BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TERRY W. GRIFFIN,                           File No. 603461
 
         
 
              Claimant,                               R E V I E W -
 
         
 
         vs.                                        R E O P E N I N G
 
         
 
         EATON CORPORATION,                          D E C I S I O N
 
         
 
              Employer,                                 F I L E D
 
              Self-Insured,
 
              Defendant.                               APR 20 1988
 
         
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by the 
 
         claimant, Terry W. Griffin, against his self-insured employer, 
 
         Eaton Corporation, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of an injury sustained on February 
 
         19, 1979.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner at Storm Lake, Iowa on November 
 
         10, 1987.  A first report of injury was received on July 17, 1979 
 
         as was a memorandum of agreement.  At hearing, the parties 
 
         stipulated that claimant has been paid 100 weeks of permanent 
 
         partial disability.  The parties stipulated that claimant has 
 
         received all temporary total or healing period disability 
 
         benefits to which claimant is entitled.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, of Brenda Rae Griffin, of Ron Sanow and of Linda 
 
         Maurer, R.N., as well as of claimant's exhibits A through Y and 
 
         defendant's exhibits 1, 2 and 3.  All objections to exhibits are 
 
         overruled.
 
         
 
                                     ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation is $134.38; that 
 
         claimant's medical expenses reflect fair and reasonable charges 
 
         for reasonable and necessary medical treatment; and, that a 
 
         causal relationship exists between claimant's injury and a 
 
         permanent partially disabling condition.  The issues remaining 
 
         for resolution are:
 
         
 
              Whether claimant is entitled to benefits and the nature and 
 
         extent of any benefit entitlement, including the related question 
 
         of whether claimant is an odd-lot worker under the Guyton 
 
         doctrine and the question of the commencement date of any 
 
         permanent partial disability due claimant; and,
 
                                                
 
                                                         
 
         
 
              Whether claimant is entitled to payment of medical costs 
 
         under section 85.27.  As regards the latter issue, claimant 
 
         requests that the employer be ordered to pay for myelogram under 
 
         the direction of Thomas A. Carlstrom, M.D.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant is 30 years old and a high school graduate.  He has 
 
         no other formal training and has had no military service.  
 
         Claimant worked as a tire changer and mechanic and in constructing 
 
         steel storage sheds prior to beginning work at Eaton Corporation 
 
         in August, 1978.  Eaton is a manufacturer of hydraulic 
 
         transmissions. Claimant initially worked as an LD transmission 
 
         tester.  He ran transmissions through a testing machine.  Claimant 
 
         lifted individual transmissions weighing from 25 to 35 pounds each 
 
         onto the testing machine, approximately 100 per night.  Claimant's 
 
         starting pay at Eaton was approximately $5.60-$5.70 per hour. 
 
         Claimant was earning $8.50 per hour in 1982 at Eaton.  Claimant 
 
         now earns $5.80 per hour working as a concrete and masonry 
 
         assistant for his mother's cousin.  Subsequent to his Eaton 
 
         injury, claimant also worked for approximately four months as a 
 
         temporary route truck driver for United Parcel Service.  He earned 
 
         $9.40 per hour in that position.  Claimant reported that the 
 
         United Parcel delivery job required lifting of not over 60 pounds 
 
         with much lifting of under 10 pounds.  He indicated that he was 
 
         able to get along, but that the lifting he did do bothered him.  
 
         Also, subsequent to his injury, claimant worked part-time driving 
 
         livestock in a sale barn.  His left leg easily tired in that work. 
 
         Claimant worked briefly as a bottle sorter for a soft drink 
 
         distributing company.  Lifting empty cases bothered him some, but 
 
         not a lot; he earned $3.60 per hour.  Claimant has also been a 
 
         part-time school bus driver, driving one hour to an hour and a 
 
         half per day.  Claimant could handle that position.  Claimant has 
 
         plowed, disced and cultivated on his parents' farm operation since 
 
         his injury.
 
         
 
              Claimant works approximately 47-55 hours per week on his 
 
         masonry construction job.  Claimant stated that he is looking for 
 
         work which is lighter than the masonry construction job, but has 
 
         been unable to find such.  Claimant draws unemployment 
 
         compensation during the winter.  He denied that he has made most 
 
         of his job applications during that season, however.
 
         
 
              Claimant was injured on February 19, 1979 while moving parts 
 
         with a forklift.  He jumped off the forklift into an oil spill, 
 
         caught himself, but injured his back.  He was initially seen by 
 
         A. C. Rice, M.D., who treated the condition as a muscle strain. 
 
         Claimant reported a light-duty work return on the deburring bench 
 
         until July 3, 1979 when William Follows, M.D., an orthopaedic 
 
         surgeon, took him off work.  On July 9, 1979, claimant saw Albert 
 
         D. Blenderman, M.D., for a second opinion.  Surgery was 
 
         subsequently performed on August 27, 1979.  Claimant returned to 
 
         light-duty work on the deburring bench on November 15, 1979 and 
 
         apparently worked there until a layoff in March or April, 1980. 
 
                                                
 
                                                         
 
         Claimant testified that Dr. Follows assigned him a 10% permanent 
 
         partial impairment rating which Eaton paid as 10% permanent 
 
         partial disability.  Claimant was called back to Eaton in either 
 
         August or October, 1980.  He reported that, per Dr. Follows, he 
 
         was unable to bend and could lift only from 35-45 pounds.  He 
 
         worked running an Allan drill on the day shift.  Claimant 
 
         testified that he had a resurgence of symptoms in fall, 1980 with 
 
         leg numbness and quivering as well as numbness in the groin area. 
 
         He reported that he bid for his injury date job of smoothing 
 
         transmissions outside and inside.  He received the job in late 
 
         1981 or early 1982.  He could handle that job without increased 
 
         difficulty.  Claimant subsequently worked as a heavy duty end 
 
         cover deburrer in 1982 prior to a second layoff.  Claimant 
 
         testified that this job bothered his back as it involved 
 
         increased bending and heavier lifting.  He reported severe low 
 
         back pain and what felt like a pulled muscle in the right leg.  
 
         Claimant continued in either the honing job or the deburring job 
 
         until a July, 1982 Eaton layoff.  Claimant has not worked for 
 
         Eaton since that layoff.
 
         
 
              Claimant reported that, per Dr. Follows' direction, he saw 
 
         Keith McLarnan, M.D., on August 2, 1982 and underwent a CT scan 
 
         on August 9, 1982.  Subsequent to interpretation of the CT scan, 
 
         chymopapain injection was suggested.  The Eaton Corporation did 
 
         not allow the procedure.  Claimant indicated that Dr. Follows 
 
         then increased his permanent partial impairment rating "to 10 
 
         percent." Eaton subsequently paid claimant an additional ten 
 
         percent permanent partial disability.  Defendant's objections to 
 
         hearsay testimony concerning conversations with the personnel 
 
         manager are sustained.
 
         
 
              Claimant testified that, in 1983, Eaton was recalling 
 
         people. Claimant reported that his number [as to seniority] was 
 
         passed. Claimant reported that, after persons with lower 
 
         [seniority] numbers were rehired, he contacted Eaton, but 
 
         continued to be passed over.  Claimant attributed the passover to 
 
         a decision made by the previous personnel manager.  Claimant 
 
         denied that he had ever given up recall privileges at Eaton.
 
         
 
              Claimant stated that his present employer was aware of his 
 
         "20 percent disability" and his inability to do heavy lifting 
 
         when they hired him.  Claimant reported that he has had 
 
         increasing problems with numbness in the groin area in the past 
 
         year.  He reported sharp pain in the back of his right leg.  
 
         Claimant reported that sweeping, lawn mowing, auto mechanic work 
 
         and moving concrete produce problems for him.  Claimant asserted 
 
         that sitting produces groin area numbness and testicle pain.  
 
         Claimant reported that, as a masonry assistant, he wheels and 
 
         levels cement and must bend over at times.  He must be on his 
 
         hands and knees.  He reported that the bending as well as being 
 
         on his hands and knees creates right leg and groin numbness.  
 
         Claimant indicated that he lifts by pushing himself up with one 
 
         hand while lifting with the other.  Claimant reported that he can 
 
         move a 35-pound cement block from a table or can lift up to 50 
 
         pounds from table height throughout the day without problems.  He 
 
                                                
 
                                                         
 
         opined that he could lift approximately 10 pounds from a 
 
         bent-over position.  Claimant testified that he has had 
 
         increasing quivering in his legs, particularly the right leg, in 
 
         the last several years.  Claimant can drive approximately 100-150 
 
         miles before needing to stop and walk about.  Claimant reported 
 
         difficulty bending over the bathtub to wash his five-year-old 
 
         child's hair.  Claimant apparently has a 20-pound lifting 
 
         restriction from Dr. Follows as well as restrictions on 
 
         repetitive bending and stooping.  Claimant agreed that he has 
 
         lifted greater than 20 pounds in order to continue working.  
 
         Claimant agreed that exhibits 2 and 3 are photos of claimant 
 
         working at the Eaton plant in July, 1985 removing concrete.  He 
 
         agreed that, in exhibit 2, he is rolling a piece of concrete to a 
 
         bobcat.  Claimant opined that the weight of the concrete would be 
 
         approximately 45-50 pounds and stated that exhibit 3 was a photo 
 
         of some of the heaviest work he has done for his present 
 
         employer.
 
         
 
              Claimant denied that he had twisted his back when he stepped 
 
         in a hole in September, 1983 asserting he had twisted his ankle, 
 
         but not his back at that time.  Claimant agreed, however, that he 
 
         has twisted his back a number of times since his employment with 
 
         Eaton and stated he assumed he had gone to the chiropractor 
 
         following such.  Claimant reported that he had seen a Dr. 
 
         Pringle, a chiropractor, the last two or three months for 
 
 
 
                           
 
                                                         
 
         his.upper back, but claimant denied that Dr. Pringle had treated 
 
         his lower back reporting that Dr. Pringle has refused to touch 
 
         his low back since his surgery.
 
         
 
              Claimant agreed that he last saw Dr. Follows in 1982 and that 
 
         he initially saw J. R. Peterson, D.O., in February, 1985.  
 
         Claimant reported that he had seen L. F. Frink, M.D., in between 
 
         treatment with Dr. Follows and Dr. Peterson.  Claimant reported 
 
         that he saw Thomas Carlstrom, M.D., on referral of Dr. Peterson.  
 
         Dr. Carlstrom apparently suggested a CT scan and myelogram.  
 
         Claimant had no health insurance and was unable to pay for such.  
 
         Claimant could not recall whether Dr. Carlstrom had recommended an 
 
         epidural steroid injection, but reported that he was willing to 
 
         undergo any testing or surgical procedure that his doctors felt 
 
         was appropriate.
 
         
 
              Brenda Rae Griffin, claimant's wife since 1976, 
 
         substantiated claimant's testimony regarding his life activity 
 
         restrictions and identified medical costs with Dr. Peterson in 
 
         evidence as related to claimant's work injury.
 
         
 
              Ron Sanow, floor supervisor for Eaton Corporation, reported 
 
         that he had observed claimant working outside the plant in July, 
 
         1985.  Mr. Sanow reported that claimant was then carrying and 
 
         rolling cement blocks weighing from 35 to 40 pounds.  He reported 
 
         that claimant performed the job for several days.
 
         
 
              Linda Maurer, occupational health nurse at Eaton Corporation 
 
         since November, 1981, reported that, in November, 1982, per Dr. 
 
         Follows, claimant was restricted to 20 pounds lifting with no 
 
         repetitive bending or stooping.  She testified that, in 1985, 
 
         claimant's man number was reached for recall, but that no 
 
         positions were then available within claimant's restrictions.  
 
         She testified that this was the sole reason claimant was not 
 
         returned to work.  Ms. Maurer reported that, on July 25, 1985, 
 
         the Eaton Corporation referred claimant to Robert R. Giebink, 
 
         M.D., who assigned claimant a 20% body as a whole "disability" 
 
         which she stated that Eaton had already paid in 1983.  Maurer 
 
         reported that she had observed claimant tearing up cement outside 
 
         the plant on July 22, 1985.  She reported that claimant was then 
 
         lifting "way beyond" Dr. Follows' restrictions and was not using 
 
         proper body mechanics.  She reported that she has observed 
 
         claimant working at home doing construction, lifting, bending, 
 
         stooping and picking up chunks of cement which she believed 
 
         exceeded Dr. Follows' restrictions.  She reported having further 
 
         observed claimant working on an eye clinic job, also lifting 
 
         beyond 20 pounds.
 
         
 
              On December 8, 1986, Jeffrey R. Peterson, D.O., noted that, 
 
         subjectively, claimant continued to have low back discomfort, 
 
         constant in nature, but sometimes much worse.  He stated that, 
 
         with activity, claimant noticed progressive weakness, numbness and 
 
         tingling in the right lower extremity, especially that fall after 
 
         attempting to hunt pheasant.  Claimant continued to be unable to 
 
         lift any weight of more than 40 pounds on a repetitive basis  Such 
 
                                                
 
                                                         
 
         lifting caused low back pain which felt like claimant had been 
 
         beaten with a hammer.  He had a sensation of swelling and pain in 
 
         the right lower extremity with some intermittent left leg 
 
         discomfort.  Claimant continued to have numbness and tingling 
 
         sensation about the groin and inner thighs, but denied any 
 
         weakness sensation in the left lower extremity.  Claimant was 
 
         using Motrin on a PRN basis for the pain in the low back and the 
 
         right lower extremity.  When questioned regarding the condition of 
 
         his back and leg at that point as compared to a year earlier, 
 
         claimant stated that overall there had been no improvement and, in 
 
         fact, his activity may have been more limited than before.  
 
         Claimant stated that he could not get on his hands and knees and 
 
         trowel cement and that he noticed discomfort when sitting during 
 
         breaks at work.  At those times, he would get severe back pain 
 
         associated with numbness, tingling and pain in the right lower 
 
         extremity.  Claimant was having occasional electric-like pains 
 
         down the right lower extremity as well.  On physical examination, 
 
         claimant had increased lordosis in the lumbar region with moderate 
 
         lumbar paravertebral muscle spasms, right more than left.  There 
 
         was some obvious atrophy of the right hamstrings.  Claimant was 
 
         able to walk equally well on both toes.  Claimant was markedly 
 
         weak on the right heal with early fatigue.  Claimant had only 
 
         minimal restriction of flexion and full extension on range of 
 
         motion testing of the lumbar spine with right and left lateral 
 
         flexion limited by five to ten degrees in each direction.  
 
         Rotational movements in the lumbar spine were limited by 
 
         approximately 10 degrees both to the right and to the left.  The 
 
         right Achilles reflex was diminished at plus one-fourth dash four 
 
         with the left plus one negative two slash four.  There was no 
 
         ankle clonus; plantar reflexes were normal. Straight leg raising 
 
         was positive at 70 degrees on the right; negative to 80 degrees on 
 
         the left.  The diagnoses were of persistent right lower extremity 
 
         and back discomfort following an L5-S1 laminectomy and probable 
 
         recurrent herniated disc at L5-S1 on the right as well as 
 
         persistent neurologic changes in the right lower extremity 
 
         including sensory changes and motor weakness, especially the right 
 
         hamstrings.
 
         
 
              On April 30, 1985, Dr. Peterson had opined that claimant 
 
         then had a greater limitation of function and activity as well as 
 
         fewer opportunities for gainful employment than he had had in 
 
         1982 when last evaluated for disability.  The doctor cited 
 
         numerous examples of a worsening of claimant's condition, 
 
         including additional left-sided pain at all times.  The doctor 
 
         stated that claimant reported that his right side still bothered 
 
         him as before, but he continued to have more problems in the left 
 
         back.  The doctor reported that, two years earlier [1983], 
 
         claimant was able to bale hay and scoop manure for extended 
 
         periods of time, but currently [1985] was unable to scoop manure, 
 
         except for very short periods.  Claimant was unable to sit for 
 
         more than a few minutes as he had increased low back pain with 
 
         prolonged sitting and he was no longer able to lift up to 40 
 
         pounds for more than a very short time without increased low back 
 
         pain.  Dr. Peterson then opined that, if claimant had had a 20% 
 
         permanent partial "disability" in 1985, he should be reevaluated 
 
                                                
 
                                                         
 
         as, in the doctor's estimation, he had a 10-20 percent greater 
 
         impairment in 1985 than he had had previously.
 
         
 
              In his deposition taken December 9, 1986, Dr. Peterson 
 
         stated that he had not seen any records of left-sided pain or 
 
         discomfort prior to his examination of claimant in February, 
 
         1985.  The doctor again opined that claimant's subjective 
 
         symptoms regarding back pain, left leg pain and right leg pain 
 
         were getting worse in 1985 as compared to two or three years 
 
         earlier, that is, at the time of Dr. Giebink's examination in 
 
         1983.  The doctor related claimant's continuing subjective 
 
         complaints and findings to his 1979 injury.  He felt that 
 
         claimant had developed new or additional symptoms which were an 
 
         aggravation of his underlying problem.  Dr. Peterson opined that 
 
         he had referred claimant to Dr. Carlstrom as he felt claimant 
 
         deserved further work-up and neurosurgical opinion for his low 
 
         back problems.  The doctor stated that claimant had had a CT scan 
 
         which suggested recurrent ruptured disc and was having a 
 
         difficult time finding satisfactory employment as well as 
 
         continuing to have problems.  He stated that, if something 
 
         further could be done to better his situation, it should be 
 
         pursued.  Dr. Peterson characterized Dr. Carlstrom's letter as 
 
         reporting that claimant needed a CT scan and a myelogram to 
 
         define further definitive treatment.
 
         
 
              Dr. Peterson reported that there were some very minor 
 
         differences between his findings on examination on December 8, 
 
         1986 and the findings of Dr. Giebink in September, 1983.  He 
 
         reported that claimant's range of motion testing was a little 
 
         better when examined in 1986 than when examined by Dr. Giebink. 
 
         Rotational movements were a little worse "at this time" than in 
 
         June, 1985.  The doctor did not recall any significant 
 
         differences of opinion in sensory testing.  Dr. Peterson opined 
 
         that, if claimant did have a recurrent ruptured disc on the right 
 
         at L5-S1, definite benefit would likely result from laminectomy 
 
         or discectomy.
 
         
 
              On July 18, 1986, Dr. Follows opined that claimant had a 
 
         permanent "disability" of 10%.  He then opined that claimant 
 
         should avoid heavy lifting as well as repeated lifting, bending 
 
         or stooping.  On November 29, 1982, Dr. Follows restricted 
 
         claimant from lifting more than 20 pounds and from repetitive 
 
         bending or stooping.  On July 19, 1982, Dr. McLarnan recommended 
 
         a CT scan at the L5 to S3 nerve root distribution and reported 
 
         that there was some evidence at that time of an S2 and S3 sensory 
 
         component.  He was unable to explain why claimant's entire leg 
 
         felt swollen or distended.  On sensory exam, sharp sensation was 
 
         diminished on the S2 distribution of the right posterior thigh.  
 
         The S3 distribution on the buttocks was not diminished which was 
 
         in the same dermatone as the penis.  Earlier, Dr. McLarnan had 
 
         noted that, originally in association with the swollen leg 
 
         feeling, claimant had a sensation of numbness and tingling in the 
 
         penis.  At the time of examination, the leg or penile discomfort 
 
         could be independent of each other.  Claimant was having no 
 
         difficulty with starting and stopping of the urinary stream and 
 
                                                
 
                                                         
 
         was having no problems with erections or ejaculations.  On August 
 
         17, 1982, Dr. McLarnan opined that a CT scan performed August 11, 
 
         1982 suggested some residual disc material on the right side at 
 
         L5-S1.  He reported that views of the foraminal outlets taken 
 
         because of claimant's S2 complaint revealed no encroachment in 
 
         those regions.  On August 30, 1982, Kenneth B. Heithoff, M.D., a 
 
         board-certified radiologist, interpreted the August 11, 1982 CT 
 
         scan as showing no evidence of significant epidural fibrosis 
 
         following previous laminectomy at L5-S1 on the right side, but as 
 
         having evidence of a mass effect anterior to the S1 nerve root on 
 
         the right.  He reported swelling of the S1 nerve root below this 
 
         mass effect. Dr. Heithoff opined that the most likely diagnosis 
 
         was of recurrent herniated disc at L5-S1 on the right.  He 
 
         suggested a Metrizamide enhanced CT scan which would identify the 
 
         position of the S1 nerve root with certainty.
 
         
 
              On November 18, 1981, Dr. Follows had reported that, two or 
 
         three times over the last year, claimant had gotten numbness into 
 
         the left leg and groin, including his penis area, usually when 
 
         sitting in a peculiar position like on a toilet stool or sitting 
 
         cross-legged.
 
         
 
              On September 9, 1983, Dr. Follows opined that claimant had a 
 
         "20 percent permanent disability" on the basis of his back 
 
         problem.  He reported that such represented a reaggravation and a 
 
         continuation of his previous injury and not a new, entirely 
 
         different injury.
 
         
 
              Dr. Giebink, an orthopaedic surgeon, examined claimant on 
 
         June 25, 1985.  He reported present complaints of pain in the 
 
         lower back, cramping pain in the legs, and intermittent numbness 
 
         involving both legs on the posterial lateral aspect of the calf 
 
         with muscles seeming to quiver a lot.  Claimant reported that it 
 
 
 
                           
 
                                                         
 
         did not seem to make much difference whether he sat, stood, 
 
         walked or worked.  Walking and driving produced the most 
 
         trouble; coughing and sneezing sometimes aggravated the 
 
         condition. Claimant reported that his back felt pretty stiff in 
 
         the morning, but limbered up as he got going.  He reported 
 
         getting through the day okay, but aching a lot in the evening.  
 
         Claimant slept on a waterbed and reported that he slept "pretty 
 
         good."  On physical examination, motion of the lower back was 
 
         mildly restricted with claimant able to reach about three inches 
 
         from the floor with his knees extended.  Claimant could forward 
 
         flex to about 75 to 80 degrees; extension and side bending were 
 
         restricted about five degrees with pain on bending to the right 
 
         side.  Rotation was also mildly restricted.  The right thigh, 
 
         five inches above the patella, measured one-half inch smaller in 
 
         circumference than the left thigh.  Right and left calf each 
 
         measured about 17 inches in circumference.  Patellar reflexes 
 
         were brisk and equal.  The right Achilles reflex was reported as 
 
         present, but reduced.  The right Achilles reflex being about one 
 
         plus with the left Achilles reflex about two plus.  Testing for 
 
         strength on the left foot was normal with the right foot showing 
 
         slight but definite weakness of the dorsiflexor muscles of the 
 
         right foot, particularly the peroneal muscle group.  Claimant 
 
         had diminished sensation to pin prick over the lateral side of 
 
         his right heel and foot, posterial lateral aspect of his right 
 
         calf and the lateral aspect of his right thigh.  Similar, but 
 
         not nearly as marked findings were present on the left side.  
 
         Straight leg raising was free on the left side, but limited to 
 
         about 80 degrees with pain and pulling on the back on the right 
 
         side.  Lumbar lordosis was present.
 
         
 
              Dr. Giebink reported that claimant would not be able to 
 
         return to heavy work and would always be restricted in lifting, 
 
         stooping, shoveling and like activities.  He reported the usual 
 
         lifting limitation as about 25-30 pounds with occasional lifting 
 
         of 50-60 pounds if using the back straight and if using the 
 
         knees. The doctor opined that claimant could not return to the 
 
         work he was doing at the time of his injury as that involved 
 
         considerable heavy work.  He reported he could return to work in 
 
         a lighter capacity.  He felt that claimant had a 20% impairment 
 
         of function of his whole body as the result of the injury and 
 
         subsequent disc surgery.
 
         
 
              On October 8, 1987, Dr. Carlstrom reported that he had seen 
 
         claimant in his office on October 1, 1987.  He reported that 
 
         claimant had radicular symptoms on the right, relating principally 
 
         to the S-1 nerve root and that it was conceivable that he may have 
 
         a lesion in the low back which could be fixed with laminectomy.  
 
         He felt claimant needed a myelogram for decent definition of the 
 
         lesion.  Dr. Carlstrom did not believe that a CT scan would be 
 
         helpful.  Dr. Carlstrom reported claimant's alternative to 
 
         surgical intervention was simply "to live with it."  He reported 
 
         claimant had been doing fairly well for the last year or two and 
 
         probably could do so into the future.  Dr. Carlstrom opined that 
 
         claimant's symptoms would be considerably reduced with activity 
 
         restriction, particularly restrictions on heavy exertion and heavy 
 
                                                
 
                                                         
 
         lifting.  The doctor thought that surgery was a reasonable 
 
         approach and that claimant's symptoms may improve, but that more 
 
         information was needed before pursuing that further.  Dr. 
 
         Carlstrom reported that he had "mentioned" epidural steroid 
 
         injection to claimant.
 
         
 
              On January 22, 1986, Dr. Carlstrom felt that, while claimant 
 
         could have recurrent radiculopathy and perhaps might benefit from 
 
         a reoperation, he mostly likely had myofascial symptoms which 
 
         should be treated conservatively.
 
         
 
              At various times, Dr. Peterson, Dr. McLarnan and Dr. 
 
         Carlstrom recommended that claimant lose weight as a means of 
 
         potentially improving his physical condition.
 
         
 
              Claimant's exhibit X is an unsigned agreement bearing a 
 
         space for claimant's signature as well as that of S. E. Shepard 
 
         and Linda Maurer stating that claimant agrees to give up recall 
 
         privileges at Eaton Corporation's Spencer, Iowa plant effective 
 
         on the date of the signed agreement.  The agreement initially 
 
         stated that, upon payment of 10% permanent partial disability 
 
         settlement, claimant would release Eaton Corporation from all 
 
         future liability regarding injuries sustained while employed at 
 
         Eaton from August 21, 1978 through November 29, 1982.  Claimant's 
 
         exhibit Q is a typed listing of job applications made since 1983.  
 
         Forty-one entries from 1983 through September, 1987 are listed.  
 
         A number of entries represent reapplications with the same 
 
         potential employer. Claimant's exhibit S is a series of charges 
 
         with R. K. Peterson, D.O.  It was agreed at hearing that a charge 
 
         of $17.00 for an office call of February 27, 1987 was not related 
 
         to claimant's injury.  An office call of April 16, 1987 with a 
 
         charge of $17.00 relates a first diagnosis of baker's cyst, right 
 
         knee and a second diagnosis of right lumbar radiculopathy.  Four 
 
         charges for blood pressure and weight check at $5.00 each are 
 
         also listed as are two telephone consultations for $3.00 each for 
 
         pain medication prescriptions.  Office calls of August 21, 1986, 
 
         September 8, 1986 and September 21, 1987 relate to right 
 
         sciatica, or probable recurrent ruptured disc at L5-S1 on the 
 
         right.  Each such office call carries a charge of $17.00. 
 
         Claimant's exhibit T is a statement of Dr. Carlstrom for a 
 
         neurological exam of January 16, 1986 for $65.00 and was 
 
         apparently paid on March 10, 1986.  An office call of October 1, 
 
         1987 with a charge of $40.00 remains outstanding.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              A memorandum of agreement settles the question of employment 
 
         relationship and the question of whether the injury arose out of 
 
         and in the course of the employment.  Claimant is not required to 
 
         prove a change of condition after the filing of the memorandum of 
 
         agreement, but is required to prove that increased disability for 
 
         which no compensation has been paid was proximately caused by the 
 
         injury.  Caterpillar Tractor Company v. Mejorado, 410 N.W.2d 675 
 
         (Iowa 1987).
 
         
 
                                                
 
                                                         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 19, 1979 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              No competent physician has opined that claimant's current 
 
         condition does not relate back to his original injury.  Indeed, 
 
         Dr. Giebink and Dr. Peterson both have related claimant's more 
 
         recent condition to the original injury.  Claimant has testified 
 
         that he has twisted his back on occasion since his original 
 
         injury.  No evidence of new back incident was present, however. 
 
         One, therefore, assumes that whatever 'twisting' incidents 
 
         occurred were simply symptomatic aggravations of claimant's 
 
         underlying condition and were not new injuries.  The medical 
 
         evidence establishes that increased disability claimed is 
 
         proximately caused by the original injury.  We therefore consider 
 
         the benefit entitlement question.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251.  
 
         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.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
                                                
 
                                                         
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  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.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         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, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
 
 
                         
 
                                                         
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden v. Big Ben Coal 
 
         Co., supra.
 
         
 
              Claimant is a high school graduate.  He has no other 
 
         training. Claimant is 30 years old and his latest impairment 
 
         rating suggests a 20% permanent partial impairment.  Various 
 
         doctors have issued various restrictions.  Generally, however, 
 
         claimant is restricted to lifting no more than 20 to 30 pounds and 
 
         has restrictions on repetitive bending, stooping, lifting, 
 
         shoveling and like activities.  Claimant's prior work experience 
 
         has all been in manual labor.  He testified to a variety of jobs 
 
         which he has held since his injury, some of which were apparently 
 
         beyond his limitations.  Claimant's employer has not recalled him.  
 
         The employer stated they did not recall claimant because they did 
 
         not have work within claimant's restrictions.  Dr. Giebink has 
 
         indicated claimant could not go back to his job at the time of 
 
         injury, but could do lighter work.  Claimant testified that, 
 
         subsequent to his injury, he had been able to handle the 
 
         transmission smoothing job he had been doing at the time of his 
 
         original injury.  The record does not suggest that the defendant 
 
         has made a good faith effort to return claimant to work.  Claimant 
 
         is currently working for a relative who tolerates claimant's 
 
         problems.  All parties are in agreement that claimant, on 
 
         occasion, has to work beyond his restrictions in that job.  The 
 
         defendant has made much ado concerning such.  We do not believe, 
 
         however, that Iowa's workers' compensation law requires an 
 
         employee, after an injury, to take only those positions within 
 
         medically imposed restrictions if his alternative to going outside 
 
         of the restrictions is to secure no livelihood for himself and for 
 
         his dependents.  Claimant has sought work other than that in which 
 
         he is now employed.  The record does not establish that those 
 
         efforts are not genuine and diligent.  Claimant was earning $8.50 
 
         per hour at Eaton in 1982 and is now earning $5.80 per hour.  
 
         While an actual reduction in earnings is not, per se, an 
 
         indication of industrial disability, it is a factor to be 
 
         considered with other factors in assessing industrial disability. 
 
          Claimant appears well motivated and appears to have made serious 
 
         efforts to mitigate the economic effects of his work related 
 
         injury.  Claimant, unfortunately, has only limited experience and 
 
         training.  He currently, as regards such, is best suited for the 
 
         heavy manual labor which he should no longer perform.  Claimant is 
 
         a younger worker, however.  He appeared to be of at least average 
 
         intelligence and was well spoken.  We suspect he would be a good 
 
         candidate for vocational rehabilitation into lighter duty work, 
 
         were that opportunity available to him.  We note also that the 
 
         employer made no attempt to assist claimant with vocational 
 
         rehabilitation.  All factors suggest that claimant has a loss of 
 
                                                
 
                                                         
 
         earning capacity of 45%.  The defendant, pursuant to section 
 
         85.34(4), is entitled to credit for the 20% permanent partial 
 
         disability already paid claimant.
 
         
 
              While claimant has raised the question of whether he is an 
 
         odd-lot worker under the Guyton doctrine, the record does not 
 
         show claimant is an odd-lot worker.  As noted above, claimant is 
 
         currently working, albeit outside of his restrictions.  
 
         Claimant's restrictions are not so profound as to preclude him 
 
         from obtaining employment in any well-known branch of the labor 
 
         market.  Nor can it reasonably be said that claimant is so 
 
         totally disabled that the only services claimant can perform are 
 
         so limited in quality, dependability or quantity as to be lacking 
 
         a reasonably stable market.  Guyton v. Irving Jensen Co., 373 
 
         N.W.2d 101 (Iowa 1985).
 
         
 
              As regards the commencement date issue, the claim activity 
 
         report of October 7, 1983 indicates that claimant's last payment 
 
         of permanent partial disability was on October 5, 1983.  Such 
 
         apparently related to additional permanent partial disability 
 
         payments voluntarily made following Dr. Follows' reassessment of 
 
         permanent partial "disability" and his assignation of an 
 
         additional 10% impairment.  The record does not suggest that 
 
         determination of industrial disability could not have been made 
 
         at that time.  Hence, additional permanent partial disability 
 
         benefit payments should commence on October 6, 1983.
 
         
 
              We consider the medical care and medical expense payment 
 
         issues.
 
         
 
              Section 85.27 requires the employer to furnish reasonable 
 
         surgical, medical, osteopathic, chiropractic and other forms of 
 
         medical care and supplies for injuries compensable under the Iowa 
 
         Workers' Compensation Act.  The employer has the right to choose 
 
         the care.  Treatment must be offered promptly and be reasonably 
 
         suited to treat the injury without undue inconvenience to the 
 
         employee.  The employee may petition the commissioner for 
 
         alternate care where, after communicating dissatisfaction with 
 
         the care to the employer in writing, the employee and the 
 
         employer cannot agree on alternate care reasonably suited to 
 
         treat the injury.
 
         
 
              The evidence establishes that claimant's treatments with Dr. 
 
         Peterson, at least in part, related to treatment of his original 
 
         injury.  Costs in evidence with Dr. Peterson are contained on 
 
         Exhibit S.  A number of charges on Exhibit S do not appear to be 
 
         causally related to the injury, however.  Charges for blood 
 
         pressure and weight check are not sufficiently related to 
 
         claimant's work situation.  Office calls of August 21, 1986, 
 
         September 8, 1986 and September 21, 1987 relating to right 
 
         sciatica do relate to the work injury.  The defendant is liable 
 
         for a charge of $17.00 as regards each such call.  An office call 
 
         of April 16, 1987 with a charge of $17.00 carries both a 
 
         diagnosis regarding a cyst on claimant's right knee and a 
 
         diagnosis of right lumbar radiculopathy.  The defendant is 
 
                                                
 
                                                         
 
         ordered to pay half of such cost, or a charge of $8.50.  Dr. 
 
         Peterson referred claimant to Dr. Carlstrom for an evaluation 
 
         regarding his work-related back condition.  Hence, charges with 
 
         Dr. Carlstrom are also considered compensable.  The defendant is 
 
         ordered to reimburse claimant for the costs of a neurological 
 
         exam of January 16, 1986 in the amount of $65.00 and to pay 
 
         claimant costs of an office call of October 1, 1987 with a charge 
 
         of $40.00 outstanding.  We note that the employer did not 
 
         apparently direct claimant to see Dr. Peterson or Dr. Carlstrom 
 
         nor did the employer acquiesce in claimant seeking treatment from 
 
         those physicians.  The employer has consistently denied any 
 
         further liability to claimant on account of his injury, however.  
 
         Having taken the position that the employer has no further 
 
         liability to claimant as well as the position that claimant's 
 
         current conditions are not compensable as related to his 1979 
 
         work injury, the defendant has forfeited the right to choose 
 
         claimant's medical care under section 85.27.  See Barnhart v. 
 
         MAQ, Incorporated, I Iowa Industrial Commissioner Report, 16 
 
         (1981).
 
         
 
              Claimant seeks alternate care by way of administration of 
 
         myelographic studies by or under the direction of Dr. Carlstrom. 
 
         On October 8, 1987, Dr. Carlstrom opined that a myelogram would 
 
         give "more decent definition of the lesion" that he felt claimant 
 
         conceivably had in the low back, which lesion potentially could 
 
         be "fixed with laminectomy."  The doctor indicated that more 
 
         information was needed before further pursuing a surgical 
 
         approach to claimant's problem.  The defendant apparently last 
 
         had claimant examined by a physician of their choice, namely, Dr. 
 
         Giebink, in June, 1985.  The defendant had taken no further steps 
 
         to assist claimant in amelioration of his condition.  Claimant 
 
         has seen Dr. Carlstrom at the direction of Dr. Peterson, who has 
 
         been claimant's treating physician in the interim.  Dr. 
 
         Carlstrom's October 8, 1987 report suggests that myelographic 
 
         studies are needful in order to better evaluate claimant's 
 
         continuing symptomology and arrive at appropriate diagnosis and 
 
         treatment. Claimant has a satisfactory and established 
 
         relationship with Dr. Carlstrom.  Alternate care by way of 
 
         myelographic examination by or under the direction of Dr. 
 
         Carlstrom is warranted and granted. Further care as Dr. Carlstrom 
 
         directs should also be construed as reasonable and necessary care 
 
         compensable under the Workers' Compensation Act.
 
         
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant sustained an injury in the course of his employment 
 
         and arising out of his employment on February 19, 1979 when he 
 
         jumped off a fork lift into an oil spill, caught himself and 
 
         injured his back.
 
         
 
              Claimant has proximally a 20% permanent partial impairment 
 
         as a result of his 1979 injury.
 
         
 
                                                
 
                                                         
 
              Claimant has restrictions of 20 to 30 pounds on lifting as 
 
         well as restrictions on repetitive bending, stooping, lifting, 
 
         shoveling and like activities.
 
         
 
              Claimant is a high school graduate.
 
         
 
              Claimant has had no military experience and has no post high 
 
         school training.
 
         
 
              Claimant's work experience is limited to heavy manual 
 
              labor.
 
         
 
              Claimant is 30 years old.
 
         
 
              Claimant's employer did not recall claimant to work after a 
 
         layoff in July, 1982.
 
         
 
              Claimant has sought a variety of jobs, but has been unable 
 
         to find one within his restrictions.
 
         
 
              Claimant is currently working as a concrete and masonry 
 
         assistant for his mother's cousin.
 
         
 
              Claimant's current employer is aware of and tolerates 
 
         claimant's restrictions, but on occasion, claimant must perform 
 
         activity beyond the restrictions imposed upon him.
 
         
 
              Claimant is well motivated.
 
         
 
              Claimant appears to be of average intelligence and would 
 
         likely be a good candidate for vocational rehabilitation, if such 
 
         were available.
 
         
 
                              
 
                                                         
 
              Claimant's employer has not attempted to assist claimant in 
 
         vocational rehabilitation.
 
         
 
              Claimant is not incapable of obtaining employment in any 
 
         well-known branch of the labor market.
 
         
 
              Services which claimant can perform for potential employers 
 
         are not so limited in quality, dependability or quantity that a 
 
         reasonably stable market for them does not exist.
 
         
 
              Claimant is not an odd-lot worker under Guyton v. Irving 
 
         Jensen Co., 373 N.W.2d 101 (Iowa 1985).
 
         
 
              The defendant last paid claimant permanent partial 
 
         disability payments on October 5, 1983.
 
         
 
              A finding as to claimant's extent of industrial disability 
 
         could have been made at that time.
 
         
 
              Dr. Peterson referred claimant to Dr. Carlstrom.
 
         
 
              The defendant has denied liability for claimant's current 
 
         medical condition and has not provided either medical care or 
 
         medical examination since June, 1985.
 
         
 
              Costs with Dr. Carlstrom in the amount of $40.00 and in the 
 
         amount of $65.00 relate to claimant's work injury.
 
         
 
              Costs of office visits with Dr. Peterson of August 21, 1986, 
 
         September 8, 1986 and September 21, 1987 as well as part of April 
 
         16, 1987 relate to claimant's work injury condition.
 
         
 
              Myelographic studies are appropriate to assess claimant's 
 
         low back condition and determine whether and what other treatment 
 
         is appropriate.
 
         
 
              Claimant is comfortable with treatment with Dr. Carlstrom.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is entitled to additional permanent partial 
 
         disability on account of his February 19, 1979 injury of 25%.
 
         
 
              Claimant is entitled to payment of medical costs with Dr. 
 
         Peterson and with Dr. Carlstrom as set forth in the above 
 
         applicable law and analysis.
 
         
 
              Claimant is entitled to alternate care by way of 
 
         myelographic study by or under the direction of Dr. Carlstrom as 
 
         well as other care as Dr. Carlstrom directs.
 
         
 
                                    ORDER
 
         
 
                                                
 
                                                         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendant pay claimant an additional one hundred twenty-five 
 
         (125) weeks of permanent partial disability benefits at the rate 
 
         of one hundred thirty-four and 38/100 dollars ($134.38) with 
 
         those benefits to commence on October 6, 1983.
 
         
 
              Defendant provide claimant with alternate care by way of 
 
         myelographic study by Dr. Carlstrom or under the direction of Dr. 
 
         Carlstrom as well as other care as Dr. Carlstrom directs.
 
         
 
              Defendant pay claimant medical costs with Dr. Peterson 
 
         related to claimant's compensable injury as outlined in the above 
 
         applicable law and analysis.  Defendant pay claimant medical 
 
         costs with Dr Carlstrom related to claimant's compensable injury 
 
         as related in the above applicable law and analysis.
 
         
 
              Defendant pay accrued amounts in a lump sum.
 
         
 
              Defendant pay interest pursuant to Iowa Code section 85.30.
 
         
 
              Defendant pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendant file Claim Activity Reports as required by this 
 
         agency pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 20th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            HELEN JEAN WALLESER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David A. Scott
 
         Attorney at Law
 
         407 Grand Avenue
 
         P.O. Box 3046
 
         Spencer, Iowa  51301
 
         
 
         Mr. Richard J. Barry
 
         Attorney at Law
 
         Professional Building
 
         Spencer, Iowa  51301
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1803, 2501, 2700, 4100
 
                                            Filed April 20, 1988
 
                                            HELEN JEAN WALLESER
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TERRY W. GRIFFIN,
 
         
 
              Claimant,                            File No. 603461
 
         
 
         vs.                                        R E V I E W -
 
         
 
         EATON CORPORATION,                       R E 0 P E N I N G
 
         
 
              Employer,                            D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803, 4100
 
         
 
              An additional 25% permanent partial disability was awarded a 
 
         30-year-old male claimant with 10% to 20% permanent partial 
 
         impairment, no post high school training and work experience as a 
 
         manual laborer only.  Defendant had not recalled claimant 
 
         following his work injury.  Claimant was not an odd-lot worker.
 
         
 
         2501, 2700
 
         
 
              Alternate medical care was allowed where the defendant had 
 
         denied further liability to claimant on account of the work 
 
         injury.
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
                                        
 
         ROBIN HOOTMAN,
 
              Claimant,                        File Nos. 604512
 
                                                         652333
 
         vs.                                             700301
 
         
 
         WEYERHAEUSER COMPANY,                   R E M A N D
 
         
 
              Employer,                        D E C I S I 0 N
 
              Self-Insured,
 
         
 
         and                                      F I L E D
 
         
 
         SECOND INJURY OF IOWA,                  JUN 7 1989
 
         
 
              Defendants.                   INDUSTRIAL SERVICES
 
         
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              This is a proceeding on remand that comes as a result of the 
 
         following history.  An arbitration and review-reopening decision 
 
         dated December 31, 1984 concluded that claimant had injured both 
 
         her wrists on October 13, 1980; that claimant had five percent 
 
         impairment of each upper extremity; that claimant did not injure 
 
         her wrists in November 1981 or January 1982; and that claimant 
 
         was not entitled to any benefits from the second injury fund.  
 
         Claimant appealed and the employer cross-appealed that decision 
 
         to the commissioner, and in an appeal decision dated October 4, 
 
         1985 a deputy appointed by the commissioner concluded that 
 
         claimant had failed to establish entitlement to second injury 
 
         fund benefits.
 
         
 
              Claimant appealed the appeal decision to the district court 
 
         in Linn County.  In a ruling dated March 6,1986, the district 
 
         court held that the injuries to the right and left hand occurred 
 
         on separate occasions.  The district court reversed the appeal 
 
         decision as to the second injury fund and remanded the case to 
 
         the industrial commissioner to determine an industrial disability 
 
         percentage for the claimant's injuries.  The second injury fund 
 
         appealed the district court decision.  The Iowa court of appeals 
 
         in a decision dated March 31, 1987 affirmed the district court. 
 
         The court of appeals' decision is an unpublished opinion as 
 
         reported at 409 N.W.2d 715, 716.. The commissioner retained 
 
         jurisdiction of the matter at the appeal level.
 
              
 
              The record on remand consists of the transcript of the 
 
         hearing; claimant's exhibits 1 through 13 and 15 through 19; and 
 
         defendants' exhibits A through D.
 
              
 
                                      ISSUE
 
                                        
 
              The issue on remand is the liability of the second injury 
 
         fund.  In order to determine the liability, it is necessary to 
 
         determine the extent of claimant's industrial disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
                              REVIEW OF THE EVIDENCE
 
                                        
 
              The discussion of the review of evidence will be limited to 
 
         facts relevant to claimant's industrial disability and 
 
         determination of the second injury fund liability.  Those 
 
         findings of fact that were made by the courts on judicial review 
 
         will be accepted as correct for purposes of this remand decision.  
 
         The findings of fact of the prior appeal decision that were not 
 
         reversed on judicial review and that are not inconsistent with 
 
         findings herein are also accepted as correct.
 
         
 
              Claimant is married and was 34 years old at the time of the 
 
         hearing.  She has three children and has a GED with additional 
 
         training as a key punch operator.  She has a license to drive a 
 
         tractor-trailer combination with six months' experience as a 
 
         driver.  In addition to work as a key punch operator and truck 
 
         driver, she has worked as an assembler.
 
              
 
              Claimant testified that since November 1981 she has made and 
 
         sold toys and dolls for children.  She estimated she made about 
 
         $15 a week on the sales.  She also testified that she had applied 
 
         for jobs as clerks in stores, in factories, and as a 
 
         receptionist. She stated she wanted to work.
 
              
 
              Based upon the court of appeals' decision, claimant has an 
 
         injury to the right hand and wrist as a result of a work injury 
 
         on October 13, 1980 and an injury to her left hand as a result of 
 
         a work injury in November 1981.  Based upon the arbitration and 
 
         review-reopening decision, claimant has permanent impairments of 
 
         five percent of each upper extremity which translate to six 
 
         percent of the body as a whole.
 
              
 
              Claimant said that when she first returned to work, she was 
 
         not under restriction.  When swelling developed limitations were 
 
         placed.  There was no work with defendant employer within her 
 
         restrictions.
 
         
 
              Frederick Reed, an employee of defendant employer who has 
 
         known claimant since she started to work for the company, 
 
         testified that claimant was able to perform work before her 
 
         injury in October 1980, but that she was "[n]ot too good" at her 
 
         job after surgery in January of 1982.  He thought claimant was a 
 
         good worker who wanted to work.
 
              
 
              Claimant's spouse indicated that claimant goes out each week 
 
         to look for work and that she has been unsuccessful in obtaining 
 
         any.
 
         
 
              Loy Gibbs, production superintendent for defendant employer, 
 
         believed claimant last worked July 15, 1982 and he could not 
 
         account for notations on August 2 and 3.  He stated that claimant 
 
         remains an employee and has bumping rights when she returns to 
 
         work, but he thought that jobs requiring lifting of less than 20 
 
         pounds would be filled by persons with more seniority than 
 
         claimant.  He thought claimant might be able to bump to a feeder 
 
         or operator on a die cutter.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              Steven R. Jarrett, M.D., saw claimant on July 15, 1981 at 
 
         which time she had pain on both the right and the left.  The 
 
         doctor wrote that claimant's pain would necessitate work 
 
         restrictions.  He proposed investigation of metabolic and 
 
         rheumatological causes and electrodiagnostic studies which were 
 
         normal.  There was no evidence of metabolic causes for peripheral 
 
         neuropathy or a systemic rheumatological process.  Dr. Jarrett 
 
         was unable to provide an impairment rating based solely on 
 
         claimant's pain.
 
              
 
              Claimant was seen by William R. Blair, M.D.  He seemingly 
 
         reviewed claimant's restrictions on November 16, 1982 and 
 
         determined the restrictions should remain in force until she 
 
         became asymptomatic.  On March 9, 1983, claimant was sent a 
 
         letter from the employer based on a letter from Dr. Blair 
 
         reversing her dismissal and telling her that she could return to 
 
         full duty as soon as her light duty restriction was lifted.
 
              
 
              John R. Huey, M.D., orthopedic surgeon, first saw claimant 
 
         on November 29, 1982.  He had the impression that claimant was 
 
         unable to do the work assigned by defendant employer, but that 
 
         she could do other work within the plant.  Dr. Huey's note of 
 
         December 10, 1982 suggests light work under 15 pounds and not 
 
         more than 20 repetitive motions a minute.
 
              
 
              Leland G. Hawkins, M.D., board certified orthopedic surgeon, 
 
         first saw claimant in 1979.  He examined claimant in January 
 
         1983. At the time of this examination claimant had no restriction 
 
         of motion, but she did report pain with excessive activity.
 
              
 
                                  APPLICABLE LAW
 
                                        
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of October 1980 and November 1981 
 
         are causally related to the disability on which she now bases her 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
              
 
              Industrial disability was defined in Diederich v. Tri-City 
 
         Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as 
 
         follows:  "It is therefore plain that the legislature intended 
 
         the term 'disability' to mean 'industrial disability' or loss of 
 
         earning capacity and not a mere 'functional disability' to be 
 
         computed in the terms of percentages of the total physical and 
 
         mental ability of a normal man."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963) at 1121, 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
              
 
              Disability * * * as defined by the Compensation Act means 
 
              industrial disability, although functional disability is an 
 
              element to be considered . . . In determining industrial 
 
              disability, consideration may be given to the injured 
 
              employee's age, education, qualifications, experience and 
 
              his inability, because of the injury, to engage in 
 
              employment for which he is fitted.
 
              
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
              
 
              In Parr v. Nash Finch Co., (Appeal Decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
              
 
              Although the court stated that they were looking for the 
 
              reduction in earning capacity it is undeniable that it was 
 
              the "loss of earnings" caused by the job transfer for 
 
              reasons related to the injury that the court was indicating 
 
              justified a finding of "industrial disability."  Therefore, 
 
              if a worker is placed in a position by his employer after an 
 
              injury to the body as a whole and because of the injury 
 
              which results in an actual reduction in earning, it would 
 
              appear this would justify an award of industrial disability.  
 
              This would appear to be so even if the worker's "capacity" 
 
              to earn has not been diminished.
 
              
 
              Agency interpretation of Second Injury Fund v. Mich. Coal 
 
         Co., 274 N.W.2d 300 (Iowa 1979) has held that assessment of 
 
         industrial disability to the employer at the time of the second 
 
         injury is appropriate only when the second injury extends to the 
 
         body as a whole as in the Mich Coal case.  That interpretation 
 
         has recently been affirmed.  See Second Injury Fund v. Neelans, 
 
         436 N.W.2d 355 (Iowa 1989).  If the second injury is limited to a 
 
         scheduled member then the employer's liability is limited to the 
 
         schedule.  Simbro v. Delany's Sportswear, 332 N.W.2d 886 (Iowa 
 
         1983).  Accordingly, the second injury fund is charged with the 
 
         excess industrial disability over the combined scheduled losses 
 
         of the first and second injury.  Second Injury Fund, 436 N.W.2d 
 
         355.
 
              
 
              Iowa Code section 85.36 provides in relevant parts:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                   The basis of compensation shall be the weekly earnings 
 
              of the injured employee at the time of the injury.  Weekly 
 
              earnings means gross salary, wages, or earnings of an 
 
              employee to which such employee would have been entitled had 
 
              the employee worked the customary hours for the full pay 
 
              period in which the employee was injured, as regularly 
 
              required by the employee's employer for the work or 
 
              employment for which the employee was employed, computed or 
 
              determined as follows and then rounded to the nearest 
 
              dollar:
 
                   
 
                   ....
 
                   
 
                   6.  In the case of an employee who is paid on a daily, 
 
              or hourly basis, or by the output of the employee, the 
 
              weekly earnings shall be computed by dividing by thirteen 
 
              the earnings, not including overtime or premium pay, of said 
 
              employee earned in the employ of the employer in the last 
 
              completed period of thirteen consecutive calendar weeks 
 
              immediately preceding the injury.
 
                   
 
                                     ANALYSIS
 
                                        
 
              The first question to be addressed is the extent of 
 
         claimant's industrial disability.  Claimant is 34 years of age 
 
         and has a GED. Her work experience has been manual labor in which 
 
         she used her hands to perform work.  She has a five percent 
 
         impairment of each of the upper extremities.  Although Dr. 
 
         Hawkins indicates that she has no restriction in her range of 
 
         motion, Dr. Huey has placed restrictions on her of 15 pounds and 
 
         not more than 20 repetitive motions a minute.  Claimant 
 
         experienced pain and swelling in her wrists when she attempted to 
 
         perform tasks after her injuries. There does not appear to be any 
 
         work available within claimant's restrictions at the defendant 
 
         employer.  Claimant has attempted to find other work and is 
 
         motivated to do so.  She.has not attempted retraining, but has 
 
         the intellectual capacity to seek further formal training.  Her 
 
         physical impairment is six percent of the body as a whole.  She 
 
         is at an age that further education or retraining would limit her 
 
         loss of earnings capacity.  When all things are considered, 
 
         claimant has an industrial disability of 40 percent.
 
         
 
              The next question to be decided is the second injury fund 
 
         liability.  The second injury fund is liable for the excess 
 
         industrial disability over the combined scheduled losses of the 
 
         first and second injury.  Claimant's industrial disability is 40 
 
         percent or 200 weeks.  The scheduled loss of the first injury is 
 
         five percent of the right upper extremity or 12 1/2 weeks.  The 
 
         scheduled loss of the second injury is five percent of the left 
 
         upper extremity or 12 1/2 weeks.  The second injury fund is 
 
         liable for 175 weeks of compensation.
 
              
 
              In order to determine the monetary liability of the second 
 
         injury fund it is necessary to determine claimant's rate of 
 
         compensation.  Claimant's rate of compensation at the time of the 
 
         first injury can be taken from the arbitration and 
 
         review-reopening decision and the facts given.  The rate of 
 
         compensation for claimant's industrial disability and her second 
 
         injury has not been previously determined.  Determination of the 
 
         rate is complicated by the facts that the parties did not 
 
         stipulate to the rate; the settlement agreement between the 
 
         employer and claimant has not been submitted for approval as 
 
         directed in the appeal decision; and evidence on the rate at the 
 
         time of the second injury is somewhat incomplete.  The failure of 
 
         the parties to file the settlement agreement has obviously caused 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         problems in determining claimant's proper rate.  Claimant's 
 
         hourly wage applicable in November 1981 was $7.67.  It appears 
 
         from claimant's exhibit 10 that claimant worked 13 weeks prior to 
 
         her November 1981 injury.  It also appears from claimant's 
 
         exhibit 10 that she usually worked 40 hours per week in 1979 and 
 
         1980.  There is nothing in the record to indicate that she did 
 
         not work 40 hours per week in the 13 weeks prior to her November 
 
         1981 injury.  She apparently took a vacation the week of August 
 
         3, 1981.  There was a holiday taken on September 7, 1981.  There 
 
         are some other notations on the absentee calendar for 1981 found 
 
         in claimant's exhibit 10.  However, it is impossible to tell from 
 
         the information given how many hours more or less than the usual 
 
         40 hours claimant would have worked.  While the record is not 
 
         clear, it is reasonable to conclude that claimant worked 40 hours 
 
         per week for 13 weeks prior to her injury at an hourly rate of  
 
         $7.67. Claimant's gross weekly wages were $306.80.  Claimant's 
 
         rate for her industrial disability is $196.24.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  Claimant was 34 years of age at the time of the 
 
         arbitration and review-reopening hearing and had a GED.
 
              
 
              2.  Claimant is married and has three dependent children.
 
              
 
              3.  As a result of a work injury on October 13, 1980, 
 
         claimant suffered a five percent impairment of the right upper 
 
         extremity.
 
         
 
              4.  As a result of a work injury in November 1981, claimant 
 
         suffered a five percent impairment of the left upper extremity.
 
              
 
              5.  Claimant had a six percent impairment of the body as a 
 
         whole as a result of the October 1980 and November 1981 injuries.
 
              
 
              6.  Claimant is restricted to lifting not more than 15 
 
         pounds and to not more than 20 repetitive motions a minute.
 
              
 
              7.  Claimant's work experience is manual labor.
 
              
 
              8.  Claimant is unable to do the same job she was doing when 
 
         she was injured.
 
         
 
              9.  Claimant has the intellectual capacity to seek further 
 
         education or retraining.
 
              
 
              10.  Claimant is motivated to be gainfully employed.
 
              
 
              11.  Claimant reached maximum recovery on February 23, 1982.
 
              
 
              12.  Claimant's rate of compensation at the time of the 
 
         November 1981 injury is $196.24.
 
                                        
 
                                CONCLUSIONS OF LAW
 
              
 
              Claimant has established she has an industrial disability of 
 
         40 percent as a result of the October 1980 and November 1981 work 
 
         injuries.
 
              
 
              Claimant has established that she is entitled to benefits 
 
         from the second injury fund.
 
              
 
                                      ORDER
 
                                        
 
              THEREFORE., it is ordered:
 
              
 
              That the second injury fund pay claimant permanent partial 
 
         disability benefits for one hundred seventy-five (175) weeks [two 
 
         hundred (200) weeks minus the sum of twelve point five (12.5) 
 
         weeks and twelve point five (12.5) weeks] at the weekly rate of 
 
         one hundred ninety-six and 24/100 dollars ($196.24).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That the second injury fund payment of benefits commence on 
 
         February 24, 1982.
 
              
 
              That credit be given for any benefits previously paid by the 
 
         second injury fund.
 
              
 
              That accrued payments are to be paid in a lump sum.
 
                                        
 
              That the second injury fund pay all costs of this remand 
 
         decision; the arbitration and review reopening; and the appeal.
 
              
 
              Signed and filed this 7th day of June, 1989.
 
              
 
              
 
              
 
              
 
              
 
                                          DAVID E. LINQUIST
 
                                       INDUSTRIAL COMMISSIONER
 
                                       
 
         Copies to:
 
         
 
         Mr. Benjamin W. Blackstock
 
         Attorney at Law
 
         201 Cedar Plaza
 
         385 Collins Rd NE
 
         Cedar Rapids, IA  52402
 
         
 
         Mr. James E. Shipman
 
         Attorney at Law
 
         1200 MNB Bldg
 
         Cedar Rapids, IA  52401
 
         
 
         Mr. John R. Scott
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover Building
 
         Des Moines, IA  50319
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            3202
 
                                            Filed June 7, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBIN HOOTMAN,
 
         
 
              Claimant,                             Files Nos. 604512
 
                                                               652333
 
         vs.                                                   700301
 
         
 
         WEYERHAEUSER COMPANY,                         R E M A N D
 
         
 
              Employer,                              D E C I S I 0 N
 
              Self-Insured,
 
         
 
         and
 
         
 
         SECOND INJURY OF IOWA,
 
          
 
              Defendants.
 
         
 
         
 
         
 
         3202
 
         
 
              This remand decision was based in part on prior findings by 
 
         courts on judicial review and the prior review-reopening 
 
         arbitration and appeal decisions.  The courts on review 
 
         determined that claimant had suffered two injuries, one to each 
 
         of the upper extremities.  The prior agency decisions determined 
 
         that claimant had five percent impairment to each of the upper 
 
         extremities which translated to six percent impairment to body of 
 
         the whole.
 
         
 
              In the remand decision claimant's industrial disability was 
 
         determined to be 40 percent.  The liability of the second injury 
 
         fund was 175 weeks. i.e. 40 percent of 500 weeks minus the sum of 
 
         5 percent of 250 weeks and 5 percent of 250 weeks or [(.40 x 500) 
 
         - (.05 x 250 + .05 x 250)].  The remand decision also determined 
 
         the rate at the time of the second injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA A. LARSON,           :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 605093
 
            vs.                           :
 
                                          :
 
            ST. JOSEPH MERCY HOSPITAL,    :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Patricia 
 
            A. Larson, claimant, against St. Joseph Mercy Hospital, 
 
            employer and self-insured defendant, for benefits as a 
 
            result of an injury that occurred on September 8, 1979.  A 
 
            hearing was held in Davenport, Iowa, on August 2, 1990, and 
 
            the case was fully submitted at the close of the hearing.  
 
            Claimant was represented by David H. Sivright, Jr., and 
 
            defendant was represented by James L. Pillars.  The record 
 
            consists of the testimony of Patricia A. Larson, claimant, 
 
            claimant's Exhibits 1, 2 and 3, and defendant's Exhibits A 
 
            through J minus F.
 
            
 
                                   stipulations
 
            
 
                 1.  The parties stipulated to the following matters:
 
            
 
                 2.  That an employer-employee relationship existed 
 
            between claimant and employer at the time of the alleged 
 
            injury.
 
            
 
                 3.  That claimant sustained an injury on September 8, 
 
            1979 which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 4.  That the injury was the cause of both temporary and 
 
            permanent disability.
 
            
 
                 5.  That the type of permanent disability if the injury 
 
            is found to be a cause of permanent disability is industrial 
 
            disability to the body as a whole.
 
            
 
                 6.  That the commencement date for permanent disability 
 
            benefits in the event such benefits are awarded is April 11, 
 
            1985.
 
            
 
                 7.  That the rate of compensation in the event of an 
 
            award of benefits is $118.94 per week.
 
            
 
                 8.  That claimant's entitlement to medical expenses 
 
            have all been or will be paid by defendant.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 9.  That defendant seeks no credit for employee 
 
            nonoccupational group plan benefits paid to claimant prior 
 
            to hearing.
 
            
 
                 10. That defendant paid claimant 25 weeks of permanent 
 
            disability benefits at the rate of $118.94 per week prior to 
 
            hearing.
 
            
 
                 11. That there are no bifurcated claims.
 
            
 
                 12.  That causal connection and entitlement to 
 
            temporary disability benefits are not disputed matters in 
 
            this case at this time.
 
            preliminary matter
 
            The industrial commissioner's Form 2A, Supplemental Claim 
 
            Activity Report, shows that claimant was paid temporary 
 
            disability benefits for three different periods of time 
 
            prior to hearing: (1) September 9, 1979 to January 25, 1980, 
 
            (2) May 16, 1980 to June 8, 1980, and (3) September 17, 1982 
 
            to October 11, 1984.
 
            
 
                                      issues
 
            
 
                 The parties submitted one issue for determination:
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits and, if so, the extent of benefits to which she is 
 
            entitled.
 
            
 
                                 findings of fact
 
            
 
                 Claimant, born on January 30, 1935, was 44 years old at 
 
            the time of the injury and 55 years old at the time of the 
 
            hearing.  Claimant's disability at these ages is greater 
 
            than it would be for a younger or older employee.  McCoy v. 
 
            Donaldson Company, Inc., file numbers 782670 and 805200 
 
            (Appeal Decision April 28, 1989); Walton v. B & H Tank 
 
            Corp., II Iowa Ind. Comm'r Rep. 426 (Appeal Dec. 1981); 
 
            Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Rep., 
 
            Iowa Indus. Comm'r 34 (Appeal Dec. 1979).
 
            Claimant completed the seventh grade and then quit school.  
 
            She did not start or complete high school.  Claimant 
 
            received no additional education or training other than 
 
            being qualified as a nurse's aide.  The feasibility of 
 
            retraining is one of the considerations considered in the 
 
            determination of industrial disability.  Conrad v. Marquette 
 
            School, Inc., IV Iowa Ind. Comm'r Rep. 74, 89 (1984).  There 
 
            was no evidence of a GED.  With a seventh grade education, 
 
            no GED, and no additional formal education or training, at 
 
            age 55 claimant is not a good candidate for retraining in a 
 
            formal academic setting.  Her opportunities for retraining 
 
            would be limited to on-the-job training.  These factors tend 
 
            to increase claimant's industrial disability or loss of 
 
            earning capacity.
 
            
 
                 Claimant was married at age 18 and started to work at 
 
            age 22 for employer as a nurse's aide in approximately 1957.  
 
            She devoted the major portion of her adult working life to 
 
            employer as a nurse's aide for 25 years until she was 
 
            involuntarily terminated in 1982.  She did learn to be a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            nurse's aide while employed by employer and did obtain a 
 
            certificate as a nurse's aide during her work for employer.
 
            
 
                 On September 8, 1979, claimant injured her low back and 
 
            left hip and thigh while lifting a comatose patient with a 
 
            licensed practical nurse.  At that time, she felt pain in 
 
            her left lower back and down her left hip and thigh.  She 
 
            testified that the pain in her left hip and thigh has been 
 
            there ever since.  She was treated and hospitalized by her 
 
            personal physician, J. P. Cahill, M.D.  He diagnosed a 
 
            herniated intervertebral disc with diminution of pinprick 
 
            sensation of the buttock on the left and the left lateral 
 
            thigh proximately.  She was hospitalized from September 14 
 
            until September 22, 1979 (Claimant's Exhibit 2, pages 1 
 
            through 4).
 
            
 
                 Claimant was later seen by R. L. Kreiter, M.D., an 
 
            orthopedic surgeon, in Davenport, Iowa, and several 
 
            physicians at the University of Iowa Hospitals and Clinics.  
 
            An EMG/NCV test at the University on October 12, 1981 was 
 
            normal.  On the same date, Doctors McAndrews and Lehmann, 
 
            (full names unknown) at the University concluded:
 
            
 
                    The patient was seen and examined with Dr. 
 
                 Lehmann and we feel that she has a very small 
 
                 herniated disc at L5-S1.  We would like to 
 
                 withhold final diagnosis until we are able to 
 
                 review the CAT scan ourselves.  On the basis of 
 
                 the information, at the present time, we give the 
 
                 patient a 10% total body impairment rating, but 
 
                 will withhold final rating until we have had an 
 
                 opportunity to review the CAT scan.
 
            
 
            (Defendant's Exhibit G, page 2)
 
            
 
                 The 10 percent impairment rating was never revoked, 
 
            withdrawn, qualified or modified in the record.  The CT scan 
 
            of October 12, 1981 showed a small soft tissue density 
 
            posterior to the disc space of S1-L5, suggesting a small 
 
            disc centrally.  The thecal sac appeared to be somewhat 
 
            indented by this small disc (Def. Ex. G, p. 6).  A further 
 
            interpretation of this CT scan says there is a central grade 
 
            II L5-S1 herniated nucleus pulposis.  It says the disc was 
 
            herniated, a grade II herniation of the nucleus pulposis 
 
            (Def. Ex. G, p. 9).
 
            
 
                 Claimant was seen at the University on December 3, 1982 
 
            by Doctors Salomon and Lehmann (full names unknown).  They 
 
            recommended against surgery and that claimant should 
 
            continue to work (Def. Ex. G, p. 3).  Her condition remained 
 
            unchanged on March 7, 1983.  On August 10, 1984, a physical 
 
            therapist reported that claimant was unable to perform most 
 
            of the exercises and standard positions; she seemed somewhat 
 
            resistant to exercising and weight control (Def. Ex. G, pp. 
 
            9,10).  She was seen in the pain clinic on the same date and 
 
            Gail Vandewalker, M.D., and V. Kumar, M.D., reported a 
 
            diagnosis of meralgia parasthetica.  This is defined in the 
 
            new American Medical Dictionary and Health Manual, by Robert 
 
            E. Rothberg, M.D., F.A.C.S., as "numbness and lack of 
 
            sensation on the outer aspect of the thigh caused by failure 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            of function of the nerve (lateral cutaneous) to that area."  
 
            These doctors noted that claimant refused a local injection 
 
            which they said may or may not help the pain permanently or 
 
            temporarily.  Claimant refused an injection of any type and 
 
            the doctors advised her not to return to the pain clinic 
 
            (Def. Ex. G, p. 10).  Claimant testified that several 
 
            friends told her that they had been worse after receiving 
 
            these injections and, furthermore, the doctors could not 
 
            give her any assurance that they would actually relieve her 
 
            pain or help her in any way.
 
            
 
                 Claimant testified that in September of 1982 the 
 
            employer was laying off certain nurse's aides.  Claimant 
 
            testified two or three times that she was told by an 
 
            employer representative that she was being paid her PTO 
 
            (paid time off) and that she was instructed to apply for 
 
            unemployment compensation.  Claimant further testified that 
 
            certain other nurse's aides were retained for employment in 
 
            other capacities in the hospital such as the snack bar, 
 
            general supply, housekeeping, and the kitchen.  However, 
 
            claimant vehemently denied that she was notified by employer 
 
            that these positions were available or that they appeared on 
 
            the bulletin board.  She was told that she was to receive 
 
            the PTO check and to go and apply for unemployment 
 
            compensation benefits, which she did.  Claimant regretted 
 
            being laid off by employer because it was the best job she 
 
            ever had.  It paid the most money, had the best employee 
 
            fringe benefits, and was the most enjoyable working 
 
            experience.  She wished that she could return to work for 
 
            employer.  She had made an application about three months 
 
            prior to the hearing but she had not heard anything in 
 
            return from employer.  Defendant called no live witnesses.  
 
            Claimant's testimony was not controverted, contradicted, 
 
            rebutted or refuted.
 
            
 
                 At the time claimant was terminated she was earning 
 
            approximately $8.00 per hour.  Subsequently, she has been 
 
            employed at the West Wing Care Center and the Alverno Care 
 
            Center.  These nursing home employments have paid 
 
            approximately $4.00 per hour.  Thus, claimant has sustained 
 
            an actual wage loss of approximately 50 percent of her 
 
            former earnings.
 
            
 
                 Lorene A. Blazek, night registered nurse at the Alverno 
 
            Care Center, testified that claimant performs the duties of 
 
            nurse's aide without complaints.  She asks for help if she 
 
            needs it for heavier residents.  (Def. Ex. I, pp. 21-25)
 
            
 
                 Pauline L. Kaufmann, director of nursing at Alverno 
 
            Care Center, testified claimant has worked there since 
 
            December 29, 1987 and performs her job as nurse's aide 
 
            without any difficulty being called to her attention.  
 
            Claimant has complained of pain in her back but has 
 
            performed her duties as nurse's aide.  (Cl. Ex. 2)
 
            Employer's inability to find any employment for claimant 
 
            when she was laid off indicates the possibility of a rather 
 
            substantial disability. Sunbeam Corp. v. Bates, 271 Ark. 
 
            385, 609 S.W.2d 102 (Appea     security disability.  Dr. Mericle was critical that claimant 
 
            was 62 inches tall and weighed 250 1/4 pounds.  He felt her 
 
            pain reaction was excessive to the amount of his 
 
            palpitation.  He felt the solution to her back pain problem, 
 
            whether real or not, was to get down to her marital weight 
 
            of 130 pounds (Def. Ex. D, pp. 1-3).  Claimant was denied 
 
            social security benefits.
 
            
 
                 Claimant saw David S. Field, M.D., on May 1, 1984 for 
 
            an evaluation of back pain.  He determined that she had a 
 
            history compatible with sciatica but there is a considerable 
 
            amount of functional overlay and excessive pain reaction 
 
            when examined.  He recommended pain management with 
 
            biofeedback.  He concluded:  "Overall at this time she 
 
            appears generally disabled from her back and leg pain, but 
 
            does have a considerable amount of functional overlay and 
 
            pain reaction secondary to her problem."  (Def. Ex. E, p. 2)
 
            
 
                 Dr. Field examined claimant a year later on May 1, 1985 
 
            and found little change in her condition between these two 
 
            examinations.  He found a history compatible with chronic 
 
            type of left sides sciatica, with no evidence of 
 
            neurological deficit with a large functional component 
 
            present.  He did not feel that her pain response would be 
 
            altered based on the length of time it had been present.  He 
 
            concluded:  "This would merit approximately a five percent 
 
            whole body impairment based on the present examination and 
 
            studies at this time."  (Cl. Ex. 1, p. 2)
 
            
 
                 In summary, then, with respect to impairment ratings, 
 
            Doctors McAndrews and Lehmann assessed a 10 percent total 
 
            body impairment rating on October 12, 1981 (Def. Ex. G, p. 
 
            2) and Dr. Field gave a 5 percent whole body impairment 
 
            rating on May 9, 1985 (Cl. Ex. 1, p. 2).
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                 There are a number of other medical reports from other 
 
            doctors on a variety of physical, mental and emotional 
 
            problems that claimant has been treated for, however, 
 
            claimant's counsel stated that claimant was not asking for 
 
            any benefits based upon these other conditions which were 
 
            unrelated to the low back and left hip pain.  Claimant 
 
            requested an industrial disability determination based upon 
 
            her low back and left hip injury which occurred on September 
 
            8, 1979.
 
            Wherefore, (1) based upon the evidence presented, (2) based 
 
            on all the factors used to determine industrial disability, 
 
            Christensenn v. Hagen, Inc., I Iowa Ind. Comm'r Rep. 529 
 
            (Appeal Dec. March 26, 1985); Peterson v. Truck Haven Cafe, 
 
            Inc., I Iowa Ind. Comm'r Dec. 654, 658 (Appeal Dec. February 
 
            28, 1985); Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963), (3) applying agency expertise, Iowa 
 
            Administrative Procedure Act 17A.14(5), (4) considering that 
 
            claimant was disabled at ages 44 and 55 in her peak period 
 
            of earning, (5) that she only has a seventh grade education 
 
            and nurse's aide training with no evidence of a GED and is 
 
            not a good candidate for retraining, (6) that she has 
 
            sustained an approximate 50 percent loss of actual earnings, 
 
            (7) that she has sustained a herniated intervertebral disc 
 
            at L5-S1 for which surgery has not been recommended and no 
 
            permanent restrictions imposed, (8) that she has impairment 
 
            ratings of 5 percent and 10 percent of the whole person, (9) 
 
            that claimant has been able to perform duties as a nurse's 
 
            aide with the use of prescription medications and obtaining 
 
            assistance before doing heavy lifting, (10) that employer 
 
            could find absolutely no work for claimant and terminated 
 
            claimant but could find employment for other nurse's aides, 
 
            and (11) that claimant's disability contains a certain 
 
            amount of functional overlay component, it is determined 
 
            that claimant has sustained a 20 percent industrial 
 
            disability to the body as a whole.
 
            
 
                    
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            conclusions of law
 
            
 
                 Wherefore, based upon the evidence presented and the 
 
            foregoing and following principles of law, it is determined 
 
            as a matter of law that claimant has sustained a 20 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 100 weeks of permanent partial disability benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred eighteen and 94/100 dollars ($118.94) per week in 
 
            the total amount of eleven thousand eight hundred 
 
            ninety-four dollars ($11,894) commencing on April 11, 1985, 
 
            as stipulated to by the parties.
 
            
 
                 That defendants are entitled to a credit for 
 
            twenty-five (25) weeks of permanent partial disability 
 
            benefits paid to claimant at the rate of one hundred 
 
            eighteen and 94/100 dollars ($118.94) per week prior to 
 
            hearing in the total amount of two thousand nine hundred 
 
            seventy-three and 50/100 dollars ($2,973.50).
 
            
 
                 That these benefits are to paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30, except for the period of a continuance which was 
 
            requested by claimant, which the parties said they would be 
 
            able to work out between themselves.
 
            
 
                 That the costs of this action are charged to defendant.
 
            
 
                 That defendant is specifically ordered to pay to 
 
            claimant forty-six and 84/100 dollars ($46.84) for the 
 
            transcription fees for the depositions of Lorene A. Blazek, 
 
            and Pauline L. Kauffman, which were introduced at the 
 
            hearing.  The bill is attached to the prehearing report by 
 
            claimant.  Defendant is not obligated to pay claimant 
 
            ninety-six and 90/100 dollars ($96.90) for the transcription 
 
            fee of the deposition of Patricia Larson, claimant, for the 
 
            reason that the transcript was not introduced into evidence 
 
            at the hearing nor should it have been since claimant was 
 
            present to testify and to be cross-examined.  Such an item 
 
            is normally considered to be a trial preparation expense.  
 
            It is not normally construed to be  "transcription costs 
 
            when appropriate" as mentioned in Division of Industrial 
 
            Services Rule 343-4.33(2).
 
            
 
                 That defendant file claim activity reports as requested 
 
            by this agency, pursuant to Division of Industrial Services 
 
            Rule 343-3.1.
 
            
 
                 Signed and filed this _____ day of August, 1990.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr David Sivright, Jr
 
            Attorney at Law
 
            408 S 2nd St
 
            Clinton IA 52732
 
            
 
            Mr James L Pillers
 
            Attorney at Law
 
            1127 N Second St
 
            Clinton IA 52732
 
            
 
            
 
     
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
                                   postscripts
 
            
 
                 walt - say something in the way of summarization of the 
 
            depositions of Lorene Blazek and Pauline Kauffman.
 
            
 
                 Back under the stipulations state that causal 
 
            connection and entitlement to temporary disability benefits 
 
            were not disputed matters in this case at this time.
 
            
 
                 I also want to edit that point that official notice is 
 
            taken of the form 2A in the industrial commissioner's file 
 
            prepared on November 14, 1986 which shows that claimant was 
 
            paid ttd benefits for 3 different periods of time - 9-9-79 
 
            to 1-25-80; 5-16-80 to 6-8-80; 9-17-82 to 10-11-84.
 
            
 
                 In the itemization of my reasons for the industrial 
 
            disability award I need to add another reason - that 
 
            employer could find no work for claimant after the injury 
 
            and found it necessary to terminate the employee.
 
            
 
                 That it was not demonstrated that any doctor imposed 
 
            any permanent restrictions on claimnt's working activities.  
 
            Another industrial factor is that two doctors stated that 
 
            claimant's disability has a certain amount of functional 
 
            component involved in it.
 
            
 
                 When claimant applied for work at West Wing and Alverno 
 
            nursing care centers, she did not answer the questions on 
 
            the application relative to prior back injuries.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          51803
 
                                          Filed: August 10, 1990
 
                                          Walter R. McManus, Jr.
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PATRICIA A. LARSON,           :
 
                                          :
 
                 Claimant,                :
 
                                          :        File No. 605093
 
            vs.                           :
 
                                          :
 
            ST. JOSEPH MERCY HOSPITAL,    :     A R B I T R A T I O N
 
                                          :
 
                 Employer,                :        D E C I S I O N
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            51803
 
            This decision is a nonprecedential determination of 
 
            industrial disability.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL W. PORTER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 612800
 
            vs.                           :
 
                                          :          R E V I E W -
 
            P & M STONE COMPANY, INC.,    :
 
                                          :        R E O P E N I N G
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in review-reopening upon 
 
            claimant's petition filed March 14, 1989.  Claimant 
 
            sustained a work injury on August 7, 1979 when a large piece 
 
            of equipment fell on him in the course of his duties with P 
 
            & M Stone Company, Inc., defendant employer.  Claimant, his 
 
            employer and its insurance carrier, The Travelers, entered 
 
            into an agreement for settlement approved by a deputy 
 
            industrial commissioner on March 2, 1981.  The agreement for 
 
            settlement pointed out that claimant had received 
 
            appropriate treatment for various injuries, including 
 
            surgical correction for a blow-out fracture of the right 
 
            orbit, and determined that in addition to healing period and 
 
            medical benefits, claimant was entitled to compensation for 
 
            a 30 percent industrial disability to the body as a whole.  
 
            The deputy at the same time approved an application for 
 
            partial commutation in which the first 50 weeks of 
 
            claimant's 150-week industrial disability entitlement was 
 
            commuted, leaving the last 100 weeks of benefits remaining.
 
            
 
                 Claimant subsequently filed a petition in 
 
            review-reopening which was heard by a deputy industrial 
 
            commissioner on February 12, 1987.  A decision was filed on 
 
            December 14, 1987, finding, in pertinent part, that claimant 
 
            did not sustain a hearing loss as a result of the work 
 
            injury and that he had not undergone any change of condition 
 
            with respect to his diagnosis of diplopia or in any other 
 
            respect.
 
            
 
                 Claimant filed another petition for review-reopening on 
 
            March 14, 1989.  Hearing was had in Fort Dodge, Iowa, on 
 
            June 15, 1990.  The record consists of claimant's testimony, 
 
            claimant's exhibits 1 through 15 and defendants' exhibits A 
 
            through E.  Official notice was taken of the entire 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            litigation file, including exhibits introduced during the 
 
            previous review-reopening proceeding.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the parties have 
 
            stipulated:  that claimant sustained an injury arising out 
 
            of and in the course of his employment on August 7, 1979; 
 
            that the injury caused temporary and permanent disability; 
 
            that the appropriate rate of weekly compensation is $205.61.
 
            
 
                 Issues presented for resolution include:  the extent of 
 
            claimant's entitlement to additional compensation for 
 
            temporary and permanent disability and the nature and 
 
            commencement date of the latter; the extent of claimant's 
 
            entitlement to medical benefits (the parties stipulate that 
 
            the expenses and fees charged for medical services and 
 
            supplies are fair and reasonable and incurred for reasonable 
 
            and necessary treatment, but it is disputed whether those 
 
            expenses are causally connected to the work injury or 
 
            authorized by defendants); whether defendants have a valid 
 
            affirmative defense of limitations under Iowa Code section 
 
            85.26; whether a penalty should be imposed under Iowa Code 
 
            section 86.13.
 
            
 
                 In his post-hearing brief, claimant conceded that under 
 
            current Iowa law, any claim for additional permanency 
 
            benefits is barred by limitations.  However, he contends 
 
            that the limitations bar does not apply to additional 
 
            periods of temporary total disability or medical benefits.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 
            finds:
 
            
 
                 The agreement for settlement and commutation approved 
 
            by this office on March 2, 1981, noted that healing period 
 
            ended January 5, 1981.  One hundred fifty weeks of permanent 
 
            partial disability benefits were approved (although the 
 
            first 50 were commuted), or almost three years.  There is no 
 
            indication in the record that defendants delayed payment 
 
            under the agreement for settlement.  Accordingly, it would 
 
            appear that the last payment of weekly benefits was made 
 
            shortly before January 1, 1984.  Since the previous 
 
            review-reopening decision awarded no additional benefits, 
 
            the record does not show any weekly payments made subsequent 
 
            to January 1, 1984.
 
            
 
                 Tom E. Smith, Jr., M.D., treated claimant shortly after 
 
            the work injury.  Care included a surgical right orbital 
 
            exploration with repair of blow-out fracture and closed 
 
            reduction of nasal fracture on August 17, 1979.  There is no 
 
            indication in the record that defendants have subsequently 
 
            withdrawn Dr. Smith's authorization as a treating physician.
 
            
 
                 Upon diagnoses of traumatic nasal deformity, nasal 
 
            airway obstruction and osteomeatal unit stenosis with early 
 
            chronic ethmoid sinusitis, Dr. Smith performed further 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            surgery on December 16, 1988 described as a 
 
            septorhinoplasty, partial resection inferior and middle 
 
            turbinates, bilateral anterior and posterior ethmoidectomy, 
 
            bilateral maxillary antrostomy.  Operative notes point out 
 
            that claimant had previously undergone a major nasal 
 
            fracture (obviously the work injury) with fracture deformity 
 
            of the nose causing both a cosmetic debility to the nose and 
 
            also causing a high grade nasal airway compromise as well as 
 
            fracture into the anterior ethmoids bilaterally with 
 
            mucoperiosteal thickening throughout the anterior and 
 
            posterior ethmoid air cells.  Dr. Smith's discharge summary 
 
            and office notes point to his opinion that this surgical 
 
            procedure was causally related to the work injury.  No 
 
            contrary evidence exists of record.
 
            
 
                 Dr. Smith performed further surgery on August 4, 1989 
 
            described as left maxillary antrectomy.  Dr. Smith's office 
 
            notes, and particularly his letter to defendants' attorney 
 
            dated July 20, 1989, reflect his opinion that this surgery 
 
            was also directly related to the original work injury.  Once 
 
            again, no contrary evidence exists of record.
 
            
 
                 Claimant's medical expenses relating to these 
 
            procedures are set forth in exhibit 5.  Including mileage at 
 
            $.21 per mile, these expenses total $11,229.90. 
 
            
 
                                conclusions of law
 
            
 
                 Iowa Code section 85.26(2) provides:
 
            
 
                 An award for payments or an agreement for 
 
                 settlement provided by section 86.13 for benefits 
 
                 under this chapter or chapter 85A or 85B, where 
 
                 the amount has not been commuted, may be reviewed 
 
                 upon commencement of reopening proceedings by the 
 
                 employer or the employee within three years from 
 
                 the date of the last payment of weekly benefits 
 
                 made under the award or agreement.  If an award 
 
                 for payments or agreement for settlement as 
 
                 provided by section 86.13 for benefits under this 
 
                 chapter or chapter 85A or 85B has been made and 
 
                 the amount has not been commuted, or if a denial 
 
                 of liability is not filed with the industrial 
 
                 commissioner and notice of the denial is not 
 
                 mailed to the employee, on forms prescribed by the 
 
                 commissioner, within six months of the 
 
                 commencement of weekly compensation benefits, the 
 
                 commissioner may at any time upon proper 
 
                 application make a determination and appropriate 
 
                 order concerning the entitlement of an employee to 
 
                 benefits provided for in section 85.27.  The 
 
                 failure to file a denial of liability does not 
 
                 constitute an admission of liability under this 
 
                 chapter or chapter 85B, 85B, or 86.
 
            
 
                 The last payment of weekly benefits made under the 
 
            agreement for settlement approved by the agency was made 
 
            prior to January 1, 1984.  The petition in this case in 
 
            review-reopening was filed on March 14, 1989.  Accordingly, 
 
            the agreement for settlement is not subject to 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            review-reopening, either as to temporary total or permanent 
 
            partial disability benefits.  Claimant takes the position 
 
            that his claim for additional temporary total disability 
 
            benefits should be treated separately, but the statute makes 
 
            no such distinction.
 
            
 
                 However, the statute specifically provides that the 
 
            commissioner may "at any time" determine entitlement to 
 
            medical benefits under section 85.27.  For injuries 
 
            occurring between July 1, 1973 and July 1, 1982, there is no 
 
            statute of limitations applying to claims for medical 
 
            benefits where there has been an agreement for settlement 
 
            filed.  Beier Glass Co. v. Brundige, 329 N.W.2d 280 (Iowa 
 
            1983).
 
            
 
                 Defendants dispute whether the 1988 and 1989 surgical 
 
            procedures are causally related to the original work injury.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of August 7, 
 
            1979 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hosp., 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 The record shows that the treating physician has opined 
 
            that both surgical procedures are causally related to the 
 
            work injury.  No contrary expert opinion appears of record.  
 
            Claimant has met his burden of proof on this issue.
 
            
 
                 Defendants also assert in their post-trial brief that 
 
            the agreement for settlement indicates claimant's agreement 
 
            that there was no claim for injury to his eye and that the 
 
            first review-reopening decision found no causal relationship 
 
            between the injury and loss of vision.  Both assertions 
 
            misstate the record.  The agreement for settlement 
 
            specifically pointed out that claimant had undergone 
 
            surgical correction for a blow-out fracture of the right 
 
            orbit and the review-reopening decision of December 14, 1987 
 
            merely found there had been no change in claimant's 
 
            condition.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Defendants also assert as a defense that they did not 
 
            authorize medical treatment by Dr. Smith.  However, Dr. 
 
            Smith was one of the original treating physicians and there 
 
            is no indication that authorization was withdrawn (much less 
 
            that defendants would have been justified in withdrawing 
 
            authorization for subsequent necessary surgical treatment).  
 
            This defense fails.  Claimant shall be awarded medical 
 
            benefits and transportation expenses totalling $11,229.90 
 
            pursuant to the stipulation between the parties and 
 
            claimant's exhibit 5.
 
            
 
                 Claimant also asserts entitlement to penalty benefits 
 
            and interest.  However, this relief is not available with 
 
            respect to an award of medical benefits.  Klein v. Furnas 
 
            Electric Company, 384 N.W.2d 370 (Iowa 1986).
 
            
 
                           
 
            
 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendants shall pay unto medical providers set forth 
 
            in claimant's exhibit 5 (or to claimant to the extent he has 
 
            personally made those payments) medical expenses totalling 
 
            ten thousand nine hundred fourteen and 90/100 dollars 
 
            ($10,914.90) and, to claimant directly, mileage expenses of 
 
            three hundred fifteen and 00/100 dollars ($315.00).
 
            
 
                 The costs of this action shall be assessed to 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 Defendants shall file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Tito Trevino
 
            Attorney at Law
 
            503 Snell Building
 
            P.O. Box 1680
 
            Fort Dodge, Iowa  50501
 
            
 
            Office of M. Gene Blackburn
 
            142 North 9th Street
 
            P.O. Box 817
 
            Fort Dodge, Iowa  50501
 
            
 
            P & M Stone Company, Inc.
 
            P.O. Box 569
 
            Humboldt, Iowa  50548
 
            CERTIFIED MAIL
 
            
 
            Travelers Insurance Company
 
            P.O. Box 9191
 
            Des Moines, Iowa  50306
 
            CERTIFIED MAIL
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           2403; 3800; 4000.2
 
                           Filed February 4, 1991
 
                           DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MICHAEL W. PORTER,            :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 612800
 
            vs.                           :
 
                                          :          R E V I E W -
 
            P & M STONE COMPANY, INC.,    :
 
                                          :        R E O P E N I N G
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            TRAVELERS INSURANCE CO.,      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            2403
 
            Petition in review-reopening was filed more than three years 
 
            after last payment of weekly benefits pursuant to agreement 
 
            for settlement and partial commutation.  Claims for 
 
            additional temporary total and permanent partial disability 
 
            (claimant underwent two late surgical procedures) were 
 
            barred under 85.26, but medical expenses were awarded.
 
            
 
            3800; 4000.2
 
            Interest and penalty not awarded with respect to medical 
 
            benefits under Klein v. Furnas Electric Company.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         DENNIS K. SIMONS,
 
                                                  FILE NO. 614314
 
              Claimant,
 
                                                    R E V I E W
 
         VS.
 
                                                 R E 0 P E N I N G
 
         CATERPILLAR TRACTOR COMPANY,
 
         
 
              Employer,
 
              Self-Insured,
 
         _________________________________________________________________
 
         _
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by Dennis 
 
         K. Simons against Caterpillar Tractor Company, his self-insured 
 
         employer.  Claimant seeks further benefits as a result of an 
 
         injury which occurred October 11, 1979.
 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties at the time of hearing 
 
         are determination of claimant's entitlement to compensation for 
 
         permanent partial disability.  It was stipulated that claimant's 
 
         healing period has been fully compensated and ended on January 
 
         18, 1984.  It was further stipulated that in the event any 
 
         permanent partial disability compensation is awarded the 
 
         defendant is entitled to credit for 11 4/7 weeks based upon the 
 
         payments shown on the Form 2A in the agency file.  The parties 
 
         agreed that the payments shown on the Form 2A have actually been 
 
         paid but that the characterization of the payments as healing 
 
         period or permanent partial disability was not precisely 
 
         correct.
 
         
 
              Claimant seeks payment under the provision of section 85.39 
 
         for an examination conducted by Jerome G. Bashara, M.D. Claimant 
 
         also seeks an award for mileage for travel in obtaining medical 
 
         care and assessment of costs incurred in the prosecution of this 
 
         proceeding.
 
         
 
              The case was heard at Davenport, Iowa on May 28, 1986 and 
 
         was fully submitted on conclusion of the hearing.  The record 
 
         consists of testimony from claimant, Joan Simons, and Michael E. 
 
         Hengel, Sr.  Exhibits 1 through 13 were received into evidence.
 
         
 
                            REVIEW OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent 
 
              evidence.
 
         
 
         
 
         All evidence received at hearing was considered when deciding 
 
         this case.
 
         
 
              Dennis K. Simons is a 35 year old married man with two 
 

 
         children.  At the time of hearing he stood five feet eight inches 
 
         tall and weighed 200 pounds according to his testimony.
 
         
 
              Simons was formerly employed at the Caterpillar Tractor 
 
         Company plant in Mt. Joy, Iowa where he worked as a machinist. on 
 
         October 11, 1979 a tub slipped while it was being lifted by a 
 
         chain hoist.  Simons tried to push it away and in doing so fell 
 
         backward into a tub injuring his back.  Simons testified that he 
 
         continued to work although he was experiencing increasing 
 
         discomfort.  The following morning Simons was examined by James 
 
         C. Donahue, M.D., the plant physician where he was diagnosed as 
 
         having a muscle strain, prescribed medication and instructed to 
 
         perform sit down work which involved no bending (Exhibit 2).
 
         
 
              Claimant continued to work but his condition did not 
 
         resolve.  He was referred to Byron W. Rovine, M.D. On October 26, 
 
         1979, Dr. Rovine examined claimant and found him to have a height 
 
         of five feet six and three-fourths inches and to weigh 230 
 
         pounds.  Claimant exhibited symptoms which led Dr. Rovine to 
 
         conclude that he was affected either by an aggravated lumbosacral 
 
         strain or a mid-line disc extrusion.  Dr. Rovine felt that if the 
 
         condition were a strain it would take a prolonged period of 
 
         bedrest and weight reduction to get claimant back into condition 
 
         (Ex. 3, page 2).  Dr. Rovine attempted to perform a myelogram on 
 
         October 30, 1979 but was unsuccessful.  He subsequently examined 
 
         claimant on November 7, 1979 and found improved back movement 
 
         with no reflex, motor or sensory abnormalities.  Treatment in the 
 
         nature of rest, heat and medications was continued (Ex.3, p.4). 
 
         Dr. Rovine subsequently released claimant to return to light duty 
 
         work effective December 10, 1979 with restrictions against 
 
         pushing, pulling, working in stooped positions or climbing on 
 
         ladders and with a 30 pound lifting limit (Ex.3, p. 9).
 
         
 
              Claimant testified that he took a medical downgrade to 
 
         perform a lower paying position as a tool crib attendant on the 
 
         second shift.  As shown in exhibit 2 claimant made frequent 
 
         visits to the company medical department with complaints of pain 
 
         and received treatment in the nature of heat and medication.
 
         
 
              On September 25, 1980, claimant made a complaint to the 
 
         medical department of exceeding his restrictions.  He was then 
 
         off work and remained off work until July 13, 1981 (Ex. 2, p. 11, 
 
         Ex. 4, pp. 3-8).  During that absence from work claimant was 
 
         evaluated by Thomas Lehman, M.D., at the University of Iowa 
 
         Hospitals and Clinics at Iowa City, Iowa.  Dr. Lehman felt that 
 
         claimant had an instability problem at the L5-Sl level and 
 
         recommended that a chair back brace be obtained (Ex. 6).  The 
 
         brace was obtained and claimant reported that wearing it made him 
 
         feel better (Ex.2,p.12)
 
         
 
              After claimant's return to work on July 13, 1981, he 
 
         continued to make frequent visits to the medical department for 
 
         heat treatment and medication. on August 28, 1981, he reported 
 
         that he caught his heel in the bottom brace of a stool as he was 
 
         getting off it and twisted as he fell forward.  He reported that 
 
         he injured his back in the incident (Ex. 2, p. 15).  Claimant was 
 
         taken off work until September 9, 1981.  He was treated by John 
 
         K. Meyer, D.O., who diagnosed claimant's condition as a 
 
         lumbosacral sprain/strain and treated him with medication and 
 
         rest (Ex. 8).  Claimant testified that following the return to 
 
         work his back was in the same condition as it had been previously 
 
         and that he continued to work until laid off just prior to a 
 
         strike in 1981 or 1982.  Claimant's brief urges that the layoff 
 
         occurred on April 5, 1982.  Claimant has not returned to work 
 

 
         
 
         
 
         
 
         SIMONS V. CATERPILLAR TRACTOR COMPANY
 
         Page   3
 
         
 
         
 
         with Caterpillar.
 
         
 
              Claimant was also treated by Samuel W. Williams, D.O., in 
 
         1980 who in turn referred him to Sarah S. Werner, M.D., a 
 
         neurologist.  Dr. Williams had initially felt that claimant had a 
 
         possible disc injury but then concurred with Dr. Werner's 
 
         assessment of the case as one which was limited to a muscular 
 
         injury (Ex. 10, pp. 7 & 8).  Dr. Williams rated claimant as 
 
         having a 10 percent permanent partial disability of the body as a 
 
         whole as a result of the injury.  Drs. Werner and Williams also 
 
         concurred in their opinions that claimant's condition of being 
 
         overweight contributed to his symptoms (Ex. 10, pp. 15 & 19, 
 
         Deposition Ex. 1).
 
         
 
              Claimant had been reevaluated by Dr. Rovine on September 8, 
 
         1980 at which time Dr. Rovine confirmed his diagnoses of a 
 
         lumbosacral strain.  He found no neurological abnormalities, 
 
         recommended that claimant continue on light duty work and further 
 
         recommended that claimant lose weight (Ex. 3, p. 12).
 
         
 
              Following claimant's layoff he received unemployment 
 
         compensation and searched for work unsuccessfully.  He testified 
 
         that he continued to experience discomfort in his back and the 
 
         continuing symptoms of which he has complained.  He entered a 
 
         conditioning program under the direction of William H. Ash, M.D. 
 
         The program consisted primarily of exercise and dieting.  Dr. 
 
         Ash's report of January 18, 1984 showed claimant to be free from 
 
         acute symptoms and to have reduced his weight to 209 1/2 pounds.  
 
         Dr. Ash felt that claimant had probably stabilized at that time 
 
         as far as his back was concerned and that he was physically able 
 
         to resume employment (Ex. 12, p. 3).  During the time claimant 
 
         was in the program he made significant progress with regard to 
 
         weight loss and physical conditioning (Ex. 12).
 
         
 
              Claimant continued to voice complaints and under the 
 
         direction of J.C. Donahue, M.D., underwent diagnostic testing in 
 
         early
 
         
 
         
 
         1983. A CT scan was performed which was interpreted by A. E. 
 
         Berkow, M.D., as showing a possible conjoined nerve root or 
 
         herniated disc.  A myelogram performed approximately one month 
 
         later was interpreted by Dr. Berkow as showing a herniated disc 
 
         at the L5-Sl level rather than a conjoined nerve root (Ex. 11).
 
         
 
              Claimant was examined by Jerome G. Bashara, D.O., on 
 
         February 15, 1983 and again on May 21, 1985.  Dr. Bashara, after 
 
         evaluating the myelogram and CT scan, concluded that claimant had 
 
         a bulging disc at the L5-Sl level (Ex. 9, p. 17).  He felt that 
 
         claimant's overall condition presented a 10 percent 
 
         permanent,partial physical impairment of his body as a whole 
 
         related to the 1979 injury (Ex. 9, p. 12).  Dr. Bashara found no 
 
         neurological abnormalities (Ex. 9, p. 21).  When he examined 
 
         claimant in May, 1985 he found claimant's height to be five feet 
 
         six and one-half inches and his weight to be 236 pounds.  He 
 
         stated that claimant was overweight and that the increased weight 
 
         increases the symptoms of claimant's back condition.  He also 
 
         recommended that claimant lose weight (Ex. 9, pp. 32 & 33).
 
         
 

 
         
 
         
 
         
 
         SIMONS V. CATERPILLAR TRACTOR COMPANY
 
         Page   4
 
         
 
         
 
              Claimant was evaluated by John E. Sinning, Jr., M.D., on 
 
         February 22, 1984.  Dr. Sinning was of the opinion that 
 
         claimant's complaints of pain where apparently not related to his 
 
         injury.  He found no evidence of permanent physical impairment of 
 
         function or instability.  He felt that the abnormalities shown on 
 
         the CT scan and myelogram indicated a conjoined nerve root and 
 
         not disc herniation (Ex. 13).
 
         
 
              Claimant testified that his unemployment ran out in 1984 and 
 
         that he increased his efforts at job hunting but continued to be 
 
         unsuccessful.  He was notified that his employee status with 
 
         Caterpillar had been terminated due to the length of his layoff.  
 
         He estimated that 80 percent of the places that he sought work 
 
         were not hiring but that jobs were available and his back was a 
 
         problem for some of them.
 
         
 
              Claimant reported that during the time he was laid off and 
 
         searching for work someplaces he applied would not hire him due 
 
         to his back problems and he felt that he would have been 
 
         unemployed for a shorter amount of time if the back problem had 
 
         not existed.  Claimant agreed, however, that the local economy 
 
         was a limiting factor in his ability to obtain employment.
 
         
 
              Claimant stated that his job searching included Dubuque, 
 
         Clinton and the Quad Cities area.  He stated that he was 
 
         registered with the Department of Job Service.
 
         
 
              Claimant testified that he was unemployed until July 28, 
 
         1985 when he obtained a position with Huff Products in Maquoketa, 
 
         Iowa where he currently works as a tool maker and maintenance 
 
         person.  Claimant related that he runs a surface grinder, drill 
 
         grinder, lathe and cincinnati mill.  He described it as a fairly
 
         
 
         standard line of machines.  He stated that he is working in his 
 
         trade as a tool and die maker.  He stated that his job provides 
 
         him with a desk where he can sit when he needs to and that his 
 
         back is not generally a problem except for the times he operates 
 
         a machine.  His duties at Huff include showing salesman through 
 
         the plant in order to obtain contracts.  He stated that he can 
 
         work at bench level.  Claimant reported that he takes Valium on 
 
         damp days and Duradine approximately three times a week for 
 
         headaches.
 
         
 
              Claimant reported that he currently earns $5.72 per hour and 
 
         works a 48 hour week.  He reported that he has advanced as far as 
 
         he can without entering management.  He reported that he has no 
 
         fringe benefits except vacation.  He declined to accept a 
 
         position as the second shift foreman because he likes his current 
 
         job and also because the pay raise would have been of minimal 
 
         significance.
 
         
 
              Claimant is a high school graduate who has completed one 
 
         quarter of schooling at the Kirkwood Community College in 
 
         mechanical drafting and metal hardening.  He stated that it was a 
 
         two year course but could not afford to complete it.  He reported 
 
         that he had good average grades.  After attending Kirkwood he 
 
         worked in a sign shop making custom signs and Christmas 
 
         decorations.  He then held a job where he built and designed 
 
         machines that packaged products.  In doing so he read prints and 
 

 
         
 
         
 
         
 
         SIMONS V. CATERPILLAR TRACTOR COMPANY
 
         Page   5
 
         
 
         
 
         built the machines from scratch.  He testified that from the time 
 
         he left Kirkwood until he became employed with Caterpillar he was 
 
         not laid off and changed jobs only to obtain more money and 
 
         better benefits.  He felt that he was capable of performing the 
 
         two jobs he had held prior to being employed by Caterpillar and 
 
         that he also could perform the tool crib position but that he 
 
         would not be able to perform the other jobs he had performed for 
 
         Caterpillar.  Claimant reported that he was earning in excess of 
 
         $9.00 per hour and working 40 hours per week or more at the time 
 
         he was injured.
 
         
 
              Claimant stated that presently his back gets tight and 
 
         tense, especially in wet, cold weather.  He experiences migraine 
 
         headaches.  He stated that the muscles in the small of his back 
 
         spasm and twitch.  He reported that if he does not sit when this 
 
         occurs his knees can give way and he falls to the floor.  He 
 
         stated that the problems have existed since three weeks following 
 
         the 1979 accident and have changed little since.  Claimant 
 
         reported an inability to walk on uneven ground for more than two 
 
         hours or to lift more than 25 pounds.  He reported that standing 
 
         for extended periods is a problem.  Claimant stated that he can 
 
         bend forward if he bends his knees and goes slowly and that he 
 
         can bend to the sides and back to some degree.  He stated that he 
 
         avoids activities such as mowing the lawn, overhead work and 
 
         heavy maintenance around the house.
 
         
 
         
 
         
 
              Claimant acknowledged that he had been advised by his 
 
         physicians to lose weight.  He stated that he lost the weight 
 
         that they had requested but saw no difference in the condition of 
 
         his back due to weight changes.  He stated that his weight had 
 
         been in the range of 180 to 200 pounds during his adult life and 
 
         then increased when he was injured.  He stated that he has 
 
         weighed 200 pounds for four or five years.  Claimant denied 
 
         having any back problems or injuries prior to the one in 1979 
 
         which is the bases for this case.
 
         
 
              Claimant testified that he has no disabilities other than 
 
         those related to his back.  He stated that since starting to work 
 
         at Huff he has been examined and had medications but has engaged 
 
         in no other medical treatment.
 
         
 
              Joan Simons, claimant's wife, confirmed claimant's testimony 
 
         that he had no back problems prior to 1979 and that she has 
 
         observed changes since then.  She stated that he cannot bend, has 
 
         trouble sleeping and is limited in his ability to do yard work 
 
         and work on an automobile.  She stated that if he turns too 
 
         quickly, he hesitates.  She reported that she has assumed most of 
 
         the responsibility for mowing the lawn, shoveling the snow and 
 
         moving things at their home.  She also reported that claimant's 
 
         attitude sometimes exhibits depression and aggravation over his 
 
         discomfort and over the difficulty he had when he was unemployed.  
 
         She stated that it was a source of stress between them.  She 
 
         stated that the stress has been reduced since claimant obtained 
 
         his current employment.
 
         
 
              Michael E. Hengel, Sr., testified that he is the benefit 
 
         representative for the United Auto Workers for Caterpillar 
 

 
         
 
         
 
         
 
         SIMONS V. CATERPILLAR TRACTOR COMPANY
 
         Page   6
 
         
 
         
 
         employees.  Hengel testified that Caterpillar employees have a 
 
         number of fringe benefits, as do employees of most large 
 
         companies, but small employers generally offer less in the way of 
 
         benefits and wages.
 
         
 
              Hengel testified that the Quad Cities area has a very 
 
         depressed labor market and that of approximately 1200 Caterpillar 
 
         workers who were laid off, only 485 still have recall rights.  He 
 
         related that other employers in the Quad Cities area also have 
 
         many workers who are laid off.  Hengel confirmed that most large 
 
         employers have a long list of laid off employees who have recall 
 
         rights and preference for hiring.  He also confirmed that 
 
         claimant's layoff and termination were due only to seniority.  
 
         Hengel agreed that there are several hundred former Caterpillar 
 
         employees who are still laid off and without employment and that 
 
         the majority of them are physically able to work and available 
 
         for work.
 
         
 
              Hengel testified that many large employers customarily have 
 
         extended pre-employment physical examinations and will not hire 
 
         anyone who has a history of back problems.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on October 11, 1979 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman V. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The evidence shows the injury to have occurred on October 
 
         11, 1979 even though a different date of injury appears in the 
 
         petition and other filings in the case.  A difference in the 
 
         injury dates is found to not be prejudicial to defendant.
 
         
 
              The memorandum of agreement conclusively establishes that 
 
         claimant sustained an injury which arose out of and in the course 
 
         of his employment but does not establish the nature or extent of 
 
         disability.  Freeman v. Luppes Transport Company, Inc., 227 
 
         N.W.2d 143 (Iowa 1975).  It is not necessary for claimant to show 
 
         a change of condition in order to review the payment voluntarily 
 
         made by the employer. Mejorado v. Caterpillar Tractor Company, 
 
         1-1 State of Iowa - Industrial Commissioner Decisions 168 (1984).  
 
         Claimant's testimony regarding the fall into the tub at work is 
 
         corroborated by the medical reports made at the time of the 
 
         incident and his description of those events is found to be true 
 
         and correct.
 
         
 
              The parties stipulated to the extent that all of the healing 
 
         period has been compensated.  There remain no unpaid section 
 
         85.27 benefits, other than the claimed travel expenses.  The rate 
 
         of compensation has been stipulated to be $219.12 per week even 
 
         though some prior agency filings reflect a different rate.  The 
 
         stipulated rate is accepted as being the correct one.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 11, 1979 is causally 
 
         related to the disability on which he now bases his claim. Bodish 
 
         v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl 
 

 
         
 
         
 
         
 
         SIMONS V. CATERPILLAR TRACTOR COMPANY
 
         Page   7
 
         
 
         
 
         v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary. Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              All physicians who appear in the record of this case who 
 
         have expressed an opinion regarding the cause of claimant's 
 
         complaint, with the exception of Dr. Sinning, relate his 
 
         complaints to the injury of October 11, 1979.  A causal 
 
         connection is therefore found to exist between the injury and any 
 
         disability which currently exists.
 
         
 
              Several physicians, namely Drs. Bashara and Williams have
 
         
 
         rated claimant as having a 10 percent permanent partial physical 
 
         impairment.  Dr. Sinning, however, found no permanent physical 
 
         impairment.  Drs.  Bashara and Williams are accepted as being 
 
         correct in this regard.  A number of physicians have diagnosed 
 
         claimant as having a medically determinable condition.  Claimant 
 
         has continuing complaints which have endured for a substantial 
 
         period of time.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 

 
         
 
         
 
         
 
         SIMONS V. CATERPILLAR TRACTOR COMPANY
 
         Page   8
 
         
 
         
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted. Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              It appears that claimant is now appropriately employed.  He 
 
         does, nevertheless, have significant restrictions upon his 
 
         physical activities.  These restrictions have, in all likelihood, 
 
         limited his abilities to obtain employment.  They limit his 
 
         access to some of the jobs within his field of work as a tool and 
 
         die maker or machinist.
 
         
 
              One troubling part of this case is the fact that the 
 
         physicians have uniformly indicated that claimant's weight is 
 
         detrimental to him as it relates to the symptoms he experiences 
 
         regarding his back.  They have consistently recommended that he 
 
         lose weight.  The lengths to which a person will go in order to 
 
         obtain relief of their symptoms is a factor to be considered when 
 
         the severity of the symptoms is being evaluated.  It appears from 
 
         the record that claimant's weight was 230 pounds when he was 
 
         first seen by Dr. Rovine a few days following the injury.  It 
 
         dropped as low as 209 pounds when he was in the program directed 
 
         by Dr. Ash but it was 236 pounds when he was seen approximately a 
 
         year later by Dr. Bashara.  He appeared to be significantly 
 
         overweight at time of hearing.  The record does not reflect that 
 
         claimant has ever, since the date of injury, reduced his weight 
 
         to the point that he would be considered not overweight.  His 
 
         statement that the weight loss that he did achieve produced no 
 
         noticeable improvement in his condition is somewhat inconsistent 
 
         with the improvement that was noted by Dr. Ash.  It is found that 
 
         claimant's symptoms and complaints of
 
         
 
         discomfort are of a degree of severity that he is able to manage 
 
         and endure.
 
         
 
              When all applicable factors of industrial disability are 
 
         considered, it is found that the injury of October 11, 1979 
 
         produced a 15 percent permanent partial disability of the body as 
 
         a whole when it is evaluated industrially.
 
         
 
              The issue of a section 85.39 examination was litigated by 
 
         consent of the parties without objection.  The record does not 
 
         show claimant to have received a section 85.39 examination other 
 
         than the one which he seeks from Dr. Bashara.  The record 
 
         reflects that claimant had been evaluated for permanent 
 
         disability by Dr. Sinning prior to Dr. Basharals evaluation which 
 
         was made in 1985.  It is found that claimant is entitled to an 
 
         examination at the employer's expense under the provision of 
 
         section 85.39. The reasonable cost of such an examination is 
 
         found to be $300.00 as claimed.
 

 
         
 
         
 
         
 
         SIMONS V. CATERPILLAR TRACTOR COMPANY
 
         Page   9
 
         
 
         
 
         
 
              Claimant seeks mileage expenses as shown in the attachment 
 
         to the prehearing report for 1,219 miles.  When computed at $.24 
 
         per mile the entitlement is $292.56.
 
         
 
              Claimant also seeks taxation of costs as set forth in 
 
         attachment D to the prehearing report.  The items claimed are 
 
         proper elements of costs under Rule 500-4.33 and the amounts 
 
         claimed are also proper except that the expert witness fee for 
 
         Dr. Bashara should be limited to $150.00 in accordance with code 
 
         section 622.72. The total is therefore $433.10.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was injured on October 11, 1979 when he fell 
 
         backward into a tub at the Caterpillar Tractor Company plant in 
 
         Mt. Joy, Iowa.
 
         
 
              2.  Claimant is married, 35 years of age and has two 
 
         children.
 
         
 
              3.  Claimant earned an excess of $9.00 per hour at the time
 
              of injury but now earns $5.72 per hour.  He has 
 
         substantially less in the way of fringe benefits at his current 
 
         employment than what he had with Caterpillar.
 
         
 
              4.  Claimant presently experiences discomfort due to a 
 
         chronic lumbosacral strain of his back and has a possible 
 
         herniated or bulging intervertebral disc at the L5-Sl level.  He 
 
         is limited in his ability to bend, reach, lift, stoop, walk on 
 
         uneven ground or stand for extended periods of time.  He has a 
 
         permanent functional impairment in the range of 10 percent of the 
 
         body as a whole.
 
         
 
              5.  Claimant has a high school education and has completed
 
              one,quarter at the Kirkwood Community College in the field 
 
         of mechanical drawing and metals.
 
         
 
              6.  Claimant has worked building signs and also building 
 
         packaging machines which he constructed them from blueprints.  
 
         Claimant is a qualified machinist and tool and die maker.
 
         
 
              7.  Claimant is of at least average intelligence, 
 
         emotionally stable and motivated to be employed.
 
         
 
              8.  Claimant's inability to find work following his layoff 
 
         from Caterpillar was in part due to the back injury but the 
 
         primary factor was the depressed local economy and the 
 
         unavailability of jobs for machinists.
 
         
 
              9.  The fall of October 11, 1979 is a substantial factor in 
 
         producing the permanent partial disability with which claimant is 
 
         currently afflicted.  That disability is 15 percent permanent 
 
         partial disability of the body as a whole when evaluated 
 
         industrially.
 
         
 
              10.  In obtaining treatment claimant traveled a total of 
 
         1,219 miles, of which 720 miles is related to a section 85.39 
 
         examination.
 

 
         
 
         
 
         
 
         SIMONS V. CATERPILLAR TRACTOR COMPANY
 
         Page  10
 
         
 
         
 
         
 
              11.  Dr. Sinning, an employer retained physician, had 
 
         evaluated claimant's disability and claimant felt that the rating 
 
         was too low.
 
         
 
              12.  It was reasonable for claimant to obtain an independent 
 
         medical examination from Dr. Bashara.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury claimant sustained to his back on October 11, 
 
         1979 arose out of and in the course of his employment with 
 
         Caterpillar Tractor Company.
 
         
 
              3.  Claimant has a 15 percent permanent partial disability 
 
         of the body as a whole for which he is entitled to receive 75 
 
         weeks of compensation payable at the rate of $219.12 per week 
 
         commencing January 19, 1984.  Defendant is entitled to a credit 
 
         of 11 4/7 weeks against that award with the remainder being a net 
 
         amount due of 63 3/7 weeks.
 
         
 
              4.  Claimant is entitled to travel expenses under section 
 
         85.27 in the amount of $292.56.
 
         
 
              5.  Claimant is entitled to recover the cost of an 
 
         independent medical examination under the provisions of section 
 
         85.39 in the amount of $300.00.
 
         
 
              6.  Claimant is entitled to recover the costs of this 
 
         proceeding in the amount of $433.10.
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendant pay claimant 
 
         sixty-three and three-sevenths (63 3/7) weeks of compensation for 
 
         permanent partial disability at the rate of two hundred nineteen 
 
         and 12/100 dollars ($219.12) per week commencing March 9, 1984 
 
         after allowing defendant eleven and four-sevenths (11 4/1) weeks 
 
         of credit for benefits previously paid.
 
         
 
              IT IS FURTHER ORDERED that defendant pay claimant two 
 
         hundred ninety-two and 56/100 dollars ($292.56) representing 
 
         travel expenses.
 
         
 
              IT IS FURTHER ORDERED that defendant pay claimant three 
 
         hundred and no/100 dollars ($300.00) representing the cost of an 
 
         independent medical examination under section 85.39.
 
         
 
              IT IS FURTHER ORDERED that defendant pay the costs of this 
 
         action pursuant to Rule 500-4.33 in the amount of four hundred 
 
         thirty-three and 10/100 dollars ($433.10).
 
         
 
              IT IS FURTHER ORDERED that defendant file a claim activity 
 
         report as requested by this agency pursuant to Rule 500-3.1.
 
         
 
         
 

 
         
 
         
 
         
 
         SIMONS V. CATERPILLAR TRACTOR COMPANY
 
         Page  11
 
         
 
         
 
              Signed and filed this 17 day of September, 1986.
 
         
 
         
 
         
 
         
 
         
 
                                      MICHEAL G. TRIER
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C. Hedberg, Jr.
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1402.40; 1803
 
                                                    Filed September 17, 1986
 
                                                    MICHAEL G. TRIER
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         DENNIS K. SIMONS,
 
                                                     FILE NO. 614314
 
              Claimant,
 
                                                       R E V I E W
 
         VS.
 
                                                     R E 0 P E N I N G
 
         CATERPILLAR TRACTOR COMPANY,
 
                                                      D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         
 
         1402.40; 1803
 
         
 
              Claimant, a 35 year old machinist and tool and die maker, 
 
         who suffered a lumbosacral strain in a fall at work, which strain 
 
         became chronic, was awarded 15 percent permanent partial 
 
         disability.  The claimant had been advised uniformly by the 
 
         physicians who had seen him to lose weight but did not do so.  
 
         Such was held to be an indication that his complaints and 
 
         symptoms were of a degree he was capable of tolerating and that 
 
         they did not produce an extreme degree of discomfort.  Claimant 
 
         was from the Quad Cities area and the difficulty he experienced 
 
         in finding employment within his trade was found to be 
 
         attributable more to the local economy than to the condition of 
 
         his back.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUANITA MANN,                                    File No. 615959
 
         
 
              Claimant,                                    R E V I E W -
 
         
 
         vs.                                             R E O P E N I N G 
 
        
 
         
 
         ARMOUR-DIAL, INC.,                               D E C I S I O N
 
         
 
              Employer,                                      F I L E D
 
              Self-Insured,
 
              Defendant.                                    MAY 30 1989
 
         
 
                                                        INDUSTRIAL SERVICES
 
                                        
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by Juanita Mann against 
 
         Armour-Dial, Inc., her former employer, wherein she seeks section 
 
         85.27 benefits.  The employer responded to her claim with a 
 
         counter-claim seeking to reduce the extent of permanent partial 
 
         disability which was previously awarded by this agency.
 
         
 
              The case was heard and fully submitted at Burlington, Iowa 
 
         on September 28, 1988.  The record in the proceeding consists of 
 
         claimant's exhibits 1 through 11 and defendant's exhibits A, B 
 
         and C.  The record also contains the testimony of Juanita Mann, 
 
         Andrew Edgar and Richard Adkins.  Official notice was taken of 
 
         the prior appeal and review-reopening decisions entered in this 
 
         case.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              The appeal decision entered in this case on July 25, 1983 
 
         determined that Juanita Mann injured her left arm and shoulder 
 
         while at work for Armour-Dial in September, 1979 and that she 
 
         subsequently injured her low back at work for the employer on 
 
         October 10, 1979.  It was determined that she had permanent 
 
         partial impairment of her neck and left shoulder.  It was 
 
         determined that as a result of the injuries, claimant had a 
 
         permanent partial disability to the body as a whole of 30%. 
 
         Claimant testified that she had problems with her medical 
 
                                                  
 
                                                           
 
         expenses.  She stated that Dr. Mackenzie in Fort Madison had been 
 
         the authorized treating physician for her condition and that she 
 
         attempted to see him but that he declined and told her that he 
 
         could not treat her without approval from Armour-Dial.  Claimant 
 
         testified that she phoned Martha Lutenegger at Armour-Dial on 
 
         four occasions in February or March of 1984 and was told that 
 
         Martin Graber, the personnel manager, had decided that claimant 
 
         did not need additional medical treatment or medications and that 
 
         none would be authorized.  Claimant testified that she then 
 
         sought treatment from her own personal physician and was provided 
 
         medications for which she paid part of the cost.  Claimant 
 
         testified that for all the medical treatment that she has 
 
         received, part has been paid by the Armour-Dial group medical 
 
         insurance and that she has paid the difference.  Mann stated that 
 
         all bills contained in claimant's exhibit 1 were incurred in 
 
         obtaining treatment for the injuries which are the basis of this 
 
         claim.  Claimant testified that exhibit 2 was incurred for tests 
 
         arranged by Dr. Worrell at Iowa City and that the Armour-Dial 
 
         group insurance had paid Dr. Worrell.  Claimant related that 
 
         James Smith is a physical therapist whose services were arranged 
 
         by Dr. Worrell for treatment of the injuries that claimant had 
 
         sustained in this case.  Claimant stated that initially after the 
 
         injury occurred, she went to Dr. Schrier, the company physician, 
 
         who referred her to Koert Smith, M.D., who in turn referred her 
 
         to Dr. Worrell.  Claimant stated that Martha Lutenegger at 
 
         Armour-Dial had directed her to seek treatment from Dr. 
 
         Mackenzie.
 
         
 
              Claimant testified that the medications for which she seeks 
 
         reimbursement are used in treating pain in her low back and that 
 
         they are effective at stopping the pain.  Claimant stated that 
 
         the medications were initially prescribed by the company 
 
         physicians in the past and had been prescribed only for purposes 
 
         of the injury which is the basis of this case.  Claimant stated 
 
         that she has continued to incur expenses for medication as shown 
 
         in exhibit 6.
 
         
 
              Claimant testified that Dr. Mackenzie has moved out of state 
 
         and is no longer available.  She related that she formerly 
 
         received her prescription medications at Keasling Drug in Keokuk, 
 
         Iowa, but that she has been informed that Armour-Dial informed 
 
         Keasling Drug it should not charge her prescriptions to 
 
         Armour-Dial.
 
         
 
              Mann testified that when this case was originally tried, she 
 
         expected to return to work and was merely on layoff.  She stated 
 
         that she returned to work and had difficulties and eventually 
 
         quit in 1984 while she was in a layoff status.  Claimant 
 
         subsequently obtained employment with Sheller Globe in April, 
 
         1984.  She was initially paid $7.44 per hour, but has had pay 
 
         increases to her current earning rate of $10.55 per hour.  
 
         Claimant stated that the jobs she has performed at Sheller Globe 
 
         place less strain on the injured parts of her body.  Claimant 
 
         stated that since the original hearing and decision in this case, 
 
         her pain has increased and the strength of the pain medication 
 
                                                  
 
                                                           
 
         which she takes has also increased.  Claimant stated that almost 
 
         any activity causes pain to her back and that the strain on her 
 
         back increases in proportion to the amount of weight she handles.  
 
         Claimant described her job as a production worker at Armour-Dial 
 
         and also the job she has at Sheller Globe.  Claimant related that 
 
         all of the jobs she has held at Sheller Globe are more strenuous 
 
         than the job of inspecting Vienna sausages which she had held at 
 
         Armour-Dial.  Claimant stated that she has had to be taken off 
 
         some jobs at Sheller Globe due to her condition.  Claimant 
 
         related that she was injured at Sheller Globe in 1987, but that 
 
         the injury healed and she returned to the same condition as had 
 
         existed prior to that injury.
 
         
 
              Andrew Edgar, the environment services manager for Sheller 
 
         Globe, related that claimant had injured her back, shoulder and 
 
         neck in late 1987.  Edgar testified that claimant now is employed 
 
         as a finish operator where she handles rubber weatherstrips 
 
         weighing approximately one-half of one pound and that the only 
 
         heavier lifting she would perform would be to obtain a pallet. 
 
         Edgar stated that claimant moved to her current job due to her 
 
         own request.  The previous job involved handling auto ashboards 
 
         and operating a welding machine.  Edgar stated that the 
 
         weatherstripping job is considered to be more desirable than 
 
         welding.
 
         
 
              Richard Adkins, the current Armour-Dial employment relations 
 
         manager, was employed at Sheller Globe when claimant was 
 
         interviewed and hired.  Adkins stated that when claimant was 
 
         hired, she admitted no disability.  Adkins stated that claimant's 
 
         work as a finish mold operator is much more strenuous than the 
 
         inspector job at Armour-Dial.  Adkins stated that claimant was 
 
         earning $10.69 per hour when she left Armour-Dial, but that 
 
         subsequently there was a general wage rate reduction and that in 
 
         October, 1986, claimant would have been earning $10.50 per hour 
 
         if she had remained with Armour-Dial.
 
         
 
              Adkins testified that James Kannenberg, M.D., is now the 
 
         company physician and that he is who claimant should contact if 
 
         she needs treatment for this injury.  Adkins further stated that 
 
         in order to obtain payment for prescription medications, claimant 
 
         should contact him as he is the person in the office to contact 
 
         in order to obtain payment of medical bills.  It was stipulated 
 
         by the parties at the commencement of the hearing that the last 
 
         payment of weekly compensation was paid to claimant on April 22, 
 
         1986.  The file discloses that claimant's petition for 
 
         review-reopening was filed June 21, 1984.
 
         
 
              Employer's exhibit C indicates that claimant was told that 
 
         the company physician did not believe her complaints which were 
 
         made in September, 1983 were related to her,injury of 1979, so she 
 
         should see her personal physician for her shoulder complaints.  
 
         The exhibit further indicates that claimant left work early on 
 
         September 7, 1983 due to pain in her shoulder and back and was 
 
         thereafter seen at the Keokuk Area Hospital and taken off work due 
 
         to her complaints.
 
                                                  
 
                                                           
 
         
 
              E. A. Dykstra, M.D., an orthopaedic surgeon who treated 
 
         claimant and whose deposition was received into evidence at the 
 
         prior hearing in this case, stated in that deposition:
 
         
 
              I think for the long term good of her shoulder she would be 
 
              better off in a job that did not require a continuing 
 
              repetitive motion.  Once this -- Once the cycle is started, 
 
              she's bound to have repeated and repeated flares. 
 
              Occasionally these will result in the need for surgical 
 
              intervention with a partial resection of the bursa and/or in 
 
              her case a repair of a cuff.
 
         
 
              The medical expenses for which claimant seeks payment are 
 
         included in claimant's exhibits 1 through 7.  After reviewing the 
 
         same and eliminating duplications, the amounts which claimant 
 
         seeks to recover are as follows:
 
         
 
              Keokuk Area Hospital                        $ 128.04 
 
                 (balance paid by Armour-Dial group insurance)
 
              Mercy Hospital                                537.65
 
              James B. Smith, L.P.T.                         35.00
 
              Osco Drug                                     729.69
 
              Total expenses claimed                     $1,430.38
 
         
 
 
 
                          
 
                                                           
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              A party seeking review-reopening of an award must 
 
         demonstrate by a preponderance of the evidence that a change of 
 
         condition occurred subsequent to the original award.  Stice v. 
 
         Consolidated Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 
 
         (1940).  A change in the claimant's condition which was not 
 
         contemplated at the time of the initial award will justify 
 
         review-reopening.  Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
         N.W.2d 109 (1957); Fischer v. W. F. Priebe & Co., 178 Iowa 611, 
 
         118 N.W.2d 570 (1962).  A change of condition may be a change of 
 
         physical condition or a change of economic circumstances which 
 
         affects the employee's earning capacity.  McSpadden v. Big Ben 
 
         Coal Co., 288 N.W.2d 181 (Iowa 1980), Blacksmith v. 
 
         All-American.Inc., 290 N.W.2d 348 (Iowa 1980).
 
         
 
              Since claimant's last payment of compensation was paid on 
 
         April 22, 1986, the employer's attempt to have the amount of 
 
         industrial disability reduced is not barred by the provisions of 
 
         Code section 85.26.
 
         
 
              The primary evidence upon which the employee seeks to reduce 
 
         claimant's industrial disability award is that she now handles 
 
         weights at Sheller Globe which are heavier than the weights which 
 
         she handled when she was employed at Armour-Dial.  The weights 
 
         claimant has handled at Sheller Globe are still in the range of 
 
         what would be considered light exertion.  It is within the range 
 
         of activity that the medical practitioners felt claimant was 
 
         capable of performing.  The change is not substantial.  No 
 
         physician has identified any particular change in claimant's 
 
         physical condition.  While claimant was unemployed at the time of 
 
         the initial hearing, it is apparent that it was expected she 
 
         would gain employment.  If it had been anticipated that she would 
 
         not be able to gain employment, she would have been categorized 
 
         as totally disabled.  In order to obtain other employment, 
 
         claimant experienced a reduction in wages.  She was off work for 
 
         a time. The evidence fails to show that there has been anything 
 
         that occurred with regard to claimant's economic circumstances 
 
         which would not have been within the contemplation of the deputy 
 
         industrial commissioner that originally heard the case or of the 
 
         deputy industrial commissioner who issued the appeal decision. 
 
         Defendant's request to reduce the industrial disability award is 
 
         therefore denied.  Since the entire award has been previously 
 
         paid, the issue is, in all likelihood, moot, but the ruling 
 
         herein is made on the merits in the event that any further 
 
         litigation should arise in this case.  Claimant's claim for an 
 
         increased industrial disability award is likewise denied due to 
 
         the lack of a showing of any substantial change in circumstances 
 
         that would not have been within the contemplation of the hearing 
 
         or appeal deputy commissioner.
 
         
 
              Claimant seeks to recover the medical expenses previously set 
 
         forth.  The record of this case contains no direct medical 
 
         evidence regarding whether or not the medical treatment and 
 
         expenses are causally connected to the original work injury.  
 
                                                  
 
                                                           
 
         While proximate cause is often within the realm of expert medical 
 
         testimony, it is not necessarily so under all circumstances or in 
 
         every case.  In some matters, the chain of causation is so clear 
 
         that the causal connection is apparent even to individuals without 
 
         medical training.  In a workers' compensation case tried to a 
 
         deputy industrial commissioner, agency expertise and experience 
 
         may be relied upon when deciding the case.  Iowa Code section 
 
         17A.14(5).
 
         
 
              The charges with Mercy Hospital and James Smith, L.P.T., 
 
         were all incurred prior to December 13, 1982, the date of the 
 
         original hearing in this case.  Such charges might have been 
 
         susceptible to a defense in the nature of res judicata or 
 
         preclusion since they apparently existed but were not raised at 
 
         the time of the prior hearing.  Nevertheless, preclusion is an 
 
         affirmative defense and it was not raised in this case.  It is 
 
         determined that the charges were incurred for treatment of the 
 
         injuries which are the basis for this claim.  The charges are 
 
         therefore the responsibility of the employer.
 
         
 
              The charges claimant incurred at the Keokuk Area Hospital 
 
         were incurred during the time that she continued to be employed 
 
         by Armour-Dial.  There is no evidence whatsoever that anything 
 
         other than either the original injury or some aggravation of that 
 
         injury which was produced by her continued employment activities 
 
         at Armour-Dial produced the necessity for medical treatment.  In 
 
         view of the fact that permanent impairment was determined to have 
 
         resulted from the injuries and in particular the statements from 
 
         Dr. Dykstra regarding the future prognosis, it is certainly to be 
 
         expected that a need for further medical treatment could quite 
 
         possibly arise.  It is noted that in employer's exhibit C, the 
 
         employer specifically confirms that it directed claimant to see 
 
         her own personal physician for her shoulder complaints. 
 
         Accordingly, any lack of authorization defense must fail.  
 
         Armour-Dial is therefore responsible for all of claimant's 
 
         charges at the Keokuk Area Hospital.  After deducting the group 
 
         insurance payments for which the employer is entitled to credit 
 
         under Code section 85.38(2), the balance of $128.04 must be paid 
 
         by Armour-Dial.
 
         
 
              Code section 85.27 gives an employer the legal authority to 
 
         select the providers of medical care when an employee sustains an 
 
         injury which arises out of and in the course of employment.  The 
 
         statute also, however, gives the employer the duty to provide 
 
         prompt, reasonable treatment.  The evidence presented in this 
 
         case is that when claimant sought to return to Dr. Mackenzie who 
 
         had been a duly-authorized employer-selected physician, she was 
 
         informed by the doctor that Armour-Dial would not authorize 
 
         further treatment.  At the time of claimant's injury, Dr. Schrier 
 
         was the authorized company physician.  At some point in time 
 
         which does not appear in the record, the company physician 
 
         apparently changed to Dr. Kannenberg.  There is no evidence in 
 
         the record from the employer which indicates that claimant was 
 
         ever advised that treatment for her condition should be sought 
 
         from Dr. Kannenberg.  If an employer chooses to exercise its 
 
                                                  
 
                                                           
 
         right to select medical care, it must somehow communicate its 
 
         choice to the employee.  Where an employer simply refuses to 
 
         provide treatment, the employee is free to seek treatment of the 
 
         employee's choice. The only limits upon the employer's liability 
 
         under those circumstances are the limits that the care must have 
 
         been reasonable, necessary and causally related to the employment 
 
         injury.  All those elements are present in this case.  The 
 
         prescription medications are shown by the evidence to have been 
 
         the same medications which had been previously prescribed for the 
 
         same condition by the authorized treating physicians.  The fact 
 
         that they are prescribed by a physician chosen by the claimant, 
 
         after the employer has refused to provide treatment, does not 
 
         give grounds for a lack of authorization defense.  The nature of 
 
         the medications and claimant's complaints are adequate evidence 
 
         that since the complaints are essentially the same and the 
 
         medications are essentially the same, the medications were 
 
         prescribed for treating the same symptoms and complaints, just as 
 
         had been previously done prior to the hearing that was held in 
 
         1982.  The prescription medications were obtained at a time, 
 
         however, when claimant was employed by Sheller Globe.  There is 
 
         evidence in the record that claimant sustained an injury with 
 
         Sheller Globe in December of 1987.  However, all the 
 
         prescriptions were issued in the time span commencing with July 
 
         25, 1986 and running through July 27, 1987.  It can be reasonably 
 
         urged that claimant's work at Sheller Globe may have aggravated 
 
         the condition which was originally caused by the Armour-Dial 
 
         injury.  Even if such were true, however, the fact remains that 
 
         for a cause to be proximate, it must be a substantial factor in 
 
         producing the result.  It need not be the only cause.  Blacksmith 
 
         v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).  
 
         Accordingly, Armour-Dial is responsible for payment of claimant's 
 
         expenses with Osco Drug in the amount of $729.69.
 
         
 
              Claimant seeks a penalty under the provisions of the fourth 
 
         unnumbered paragraph of Code section 86.13.  There is certainly 
 
         sufficient evidence in the case to conclude that the failure to 
 
         pay the expenses with Keokuk Area Hospital, Mercy Hospital and 
 
         James Smith was unreasonable.  The Iowa Supreme Court, however, 
 
         has ruled that the penalty provisions of Code section 86.13 do 
 
         not apply to medical expenses covered under Code section 85.27.  
 
         Klein v. Furnas Electric Co., 384 N.W.2d 370 (Iowa 1986).  
 
         Despite the fact that the Code uses the word "benefits" rather 
 
         than "weekly compensation," the Iowa Supreme Court concluded that 
 
         the penalty applies only to weekly compensation.  The court 
 
         recently held that the term "compensation" when used in section 
 
         85.22 includes benefits payable under section 85.27.  Johnson v. 
 
         Harlan Community School Dist., 427 N.W.2d 460 (Iowa 1988).  It is 
 
         possible that a bad faith failure to settle tort could be pursued 
 
         under the theory of Dolan v. Aid Insurance Co., 431 N.W.2d 790 
 
         (Iowa 1988) since the workers' compensation statute has been 
 
         declared to not provide a remedy for bad faith claims adjustment 
 
         practices regarding medical expenses.  It is not impossible that 
 
         the court might allow the claim to be litigated in the tort forum 
 
         since the claim arises from claim handling practices, rather than 
 
         directly from the injury itself.  If faced with the issue, the 
 
                                                  
 
                                                           
 
         court could also reverse Klein and hold that 86.13 does apply to 
 
         section 85.27 benefits.  This would retain the workers' 
 
         compensation statutes as the exclusive remedy even for the claims 
 
         arising from claim handling practices.  The undersigned is, 
 
         however, bound by the existing precedents and is not free to 
 
         overrule Klein. Accordingly, claimant's claim for a penalty under 
 
         Code section 86.13 must be denied.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  There has not been any substantial change in claimant's 
 
         physical or economic condition which was not within the 
 
         contemplation of the deputy who originally heard this case or of 
 
         the deputy who issued the appeal decision in order to permit 
 
         reopening of the award for permanent partial disability.
 
         
 
              2.  The medical expenses claimant incurred with Keokuk Area 
 
         Hospital, Mercy Hospital and James Smith, L.P.T., were incurred 
 
         for medical expenses used to treat the injury that claimant 
 
         sustained on September 28, 1979.
 
         
 
              3.  The expenses which claimant incurred with the Keokuk 
 
         Area Hospital, Mercy Hospital and James Smith, L.P.T., were 
 
         expressly or implied authorized by the employer.
 
         
 
              4.  The expenses claimant incurred with Osco Drug were 
 
         incurred at a time when the employer refused to provide medical 
 
         treatment for the claimant.
 
         
 
              5.  The expenses claimant incurred with Osco Drug were 
 
         reasonable treatment for the injuries she sustained on September 
 
         28, 1979.
 
         
 
                              
 
                                                  
 
                                                           
 
              6.  The injury claimant sustained on September 28, 1979 has 
 
         been previously been determined to have caused permanent 
 
         disability which had the potential for requiring future medical 
 
         treatment and that injury is a substantial factor in producing 
 
         the need for the prescription medications which claimant obtained 
 
         from Osco Drug.
 
         
 
              7.  The expenses incurred with Osco Drug are reasonable.
 
                                        
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  There has been no change of condition which would 
 
         warrant review of the permanent partial disability award which 
 
         was previously made in this case.
 
         
 
              3.  Defendant is responsible for payment of the following 
 
         medical expenses incurred by claimant:
 
         
 
              Keokuk Area Hospital                $  128.04
 
              Mercy Hospital                         537.65
 
              James  B.  Smith,  L.P.T.               35.00
 
              Osco Drug                              729.69
 
              Total expenses claimed              $1,430.38
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendant pay the following of 
 
         claimant's medical expenses:
 
         
 
              Keokuk Area Hospital                 $  128.04
 
              Mercy Hospital                          537.65
 
              James B. Smith, L.P.T.                   35.00
 
              Osco Drug                               729.69
 
              Total expenses claimed               $1,430.38
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against defendant pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Signed and filed this 3Oth day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
                                                  
 
                                                           
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa  52632
 
         
 
         Mr. Gregory J. Humphrey
 
         Attorney at Law'
 
         627 Avenue G
 
         Fort Madison, Iowa  52627
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                  
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                           1403.30, 2501, 2905
 
                                            Filed May 30, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUANITA MANN,
 
         
 
              Claimant,                               File No. 615959
 
         
 
         vs.                                            R E V I E W
 
         
 
         ARMOUR-DIAL, INC.,                          R E 0 P E N I N G
 
         
 
              Employer,                               D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         2905
 
         
 
              A small increase in the exertion level of claimant's 
 
         employment was held to be an insufficient change to warrant 
 
         review of the prior award.
 
         
 
         1403.30, 2501
 
         
 
              Where employer refused to authorize any treatment, claimant 
 
         was free to select her own care and the employer's defense of 
 
         lack of authorization failed.  Employer's belated offer of care 
 
         at the time of hearing was too late to remedy its prior denial of 
 
         care and treatment.  Where an injury produced permanent 
 
         disability and the claimant subsequently obtained employment with 
 
         a new employer, the fact that the employment with the new 
 
         employer may have aggravated the condition did not relieve the 
 
         original employer from liability since the original injury 
 
         remained a substantial factor and the underlying factor in the 
 
         need for the additional medical care and the prescription 
 
         medications.