a maintenance nature.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         she received an injury arising out of and in the course of her 
 
         employment on January 31, 1977.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         the proximate cause of her present disability is the work injury 
 
         of January 31, 1977.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         as a result of her work injury of January 31, 1977 she is 
 
         permanently and totally disabled for industrial purposes.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         the medical expenses incurred by her were causally connected to 
 
         her work injury of January 31, 1977; that they were reasonably 
 
         necessary for the treatment of her injury; that they were fair 
 
         and reasonable; and that she was authorized, within the meaning 
 
         of section 85.27, The Code, to incur those expenses.
 
         
 
              Defendants have failed to prove by a preponderance of the 
 
         evidence that claimant willfully intended to injure herself.
 
         
 
              WHEREFORE the decision of the deputy is affirmed.
 
         
 
                                                
 
                                                         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay unto claimant weekly compensation 
 
         benefits at the rate of seventy-four and 44/100 dollars (74.44) 
 
         commencing September 14, 1982 and continuing during the period of 
 
         claimant's disability pursuant to section 85.34(3).  Defendants 
 
         shall take credit for all weekly benefits paid to claimant 
 
         between September 14, 1982 and the date of this decision.
 
         
 
              That defendants shall pay claimant medical expenses as 
 
         outlined in paragraph 24 of the above findings of fact.
 
         
 
              That defendants shall pay unto claimant as reimbursement for 
 
         transportation expenses the sum of one thousand four hundred ten 
 
         and 96/100 dollars ($1,410.96).
 
         
 
              That defendants shall pay the costs of this action, 
 
         including fifty-seven and 95/100 dollars ($57.95) to claimant's 
 
         counsel for the deposition of Dr. Hines.
 
         
 
              That defendants shall file a claim activity report as 
 
         requested by this agency pursuant to Division of Industrial 
 
         Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 22nd day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa  50312
 
         
 
         Mr. W. N. Bump
 
         Mr. Richard E. Haesemeyer
 
         Attorneys at Law
 
         2829 Westown Parkway, Suite 100
 
         West Des Moines, Iowa  50265-1314
 
         
 
         
 
         
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402.40 - 1804
 
                                                Filed February 22, 1988
 
                                                DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONNA CLARK ADAIR,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         FURNAS ELECTRIC COMPANY,                      File No. 468417
 
         
 
              Employer,                                  A P P E A L
 
         
 
         and                                           D E C I S I 0 N
 
         
 
         AMERICAN MUTUAL LIABILITY
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1402.40 - 1804
 
         
 
              Deputy's finding that claimant was permanently and totally 
 
         disabled was adopted on appeal.
 
         
 
              Defendants' argument that the deputy should have recused 
 
         himself was rejected.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LANE L. CROSSON,
 
         
 
              Claimant,                            File No. 470570
 
         
 
         VS.                                        R E V I E W -
 
         
 
         FORMAN FORD AND COMPANY,                 R E O P E N I N G
 
         
 
              Employer,                            D E C I S I O N
 
         and
 
         
 
         IOWA NATIONAL MUTUAL INSURANCE
 
         COMPANY and IOWA INSURANCE
 
         GUARANTY ASSOCIATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Lane L. 
 
         Crosson, claimant, against Forman Ford and Company (Forman), 
 
         employer, and Iowa National Mutual Insurance Company/Iowa 
 
         Insurance Guaranty Association, insurance carrier, for additional 
 
         benefits as a result of an injury on April 26, 1977.  A hearing 
 
         was held in Ottumwa, Iowa, on January 14, 1987 on claimant's 
 
         review-reopening petition that was filed on November 15, 1984.  A 
 
         prior review-reopening hearing was held on October 30, 1980 
 
         regarding a petition filed on November 15, 1979.  The agency's 
 
         file establishes that a memorandum of agreement was filed herein 
 
         on June 14, 1977.  It was not necessary to show a change of 
 
         condition at the hearing held on October 30, 1980 merely because 
 
         a memorandum of agreement had been filed.  See Kevin R. Shoemaker 
 
         v. Adams Door Co., et al, (Appeal Decision, filed on August 30, 
 
         1985; affirmed by the Iowa District Court on June 23, 1986).  
 
         Defendants argue as follows on page 1 of their brief filed herein 
 
         on February 18, 1987: "It is important for the Deputy to recall 
 
         that this is the second Review-Reopening proceeding that the 
 
         claimant has brought in the same litigation.O (original 
 
         emphasis.)  However, it is not important for this deputy to 
 
         recall that this is the second review-reopening proceeding as no 
 
         change of condition showing was required at the first 
 
         review-reopening proceeding.  The second review-reopening 
 
         proceeding was fully submitted on January 14, 1987.
 
         
 
              The record consists of the testimony of claimant and Betty 
 
         Crosson; claimant's exhibits 1 through 6; and defendants' 
 
         exhibits A through J. Defendants' brief was filed on February 
 

 
         
 
         
 
         
 
         CROSSON V. FORMAN FORD AND COMPANY
 
         Page   2
 
         
 
         
 
         18, 1987.  The briefing period was extended by this deputy to 
 
         February 18, 1987.  The parties stipulated that claimant's 
 
         weekly rate of compensation is $160 and that the medical 
 
         benefits issue (Iowa Code section 85.27) was being withdrawn 
 
         and, therefore, this issue need not be decided by the hearing 
 
         deputy.
 
         
 
                                   ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether claimant has shown a physical change of 
 
         condition when his physical condition on October 30, 1980 (date 
 
         of first review-reopening hearing) is compared with his physical 
 
         condition on January 14, 1987 (date of second review-reopening 
 
         hearing); at the close of the hearing on January 14, 1987, 
 
         claimant's counsel on the record stated that claimant's sole 
 
         theory is a physical change of condition theory.  All other 
 
         theories are therefore waived as not asserted at the agency 
 
         level.  See, e.g., Klein v. Furnas Electric Co., 384 N.W.2d 370, 
 
         375 (Iowa l986); Armstrong v. State of Iowa Bldgs., 382 N.W.2d 
 
         161, 167 (Iowa 1986);
 
         
 
              2)  Whether there is a causal relationship between 
 
         claimant's injury and asserted additional impairment or 
 
         disability; at hearing, and in their brief, defendants argue that 
 
         claimant has not shown a change of condition, but if it is 
 
         determined that a physical change of condition has been shown, 
 
         that this change of condition is not causally related to the 
 
         work-related injury of April 26, 1977; defendants additionally or 
 
         alternatively argue that there is no causal relationship between 
 
         the injury of April 26, 1977 and claimant's alleged impairment or 
 
         disability.  Defendants conceded at hearing that their arguments 
 
         may overlap; and
 
         
 
              3)  Nature and extent of disability; claimant asserted the 
 
         odd-lot doctrine in this case at time of prehearing and at the 
 
         January 14, 1987 hearing.  Defendants argued at time of hearing 
 
         and in their brief that the odd-lot doctrine has no application 
 
         in this case for a number of reasons.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a brief summary of pertinent evidence 
 
         presented in this case.  All the evidence elicited or received on 
 
         January 14, 1987 was considered in arriving at this decision.  
 
         Much of the evidence elicited by claimant at hearing on January 
 
         14, 1987 was not relevant or material to any issue in this second 
 
         review-reopening proceeding.
 
         
 
              Exhibit 1, page 1 (dated September 24, 1984), is authored by 
 
         J. B. McCanville, M.D., and reads in part: "At this time he still 
 
         has constant pain radiating down the posterior aspect of the 
 
         right leg to the right calf." (Emphasis added.)
 
         
 
              Exhibit 1, page 2, reads in part:
 
         
 
              It is apparent that Mr. Crosson continues to have a 
 
              significant back problem characterized by spinal stenosis 
 

 
         
 
         
 
         
 
         CROSSON V. FORMAN FORD AND COMPANY
 
         Page   3
 
         
 
         
 
              with residual lumbar radiculopathy L5 to Sl despite two 
 
              previous back surgeries and failed attempts at relief by 
 
              various other treatment modalities.  He continues to have 
 
              significant pain, muscle spasm, limitation of motion of the 
 
              spine with appropriate radicular motor, sensory and reflex 
 
              changes such that he would appear to continue to be disabled 
 
              under category of impairments 1.05:  Disorders of the Spine 
 
              C.  Other Vertebrogenic Disorders (spinal stenosis). 
 
              (Emphasis added.)
 
         
 
              Exhibit 2 (dated September 24, 1984), is authored by 
 
         Lawrence J. Gralek, M.D., and reads in part: "Lane Crosson was 
 
         evaluated by me today because of low back pain with right leg 
 
         radiation.  It is felt that he has been totally disabled since 
 
         the original date of injury".   (Emphasis added.)
 
         
 
              Exhibit 4, page 3 (dated January 13, 1984), is authored by 
 
         Dr. Lehmann, and reads in part:
 
         
 
              The patient has been totally disabled since the time of his 
 
              original injury and currently perceives himself as totally 
 
              disabled and unable, at this point, to return to full 
 
              employment.  He has had (2) surgeries for lumbar disc 
 
              disease, with incomplete relief of his pain in the 
 
              lumbosacral level.  On examination today, he had a severely 
 
              antalgic gait, with absence of a right ankle jerk. (Emphasis 
 
              added.)
 
         
 
              Exhibit 6, page 3 (dated July 18, 1985), is authored by G. 
 
         Brian Paprocki, M.S., V.E., and reads in part:
 
         
 
                 And finally, Dr. Bakody, who performed both back 
 
              surgeries, suggested in an August 21, 1979 letter report 
 
              that any physical impairment rating "must be related to the 
 
              industrial capacity or lack thereof which in this case 
 
              appears to be 100 percent at this time."  He recommended a 
 
              referral to "Vocational Rehabilitation Services."
 
         
 
              Exhibit 3 is the letter of August 21, 1979 authored by John 
 
         T. Bakody, M.D., but this exhibit is incomplete because the
 
         
 
         
 
         person photocopying the letter cut off part of the words.  
 
         However, deposition exhibit 3 of exhibit F is intact and has all 
 
         of Dr. Bakody's language.
 
         
 
              Exhibit A, page I-1 (dated June 3, 1980), documents that 
 
         claimant's first back surgery (a laminectomy) was in September 
 
         1977 and was done by Dr. Bakody; claimant's second back surgery 
 
         also performed by Dr. Bakody was in December 1978.  Exhibit A, 
 
         page I-1 (dated June 3, 1980 ), is, authored by Martin Aronow, 
 
         M.D., and states in part after describing the two surgeries 
 
         mentioned above:
 
         
 
              He has been unable to obtain any relief from his pains, 
 
              however, and has been to Iowa City and sought other 
 
              opinions.  It is generally the consensus that nothing else 
 
              surgical can be done for this gentleman.  He presently 
 
              continued to have rather constant, and at times, quite 
 

 
         
 
         
 
         
 
         CROSSON V. FORMAN FORD AND COMPANY
 
         Page   4
 
         
 
         
 
              severe low back pains, which radiate into both legs with the 
 
              right leg pain being constant.
 
         
 
              Exhibit A, page II-1 (dated June 4, 1980), is authored by G. 
 
         Charles Roland, M.D., and reads in part: "The patient denies any 
 
         improvement from his second operation .... Today he states that 
 
         he has chronic low back pain."
 
         
 
              Exhibit A, page V-2 and 3 (dated June 3, 1980), is authored 
 
         by Kathy Beal, M.S.W., and reads in part:
 
         
 
              He related that he is beginning to worry more about his 
 
              physical condition because he has been feeling worse since 
 
              the first of the year and believes his condition is 
 
              worsening.
 
         
 
                 ....
 
         
 
              He indicated that he has no intention of doing any sort of 
 
              work because he feels he was too severely [sic] injured.
 
         
 
              Exhibit A, page VI-1 (dated June 4, 1980), is authored by 
 
         Todd Hines, Ph.D., and reads in part: "He sees himself as 
 
         completely disabled and it is very difficult for him to 
 
         conceptualize a future."
 
         
 
              Exhibit A, page VIII-1 (dated June 14, 1980), is authored by 
 
         Jane Muller-Hair, & reads in part:
 
         
 
              Mr. Crosson does not believe that he is capable of any 
 
              gainful employment.  He states, "I'll never be able to work 
 
              like I once did and to make the kind of money, that I used 
 
              to before I got hurt."  Lane is very determined that his 
 
              physical condition is understood by all parties involved.  
 
              He
 
         
 
              is reluctant [sic] to even consider full-time employment of 
 
              any type, because he is uncertain as to his day to day 
 
              medical status. (Original emphasis.)
 
         
 
              Exhibit A, page VIII-3, reads in part: "[H]e would probably 
 
         not be able to do any lifting of glass objects weighing over five 
 
         pounds."  Exhibit A, page VIII-4, reads in part: "Mr.  Lane 
 
         Crosson appears to be extremely doubtful of his physical ability 
 
         to resume full-time work of any kind." (Original emphasis.)
 
         
 
              Exhibit F is the deposition of Dr. Bakody taken on September 
 
         29, 1980.  Dr. Bakody first saw claimant on September 7, 1977 
 
         when he was admitted to Mercy Hospital in Des Moines.  On page 
 
         24, Dr. Bakody stated:
 
         
 
              Q.  When was your next visit after August the 8th, 1979?
 
         
 
              A.  This would have been October 5, 1979, when he indicated 
 
              that he was awfully miserable, and he was still showing 
 
              essentially the same findings.  And it was at this time that 
 
              I felt that he had a chronic pain problem, for which I 
 
              wasn't finding the answers, and suggested he go over and see 
 
              Dr. McDonnell, who is a neurosurgeon in the Department of 
 

 
         
 
         
 
         
 
         CROSSON V. FORMAN FORD AND COMPANY
 
         Page   5
 
         
 
         
 
              Neurosurgery at the University in Iowa City, and this was 
 
              arranged to be done.
 
         
 
              On page 29, the following exchange took place:
 
         
 
              Q.  Dr. Bakody, when you are referring to industrial 
 
              capacity of 100 percent, were you making references to this 
 
              former employment?
 
         
 
              A.  Primarily, yes, sir.
 
         
 
              On page 31, the following exchange is set out:
 
         
 
              Q.  And would you feel as if Mr. Crosson is likely to 
 
              improve substantially?
 
         
 
              A.  I would hope that he would or might, but I don't have 
 
              reasonable expectation that he will, and I think this is 
 
              really what they mean by maximum recovery, isn't it?
 
         
 
              Exhibit I is the transcript of the hearing held on October 
 
         301 1980.  Claimant stated on page 19:
 
         
 
              Q.  Explain to the Hearing Officer the type of activity that 
 
              causes you pain?
 
         
 
              A.  I don't have to have any particular activity.  I've got 
 
              constant pain regardless of whether I do anything or not.  
 
         
 
              But there is many times that I might get up in the morning 
 
              and I'm always under aggravation when I get up for an hour 
 
              or two.  I might get up, get in the car, and go two blocks 
 
              to the post office.  And by the time I get back, I'm so 
 
              miserable, I can't do nothing.
 
         
 
              Q.  Is your back sore now?
 
         
 
              A.  Absolutely sore.
 
         
 
              Q.  Can you walk without pain?
 
         
 
              A.  No.
 
         
 
              Q.  Can you stand without pain?
 
         
 
              A.  Nope, I can't, not any length of time.  I'm not talking 
 
              about any length of time.  I'm talking about five, ten 
 
              minutes.  That's it.  I enjoy talking to people, but if I 
 
              can't stand, I've got to lay down.  I just can't do it.
 
         
 
              Q.  Can you stand to sit for a long period of time?
 
         
 
              A.  No, I don't sit for over, probably, half an the most.  
 
              So I get up and move around.
 
         
 
              On page 20, the following testimony by claimant appears:
 
         
 
              Q.  Let me rephrase the question.  You have indicated how 
 
              you felt when you told the Hearing Officer about the day or 
 

 
         
 
         
 
         
 
         CROSSON V. FORMAN FORD AND COMPANY
 
         Page   6
 
         
 
         
 
              two after you tried to get out of bed in April of 1977.  Do 
 
              you recall that testimony?
 
         
 
              A.  Yes.
 
         
 
              Q.  Has your physical condition--how you felt--improved 
 
              since that day?
 
         
 
              A.  No. I would say, if anything, it would have deteriorated 
 
              because I went back to the doctors several times.  And I had 
 
              either physical therapy done on me to try to get rid of the 
 
              soreness and the pain or I've had other medications 
 
              prescribed to me.  If anything, I would say it 
 
              deteriorated.
 
         
 
              On page 22, the following testimony by claimant appears:
 
         
 
              Q.  Are you able to do any of that and have you been able to 
 
              do any of that since April 26, 1977?
 
         
 
         
 
              A.  I haven't been able to do it.  I can't hunt.  I can't 
 
              fish, which I enjoyed very much because I can't get around.  
 
              I've done some bowling--not a whole lot--but I can't do that 
 
              because I can't get around to do it.
 
         
 
              On page 24, claimant stated he could not return to glazier 
 
              work, the type of work he was doing on April 26, 1977.  On 
 
              page 25, claimant stated in part regarding shopping for 
 
              groceries "It kills me." On page 64, Betty Crosson stated:
 
         
 
              Q.  After the injury, what has he been able to do?
 
         
 
              A.  Very little.  Well, such as when it comes to winter 
 
              weather, if either one of the boys aren't around, it's me 
 
              that does the snow removal and so forth.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Lawyer and Higgs, Iowa Workers' Compensation-Law and 
 
         Practice, section 20-2, page 158 (1984), reads as follows with 
 
         the footnotes omitted:
 
         
 
                 The operative phrase in a review-reopening proceeding is 
 
              change of condition.*  The employee bringing the 
 
              review-reopening has the burden of establishing by a 
 
              preponderance of the evidence that the increased incapacity 
 
              on which he bases his claim is a result of the original 
 
              injury.*  The basis of a decision in a review-reopening is 
 
              the employee's condition subsequent to the time being 
 
              reviewed.  The change may be from temporary total disability 
 
              to permanent partial disability.*  It may also be a change 
 
              in degree of disability.*  A redetermination of the 
 
              condition of the claimant as it was adjudicated by a prior 
 
              award is inappropriate.*  A difference in expert opinion 
 
              regarding degree of impairment stemming from the original 
 
              injury is not sufficient justification for a different 
 
              determination by the commissioner.*  However, if there is 
 
              "substantial evidence of a worsening of condition not 
 

 
         
 
         
 
         
 
         CROSSON V. FORMAN FORD AND COMPANY
 
         Page   7
 
         
 
         
 
              contemplated at the time of the first award" a 
 
              review-reopening is justified.* (Emphasis added.)
 
         
 
              Claimant herein has clearly failed to establish a physical 
 
         change of condition by a preponderance of the evidence.  In fact, 
 
         the exhibits that claimant introduced at hearing on January 14, 
 
         1987 document that there has been no physical change of condition 
 
         between October 30, 1980 and January 14, 1987.  It would unduly 
 
         prolong this decision to repeat the medical evidence set out in 
 
         the "summary of the evidence" portion of this decision.  In sum, 
 
         there is no persuasive medical evidence of record to establish 
 
         the requisite change of condition and, therefore, it is 
 
         unnecessary to address the causal connection question set out at 
 
         the beginning of 
 
         
 
         
 
         this decision.  It is also unnecessary to reach the nature and 
 
         extent of disability issue, which includes the question of 
 
         whether the odd-lot doctrine applies in this proceeding.
 
         
 
              Given the evidence of record, it is also concluded that 
 
         claimant should pay all the costs of this proceeding.  The change 
 
         of condition issue is not a close one.  In effect, claimant in 
 
         this proceeding is merely collaterally attacking to the prior 
 
         award of 35 percent, or asking this hearing deputy to exercise 
 
         appellate jurisdiction to modify or reverse the prior award of 35 
 
         percent industrial disability.  The applicable statutes do not 
 
         authorize this deputy, given the record in this case, to award 
 

 
         
 
         
 
         
 
         CROSSON V. FORMAN FORD AND COMPANY
 
         Page   8
 
         
 
         
 
         more permanency benefits than the 175 weeks previously awarded as 
 
         a physical change of condition has not been shown.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant injured his back on April 26, 1977 while 
 
         working for Forman Ford and Company.
 
         
 
              2.  Claimant had back surgery in September 1977 performed by 
 
         Dr. Bakody.
 
         
 
              3.  Claimant had another back surgery in December 1978 
 
         performed by Dr. Bakody.
 
         
 
              4.  Claimant was not physically able to do glazier work on 
 
         October 30, 1980.
 
         
 
              5.  Claimant was not physically able to do glazier work on 
 
         January 14, 1987.
 
         
 
              6.  On October 30, 1980, claimant was experiencing pain 
 
         because of his low back condition.
 
         
 
              7.  on January 14, 1987, claimant was experiencing pain 
 
         because of his low back condition.
 
         
 
              8.  On October 30, 1980, claimant had considerable 
 
         difficulty engaging in any physical activity because of the 
 
         condition of his back.
 
         
 
              9.  On January 14, 1987, claimant had considerable 
 
         difficulty engaging in any physical activity because of the 
 
         condition of his back.
 
              10.  Claimant's physical condition was the same on October 
 
         30, 1980 as compared with January 14, 1987.
 
         
 
         
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant failed to establish the requisite change of 
 
         condition by a preponderance of the evidence.
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              Signed and filed this 26th day of February, 1987.
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         CROSSON V. FORMAN FORD AND COMPANY
 
         Page   9
 
         
 
         
 
                                           T. J. McSWEENEY
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harold Heslinga
 
         Attorney at Law
 
         118 North Market Street
 
         Oskaloosa, Iowa 52577
 
         
 
         Mr. Dennis Hanssen
 
         Mr. E. J. Kelly
 
         Attorneys at Law
 
         1040 Fifth Ave
 
         Des Moines, Iowa 50314
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                        2905
 
                                                        File 2-26-87
 
                                                        T. J. McSweeney
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LANE L. CROSSON,
 
         
 
               Claimant,                               File No. 470570
 
         
 
         VS.                                            R E V I E W -
 
         
 
         FORMAN FORD AND COMPANY,                     R E O P E N I N G
 
         
 
               Employer,                               D E C I S I O N
 
         
 
         and
 
         
 
         IOWA NATIONAL MUTUAL INSURANCE
 
         COMPANY and IOWA INSURANCE
 
         GUARANTY ASSOCIATION,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2905
 
         
 
              Held in review-reopening that claimant failed to show change 
 
         of condition by a preponderance of the evidence.
 
         
 
              Claimant injured his back on April 26, 1977.  A hearing was 
 
         held on October 30, 1980 and a determination of 35 percent 
 
         industrial disability was made by the hearing deputy.  A hearing 
 
         on claimant's review-reopening petition was held on January 14, 
 
         1987 and it was determined that claimant failed to establish a 
 
         physical change of condition.  Claimant's only theory at hearing 
 
         on January 14, 1987 was a physical change of condition.