BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEE RICHARD JOHNSON,
 
         
 
              Claimant,
 
                                                 File No. 643948
 
         vs.
 
         
 
         SCHWANS SALES ENTERPRISES,               A P P E A L
 
         INC.,
 
                                                D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         temporary total disability and medical benefits, and claimant 
 
         cross-appeals.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening proceeding; and joint exhibits 1 through 49.  
 
         Both parties filed briefs on appeal, and defendants filed a 
 
         rebuttal brief.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issue on appeal:
 
         
 
              Whether the deputy had sufficient facts in the record to 
 
         make a decision granting claimant additional temporary total 
 
         disability benefits and medical expenses related to his back 
 
         problem in 1984 after the settlement agreement.
 
         
 
              Claimant states the following issues on cross-appeal:
 
         
 
              1.  Did the deputy correctly rule that claimant had 
 
         established causal connection between the admitted compensable 
 
         low back injury of June 17, 1980 and the pain claimant 
 
         experienced in his low back on May 21, 1984?
 
         
 
              2.  Should claimant be awarded additional temporary total 
 
         disability benefits beyond the May 21 to August 19, 1984 time 
 
         period?
 
         
 
              3.  Did claimant establish a change of condition 
 
         sufficient to justify an award of additional permanent partial 
 
         disability benefits?
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANS SALES ENTERPRISES, INC.
 
         PAGE   2
 
         
 
         
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Briefly stated, claimant was employed by defendants as a 
 
         route delivery driver.  Claimant drove over a bump on June 17, 
 
         1980 and struck his head, and later began to suffer back pain and 
 
         pain in his right thigh.
 
         
 
              Previously, claimant suffered an injury while driving a 
 
         tractor in 1972 which resulted in pain in claimant's left hip, 
 
         extending down into the left leg.  Claimant was off work for 
 
         three months and received healing period or temporary total 
 
         disability benefits for the 1972 injury.
 
         
 
              A settlement agreement concerning the June 17, 1980 injury 
 
         providing for healing period benefits and 75 weeks of permanent 
 
         partial disability benefits was submitted by the parties.  After 
 
         the filing of medical reports from David F. Poe, M.D., and John 
 
         R. Walker, M.D., giving claimant a rating of impairment of 10 
 
         percent of the body as a whole, the settlement was approved by 
 
         this agency on August 31, 1982.  Claimant testified that at the 
 
         time of the settlement, he thought he would be able to continue 
 
         working.
 
         
 
              Claimant worked for Bishop Farms at the time of the 
 
         settlement planting crops, plowing, harvesting, hauling grain, 
 
         clearing land and other manual labor.  Claimant testified that he 
 
         was initially led to believe this was a managerial job that did 
 
         not require physical labor.  Claimant worked at this seasonal job 
 
         from April 1982 until December 1982.  Claimant acknowledged that 
 
         he felt this job was beyond his physical capabilities, but that 
 
         he continued with the job out of financial need.
 
         
 
              After leaving Bishop Farms, claimant was unemployed until 
 
         June 1983.  Claimant stated he sent out 100 job applications 
 
         without finding employment.  Beginning in June 1983, claimant 
 
         engaged in selling insurance.
 
         
 
              On May 24, 1984, claimant attended an athletic event in Des 
 
         Moines and when he returned, he experienced pain in his back 
 
         which he attributed to riding in the car.  Claimant testified he 
 
         developed a lump at the same area as the pain from the June 1980 
 
         injury.  Claimant sought medical treatment and was later 
 
         hospitalized.
 
         
 
              Claimant indicated that since the May 1984 incident, his 
 
         right leg is now frequently numb whereas at the time of the 
 
         settlement in August 1982, he had no numbness.  Claimant stated 
 
         that any physical activity, including riding in a car, brings on 
 
         the numbness.  Claimant testified that as a result of his 
 
         physical problems, he is unable to drive any distances and has 
 
         lost insurance business in communities outside of his immediate 
 
         area.  However, claimant also attributed the failure of his 
 
         insurance business to a deteriorating economy in the Waterloo 
 
         area.
 
         
 
              Claimant stated he currently cannot lift 20 to 40 pounds 
 
         without resulting pain, cannot drive more than 50 to 70 miles per 
 
         day, and has problems with bending, stooping, and sleeping that 
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANS SALES ENTERPRISES, INC.
 
         PAGE   3
 
         
 
         he did not have in August 1982.  Claimant stated that his back 
 
         problem was "minimal" from 1982 until 1984, and is now stable but 
 
         worse than it was in August 1982.  Claimant indicated that in 
 
         1982 he had some days without pain, but he now has pain daily.  
 
         Claimant described the pain from the 1984 incident as occurring 
 
         on the right side and two to three inches higher than the 1980 
 
         pain.
 
         
 
              Claimant discontinued his insurance business in March 1986. 
 
          Claimant then went into motel management until October 1, 1986. 
 
          Claimant managed a motel in Wyoming for 18 days, then returned 
 
         to Iowa.  Claimant later managed a motel in Kansas, but again 
 
         returned to Iowa.  Claimant acknowledged that in both instances, 
 
         he quit the positions because he and his wife desired to return 
 
         to Iowa and to be nearer their children.
 
         
 
              In his deposition, Dr. Poe testified in regards to his 
 
         assignment of a 10 percent rating of impairment for claimant in 
 
         1981 as follows:
 
         
 
              Q.  What were your future expectations for him at that 
 
              time as far as his prognosis?
 
         
 
              A.  I believe that his lumbar spine problems would be 
 
              characterized by intermittent flare-ups of backaches.  
 
              Also periods where he would be completely pain free.
 
         
 
              Q.  By intermittent flare-ups, what do you mean, once a 
 
              year, twice a year?
 
         
 
              A.  It would be impossible to scientifically predict 
 
              how often he would flare-up.  It might be once a year, 
 
              it might be once in ten years.
 
         
 
              Q.  So when you made the rating you felt there would be 
 
              periods of time when he had no symptoms and other times 
 
              that he would be down with pain, is that correct?
 
         
 
              A.  Yes, sir.
 
         
 
         (Joint Exhibit 14, pages 17-18)
 
         
 
              Dr. Poe stated that he saw claimant in June 1984, and 
 
         released claimant to light duty work in October 1984.  Claimant 
 
         was hospitalized with another flare-up of pain on December 12, 
 
         1984 and released to light duty work again by Dr. Poe on January 
 
         15, 1985.
 
         
 
              Dr. Poe stated on August 14, 1985:
 
         
 
              I believe his permanent disability would be in the 
 
              range of ten percent (10%) permanent whole body.
 
         
 
                 At the present time I would limit Richard's amount 
 
              of bending, twisting, lifting and walking if this is 
 
              possible.  Certainly I would avoid any prolonged abuse 
 
              and perhaps even given him a weight restriction of 25 
 
              lbs.
 
         
 
                 It is my impression that Richard's problem with 
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANS SALES ENTERPRISES, INC.
 
         PAGE   4
 
         
 
              obesity would aggravate any lumbar disc disease 
 
              problems.
 
         
 
                 My final diagnosis is lumbar disc disease at L4 with 
 
              myofascial pain syndrome.
 
         
 
                 With regard to prognosis I believe this would have 
 
              to be guarded for Rich.  It is my impression that it 
 
              may be anticipated with his degenerative disc disease 
 
              to go on to repetitive episodes of flareups with pain 
 
              that may respond to various conservative measures.
 
         
 
                 It is my impression that Rich has lumbar disc 
 
              disease aggravated by repetitive episodes of abuse.  It 
 
              would be impossible to assign 100% of all his present 
 
              problems to that single accident in 1980 and more 
 
              likely his present problems present a lifetime of 
 
              smaller abuses.
 
         
 
         (Joint Exhibit 12)
 
         
 
              On September 18, 1985, Dr. Poe stated:
 
         
 
              It would be impossible to attribute this disc failure 
 
              to any single episode but more likely is related to a 
 
              life time of abuse.
 
         
 
                 Specifically I would be unable to causedly [sic] 
 
              relate the relation of all of Mr. Johnson's spine 
 
              problems to one single automobile accident on June 17, 
 
              1980.  I appreciate that there may be some causal 
 
              relationship but there would be no scientific basis to 
 
              attribute all his lumbar disc degenerative problems to 
 
              his single episode.  With regard to repetitive episodes 
 
              of abuse causing longstanding disc deterioration, I am 
 
              certain that any normal life time activity can cause 
 
              increased wear of lumbar disc and this would be any 
 
              activity that involves bending, lifting, stooping and 
 
              twisting.
 
         
 
         (Jt. Ex. 13)
 
         
 
              In his deposition, Dr. Poe testified as to claimant's 
 
         condition as of December 13, 1985:
 
         
 
              Q.  ...What limitations did you feel would be 
 
              appropriate for him on December 13, 1985?
 
         
 
              A.  I think he would be fit for light duty only to 
 
              avoid repetitive bending, lifting and stooping and to 
 
              avoid heavy lifting.
 
         
 
              Q.  Can you be more specific as to what you mean by 
 
              heavy lifting, 10 pounds, 20 pounds?
 
         
 
              A.  I don't know if it's possible to be that scientific 
 
              and be that precise.  There would be times where he 
 
              could lift 50 pounds without pain and there would be 
 
              other times where he couldn't lift a feather.
 
         
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANS SALES ENTERPRISES, INC.
 
         PAGE   5
 
         
 
              Q.  But you are not putting any specific limitation on 
 
              him, is that correct?
 
         
 
              A.  No, sir.
 
         
 
                  ...
 
         
 
              Q.  You do not feel he is a surgical candidate or 
 
              anything of that nature at this time?
 
         
 
              A.  That's correct.
 
         
 
              Q.  ItOs the same as 1980 and '82?
 
         
 
              A.  Yes, sir.
 
         
 
                  ...
 
         
 
              Q.  At the time you saw him in December of 19, December 
 
              13, 1985, was he complaining of any numbness or 
 
              anything in his legs or weakness in his lower 
 
              extremities?
 
         
 
              A.  He complained of midline pain.  I saw no reference 
 
              of any extremity discomfort or numbness.
 
         
 
         (Jt. Ex. 14, pp. 28-29, 31)
 
         
 
              Claimant weighs approximately 285 pounds, and weighed over 
 
         300 pounds approximately five months before the hearing.  
 
         Claimant at one time weighed 350 pounds.  Claimant acknowledged 
 
         that his doctors have told him his weight aggravates his back 
 
         problem.  Claimant stated he had a thyroid operation previously 
 
         that affected his metabolism.  Claimant testified that in 
 
         approximately 1963, he lifted weights, and could bench press 360 
 
         pounds and "dead lift" 480 pounds.  Claimant also served as an 
 
         emergency medical technician on an ambulance crew at the time of 
 
         the hearing, but stated that he avoided lifting patients, and 
 
         also served on a volunteer fire department.  The parties 
 
         stipulated that claimant's rate was $211.30, and that claimant's 
 
         medical bills were reasonable in amount but defendants disputed 
 
         their relationship to the injury of June 1980.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Upon review-reopening, claimant has the burden to show that 
 
         he has suffered a change in his condition since the original 
 
         award was made.  Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 21 
 
         (1959).  A mere difference of opinion of experts as to the 
 
         percentage of disability arising from an original injury would 
 
         not be sufficient to justify a different determination on a 
 
         petition for review-reopening.  Rather, such a finding must be 
 
         based on a worsening or deterioration of the claimant's condition 
 
         not contemplated at the time of the first award.  Bousfield v. 
 
         Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  A failure 
 
         of a condition to improve to the extent originally anticipated 
 
         may also constitute a change of condition.  Meyers v. Holiday Inn 
 
         of Cedar Falls, 271) N.W.2d 24 (Iowa 1978).
 
         
 
              The Iowa Workers' Compensation Act compensates individuals 
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANS SALES ENTERPRISES, INC.
 
         PAGE   6
 
         
 
         for loss of earning capacity because of work-related injuries not 
 
         for the loss of earning capacity because of career choices.  
 
         McCarty v. DeKalb Pfizer Genetics, Inc., Appeal Decision filed 
 
         September 12, 1986.
 
         
 
                                     ANALYSIS
 
         
 
              On review-reopening, claimant has the burden to show a 
 
         change of condition not contemplated at the time of the original 
 
         award of benefits.  There was no arbitration decision in this 
 
         case, as the parties entered into an agreement of settlement 
 
         which was approved by this agency on August 31, 1982.  Claimant 
 
         has the burden to show he has suffered a change of condition not 
 
         contemplated by that agreement.
 
         
 
              The settlement agreement in this case merely recites that 
 
         claimant will be paid an additional 15 weeks of healing period 
 
         benefits and 75 weeks of permanent partial disability benefits 
 
         representing 15 percent industrial disability.  In addition, 
 
         medical reports were later filed showing that claimant was given 
 
         ratings of impairment of 10 percent of the body as whole by two 
 
         physicians prior to the settlement.  These reports constitute 
 
         part of the settlement agreement.
 
         
 
              However, the settlement agreement does not indicate the 
 
         contemplation of the parties at the time of the settlement as to 
 
         non-physical factors affecting claimant's disability.  Claimant 
 
         has the burden upon review-reopening to show a change of 
 
         condition not contemplated by the original award.  The settlement 
 
         is silent on the contemplation of the parties as to non-physical 
 
         conditions.  It is impossible to determine if there has been a 
 
         non-physical change of condition since the settlement that was 
 
         not contemplated by the parties.
 
         
 
              Even if a determination as to non-physical change of 
 
         conditions could be made, the record shows that claimant has not 
 
         suffered a non-physical change of condition caused by his 
 
         injury.
 
         
 
              Claimant has suffered a loss of earnings.  There is no 
 
         showing that claimant has suffered a loss of earning capacity.  
 
         Claimant's work at the time of the settlement was seasonal.  
 
         Claimant's insurance work failed at least in part due to economic 
 
         conditions.  Claimant quit two motel management jobs for personal 
 
         reasons unrelated to his injury.  Thus, claimant's present loss 
 
         of income is of his own making.
 
         
 
              The record shows that claimant was given two ratings of 
 
         impairment of 10 percent of the body as a whole by two physicians 
 
         prior to the settlement.  The medical evidence on 
 
         review-reopening shows that Dr. Poe still rates claimant's 
 
         impairment at 10 percent of the body as a whole.  In addition, 
 
         Dr. Poe testified that at the time he gave the initial rating of 
 
         impairment in 1981, it was contemplated that claimant would 
 
         continue to suffer flareups of back pain and discomfort.  
 
         Claimant's 1984 pain incident was not the result of trauma, but 
 
         resulted from a ride in a car.  This type of flare-up and 
 
         claimant's discomfort when riding in a car appears to have been 
 
         contemplated at the time of the agreement of settlement.  Dr. Poe 
 
         released claimant for light duty prior to the 1982 settlement.  
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANS SALES ENTERPRISES, INC.
 
         PAGE   7
 
         
 
         In the review-reopening hearing, Dr. Poe stated that claimant is 
 
         still eligible for light duty work.  There was no indication in 
 
         the record that claimant's condition was expected to improve at 
 
         the time of the settlement.  There is an indication that 
 
         claimantOs condition is in part affected by his failure to lose 
 
         weight.  Thus, there is no physical change in claimant's 
 
         condition.
 
         
 
              Claimant has also sought additional temporary total 
 
         disability benefits and medical benefits.  Claimant bears the 
 
         burden of showing that the time he was hospitalized or otherwise 
 
         unable to work and the medical benefits he received were causally 
 
         related to the injury of June 17, 1980.
 
         
 
              The record contains the testimony of Dr. Poe, stating that 
 
         he could not causally connect claimant's present back problems 
 
         following the May 24, 1984 incident to the original June 17, 1980 
 
         injury the settlement agreement was based on.  On the contrary, 
 
         Dr. Poe described both the 1984 and 1980 incidents as part of a 
 
         lifelong ongoing process.  There is therefore no medical evidence 
 
         that claimant's hospitalization, convalescence, and medical 
 
         expenses following the 1984 pain incident were causally related 
 
         to the original injury in June 1980.
 
         
 
              In addition, the evidence suggests other possible causes for 
 
         claimant's 1964 back pain.  Claimant continued to work at a job 
 
         in violation of his medical restrictions even after the 
 
         settlement in 1982.  Claimant's weight has been identified as a 
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANS SALES ENTERPRISES, INC.
 
         PAGE   8
 
         
 
         source of aggravation of his back problems.  Claimant at one time 
 
         engaged in weight lifting of up to 480 pounds.  Claimant had a 
 
         prior back injury while driving a tractor in 1972.  Based on the 
 
         record, any of these events constitute as likely A source of 
 
         claimant's ongoing back pain as the June 1980 incident.  Claimant 
 
         has failed to show that his medical expenses, hospitalization and 
 
         convalescence from the May 24, 1984 incident are causally related 
 
         to the injury of June 1980.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant and defendants entered into an agreement of 
 
         settlement that was approved by this agency on August 31, 1982.
 
         
 
              2.  Said agreement of settlement provided for 15 weeks of 
 
         additional healing period benefits and 75 weeks of permanent 
 
         partial disability benefits as the result of an injury on June 
 
         17, 1980.
 
         
 
              3.  The agreement of settlement was based on a rating of 
 
         impairment of 10 percent of the body as a whole.
 
         
 
              4.  At the time of the settlement, claimant was working at a 
 
         job that required physical labor contrary to his medical 
 
         restrictions.
 
         
 
              5.  On May 24, 1984, claimant experienced additional pain in 
 
         his lower back after riding in a car.
 
         
 
              6.  Claimant was engaged in selling insurance on May 24, 
 
         1984, but later terminated his insurance business due to back 
 
         pain after driving and economic.conditions.
 
         
 
              7.  Claimant attempted two motel management jobs outside the 
 
         state of Iowa, but terminated both positions due to a desire to 
 
         return to the state of Iowa.
 
         
 
              8.  Claimant's back condition is the result of ongoing 
 
         lumbar disc disease.
 
         
 
              9.  The settlement agreement of August 31, 1982 contemplated 
 
         an impairment rating of 10 percent of the body as a whole.
 
         
 
             10.  Claimant's present rating of impairment is 10 percent of 
 
         the body as a whole.
 
         
 
             11.  Claimant is presently capable of doing light duty work.
 
         
 
             12.  At the time of the agreement of settlement, claimant was 
 
         considered capable of performing light duty work.
 
         
 
             13.  Claimant's continuing back pain was contemplated by the 
 
         agreement of settlement of August 31, 1982.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to show a change of condition since the 
 
         agreement of settlement of August 31, 1982.
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANS SALES ENTERPRISES, INC.
 
         PAGE   9
 
         
 
         
 
              Claimant is not entitled to further permanent partial 
 
         disability benefits.
 
         
 
              Claimant has failed to show a causal connection between his 
 
         medical expenses, hospitalization and convalescence following the 
 
         incident of May 24, 1984 and his injury of June 17, 1980.
 
         
 
              Claimant is not entitled to any temporary total disability 
 
         benefits as a result of this action.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from these proceedings.
 
         
 
              Claimant is to pay the costs of this action.
 
         
 
         
 
              Signed and filed this 25th day of May, 1988.
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Gary Papenheim
 
         Attorney at Law
 
         Box P
 
         234 3rd Street
 
         Parkersburg, Iowa 50665
 
         
 
         Mr. Jay P. Roberts
 
         Attorney at Law
 
         P.O. Box 1200
 
         300 WSB Building
 
         Waterloo, Iowa 50704
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                       2905; 1108.50
 
                                                       Filed May 25, 1988
 
                                                       David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEE RICHARD JOHNSON,
 
         
 
              Claimant,
 
                                                   File No. 643948
 
         vs.
 
         
 
         SCHWANS SALES ENTERPRISES,                 A P P E A L
 
         INC.,
 
                                                  D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2905
 
         
 
              Claimant failed to show a change of conditions upon 
 
         review-reopening.  The medical evidence showed the same rating of 
 
         impairment as existed at the time of the original award.  
 
         Claimant's doctor testified that at the time of the original 
 
         award, flareups of claimant's back pain in the future were to be 
 
         contemplated.
 
         
 
              In addition, claimant alleged non-physical change of 
 
         conditions.  However, the original award was based on an 
 
         agreement of settlement, which merely recited the benefits to be 
 
         paid and did not specify the contemplation of the parties as to 
 
         claimant's future earning capacity, and thus a change or 
 
         conditions contemplated by the parties could not be determined.  
 
         Finally, even if non-physical change of conditions could be 
 
         considered here, claimant only showed that his loss of earnings 
 
         was of his own making and not caused by his injury.
 
         
 
         1108.50
 
         
 
              Claimant failed to show a causal connection between his 
 
         original injury and his current disability.  Claimant's doctor 
 
         testified that he could not make a causal connection, and in 
 
         addition testified that both the original injury and the current 
 
         flareup of claimant's back condition were part of an ongoing 
 
         lifelong process.  Other equally likely possible causes for 
 
         claimantOs present back condition came out in the record, 
 
                                                
 
                                                         
 
         including the fact that claimant weighed 300 pounds and at one 
 
         time lifted weights up to 480 pounds.  Since claimant had failed 
 
         to causally connect his current medical expenses and period of 
 
         convalescence to his original injury, those expenses and further 
 
         temporary total disability benefits were denied.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEE RICHARD JOHNSON,
 
         
 
               Claimant,                                 File 643948
 
         
 
         VS.
 
                                                        R E V I E W -
 
         SCHWANOS SALES ENTERPRISES,
 
         INC.,                                       R E 0 P E N I N G
 
         
 
               Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Lee 
 
         Richard Johnson, claimant, against Schwan's Sales Enterprises, 
 
         Inc., employer, and Liberty Mutual Insurance Companies, insurance 
 
         carrier, for additional benefits as a result of an injury on June 
 
         17, 1980.  A settlement agreement was approved by the agency on 
 
         August 31, 1982 that provided for the payment of healing period 
 
         benefits and 75 weeks of permanent partial disability benefits.  
 
         A memorandum of agreement was filed in this case on December 11, 
 
         1980.  A hearing was held on claimant's review-reopening petition 
 
         on October 20, 1986 and the case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant and 
 
         Shirley Johnson; and joint exhibits 1 through 49.  Both parties 
 
         filed a brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $211.30 and that the medical bills at issue 
 
         are. reasonable in amount.
 
         
 
                                  ISSUES
 
         
 
              The contested issues are:
 
         
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANOS SALES ENTERPRISES, INC.
 
         Page   2
 
         
 
         
 
              1)   Whether claimant has established the requisite change 
 
         of condition;
 
         
 
              2)   Whether there is a causal connection between claimant's 
 
         injury of June 17, 1980 and claimant's asserted additional 
 
         disability;
 
         
 
              3)   Nature and extent of disability; specifically, claimant 
 
         asserts he is entitled to approximately 90 days of temporary 
 
         total disability benefits (this request is outlined in a letter 
 
         to the agency dated November 19, 1986) and claimant is seeking 
 
         additional permanent partial disability benefits; and
 
         
 
              4)   Whether claimant is entitled to benefits pursuant to 
 
         Iowa Code section 85.27 and, if so, the extent of those benefits; 
 
         defendants urge a causal connection argument in this regard.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is 44 years of age with a high 
 
         school education.  Claimant took a Dale Carnegie Course and also 
 
         is an emergency medical technician.  He then described the 
 
         various jobs he had held down through the years.  He was employed 
 
         by Schwan's Sales Enterprises, Inc., as a route salesperson 
 
         selling such items as Tony's Pizza and ice cream products.  He 
 
         drove a truck and would go door to door while employed at 
 
         SchwanOs.  On or about June 17, 1980, claimant hit his head on 
 
         the top of his cab while driving a company vehicle.  Subsequent 
 
         to this injury, claimant separated from Schwan's.   Claimant was 
 
         unemployed from June 1980 through April   1982.  Claimant worked 
 
         for an employer by the name of Bishop Farms from April 1982 
 
         through December 1982.  He was unemployed again from December 
 
         1982 through June 1983.  Claimant sold insurance from June 1983 
 
         until March 1986.  Claimant then moved to Laramie, Wyoming, and 
 
         managed a motel at that location for eighteen days.  In May 1986, 
 
         claimant moved to Kansas and managed a motel in that state until 
 
         October 1, 1986.
 
         
 
              Claimant testified regarding his prior medical history.  In 
 
         1972, claimant sustained a back injury at Hinson Manufacturing 
 
         while driving a tractor.  He was off work for three months.  
 
         Workers' compensation benefits were paid to claimant, but no 
 
         permanency benefits were paid because of this incident.  He 
 
         characterized this injury as "entirely different than now."  He 
 
         currently has problems when he sits.  In 1972, he was given a 
 
         muscle relaxant and traction.  The traction did not help him.
 
         
 
              Claimant testified that after his injury on June 17, 1980, 
 
         he went to a hotel in Mount Pleasant, Iowa, and used a heating 
 
         pad.  He then returned to his home in New Hartford, Iowa and saw 
 
         his family physician and ultimately Dr. Poe.  He stated that the 
 
         pain from the June 1980 injury was "higher in the back than in 
 
         1972."
 
         
 
         
 
              Claimant testified that in August 1982 he had periodic back 
 
         spasms and that his condition was not "really bad."  He thought 
 
         that he wouldn't have trouble working at the time of the 
 
         settlement.  At the time of the settlement, claimant was working 
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANOS SALES ENTERPRISES, INC.
 
         Page   3
 
         
 
         
 
         at Bishop Farms.  He planted crops and cleared the land for 
 
         Bishop Farms.  A total of 30,000 acres were farmed by the 
 
         employees of Bishop Farms.  Claimant performed manual labor for 
 
         Bishop Farms such as operating equipment.  He also did planting, 
 
         plowing, harvesting, and hauling grain to market.  He only missed 
 
         one day while working for Bishop Farms as best he can recall.  He 
 
         cannot remember the reason for missing this one day of work.  
 
         Claimant did some lifting while working for Bishop Farms.  He had 
 
         no pain while operating equipment over rough terrain.  He was 
 
         paid about $5 to $6 per hour by Bishop Farms.  He once worked 
 
         thirty-one straight hours doing cultivation work for Bishop 
 
         Farms.  After separating from Bishop Farms in December 1982, 
 
         claimant sent out 100 job applications without success.  He then 
 
         tried his own insurance business with Farmers Insurance Group.  
 
         Claimant started his own insurance business in June 1983 and and 
 
         this venture lasted about thirteen or fourteen months.  His 
 
         relationship with Farmers Insurance Group ended after several 
 
         years at the time the economy was slowing down.  He had his own 
 
         office in New Hartfort, Iowa, and paid his own expenses.  He 
 
         started his own business under a career development plan by 
 
         Farmers Insurance Group.
 
         
 
              Claimant testified that he went to a track meet in Des 
 
         Moines on May 24, 1984 and came home and his back "really 
 
         bothered me bad."  He then called Dr. Poe and went to an 
 
         emergency room for treatment.  He was treated at the emergency 
 
         room by a doctor other than Dr. Poe.  Claimant did not fall at 
 
         the track meet and concluded that the process of riding in a car 
 
         caused his symptoms.  A big lump resulted from his problem.  This 
 
         was at the same spot he was having problems in 1980 after the 
 
         June 1980 injury.  Claimant was unable to move and unable to 
 
         stand.  Muscle relaxants were injected into his back in an 
 
         attempt to treat claimant.  Claimant then compared his health 
 
         problems in 1972 with those in 1980.  He stated that the 1980 
 
         episode dealt with his right thigh and that in 1972 he had 
 
         problems with his hip.  He stated that his right leg is now numb.  
 
         In 1972, he had a tingling sensation, but no numbness.  Claimant 
 
         testified that in August 1982, he did not have a problem with 
 
         numbness.  Claimant testified that from May 1984 until the 
 
         present time, he has a problem with numbness and that he has good 
 
         days and bad days.  He stated that Oanything physical" will bring 
 
         on the numbness problem.  Riding in a car causes him 
 
         difficulties.  He first noticed the problem riding in a car after 
 
         May 1984.  After May 24, 1984, claimant was "down for three 
 
         months.O  He was hospitalized during this period.  After the 
 
         hospitalization, claimant could hardly ride or sit.  As a result 
 
         of the physical problems, claimant lost business in Waterloo, 
 
         Cedar Falls, Aplington, Grundy Center, and Dike, Iowa.  In other 
 
         words, claimant had to go back to a smaller district.
 
              
 
              Claimant testified that currently lifting 20 to 40 pounds 
 
         would cause him problems the next day.  Claimant does no 
 
         shoveling.  After riding back from Kansas to Iowa, claimant was 
 
         laid up for two days.  He estimated that he could drive 50 to 70 
 
         miles a day without experiencing major problems.  A combination 
 
         of positions is best for claimant as he cannot sit for long 
 
         periods of time.  He currently has problems with bending, 
 
         stooping, and sleeping, and did not have a problem in August 
 
         1982.  Claimant testified that while managing a motel in Kansas 
 
         he could do "most of the things down there.O  His wife would do 
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANOS SALES ENTERPRISES, INC.
 
         Page   4
 
         
 
         
 
         the "problem jobs." Claimant and his wife were paid $500 per 
 
         month plus commission.
 
         
 
               Claimant testified that starting in May 1984, he was "down 
 
         for ninety days."  Claimant also testified that in 1980, Schwan's 
 
         discharged him because of "failure to perform adequate duties."  
 
         At the time of his discharge, claimant was paid about $250 per 
 
         week after taxes.
 
         
 
               On cross-examination, claimant testified that he currently 
 
         weighs 285 pounds.  He also admitted that he has weighed as much 
 
         as 345 to 350 pounds.  Claimant testified that he quit the job in 
 
         Kansas because his wife didn't like Kansas and wanted to come 
 
         back to Iowa to be near their children.  Claimant testified that 
 
         in 1972 no specific incident resulted in his physical problem.  
 
         He stated that in 1972 he had pain in his left leg.  He further 
 
         testified that the June 1980 injury resulted in pain in both 
 
         legs.  Claimant acknowledged that Dr. Poe has told him that his 
 
         weight aggravates his back problem.  He testified that from 
 
         August 1982 through May 1984 his back problem was "minimal."  He 
 
         testified that his back problem has currently leveled off, but 
 
         that this level is worse than the "original minimal level O  He 
 
         testified that he has never been told by a physician that he 
 
         needs surgery.  Claimant further acknowledged that he left 
 
         Wyoming because his wife didn't like Wyoming.
 
         
 
              On redirect, claimant compared his situation in 1982 with 
 
         his situation today.  In 1982, claimant would take three to four 
 
         aspirins a day and use a heating pad.  He would have some days 
 
         without pain.  Currently, he has pain every day and is scared to 
 
         do anything.  Claimant currently is scared that he will hurt his 
 
         back.  He currently has numbness, but he did not have this 
 
         problem in 1982.  In sum, in August 1982, claimant expected to be 
 
         able to work and expected he would be able to find employment.  
 
         He did the job for Bishop Farms despite his back problem.  
 
         Claimant testified that he has a weight problem because his 
 
         metabolism is slow and he doesn't burn off calories.  He 
 
         testified that he has got down to 270 to 280 pound at some point, 
 
         but could not remember when.  In 1982, he had good days and bad 
 
         days.
 
         
 
              Claimant testified that his wife told him that she was going 
 
         to leave Kansas and come back to Iowa whether he came or not.
 
         
 
         
 
         Claimant then decided to quit his Kansas employment.
 
         
 
              Exhibit 8 is a September 19, 1980 report authored by Dr. Poe 
 
         and reads in part:
 
         
 
              This young man was injured in a compensation accident at 
 
              work when his head struck the roof of a vehicle.  He had 
 
              pain in his mid-thorax and was seen in the emergency room in 
 
              Mt.  Pleasant.  He had been given anti-inflammatory pills 
 
              and has been off work for the past eight weeks.  He was 
 
              hospitalized for eight days and had therapy and 
 
              anti-inflammatory medication with some relief, but presently 
 
              he is unable to stand more than a short period.  He can walk 
 
              four to five blocks and then the right leg gets sore and has 
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANOS SALES ENTERPRISES, INC.
 
         Page   5
 
         
 
         
 
              occasional cramping.  He had a similar spine injury in 1972 
 
              and was off work for six months and gradually improved on 
 
              conservative measures.
 
         
 
              On July 22, 1981, Dr. Poe estimated that claimant's 
 
         permanent partial impairment was "in the range of ten percent.O  
 
         See exhibit 9.  On August 14, 1985, Dr. Poe stated in part: O[I]t 
 
         is my opinion that Lee Richard has reached his period of maximum 
 
         healing.  I believe his permanent disability would be in the 
 
         range of ten percent (10%) permanent whole body."  See exhibit
 
         12.  Exhibit 12 also contains restrictions.
 
         
 
              Exhibit 14 is the deposition of Dr. Poe taken on January 24, 
 
         1986.  Dr. Poe first saw claimant in September 1980 for pain in 
 
         his mid-thorax.  He commented that claimant has a weight problem. 
 
          He last saw claimant in December 1985.  On page 17, he explained 
 
         the basis for his 10 percent rating.
 
         
 
              Exhibit 16, dated June 5, 1981, is a report authored by John 
 
         R. Walker, M.D., and reads in part:
 
         
 
              OPINION: This man has two lesions at the present time.  The 
 
              first one is a definite, chronic sprain of the left 
 
              sacroiliac joint.  The second one is a sprain of the 
 
              sacro-spinalOs mass as it originates from the right, 
 
              posterior wing of the ilium.  I believe this man would 
 
              benefit from therapy, consisting of traction in the hospital 
 
              for two weeks, physical therapy and particularly an 
 
              injection of the left sacroiliac joint with a combination of 
 
              Xylocaine and Cortisone preparations.  If he got complete 
 
              relief of his left sacroiliac pain with injections, one 
 
              might consider a left sacroiliac arthrodesis of the 
 
              Smith-Peterson type, however, I would plan nothing such as 
 
              this on this examination.
 
         
 
         
 
              Because of his problem in getting a job at this time because 
 
              of his background with back trouble, I feel therapy is 
 
              needed.
 
         
 
              On April 12, 1982, Dr. Walker gave claimant a 10 percent 
 
         whole body rating.  See exhibit 17.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has established that there is a causal connection 
 
         between the injury of June 17, 1980 and his asserted additional 
 
         disability.  Therefore, it is concluded that.he is entitled to 
 
         the temporary total disability benefits that he seeks (for a 
 
         period of about ninety days) and he is also entitled to payment 
 
         of the contested medical bills.
 
         
 
              It is unnecessary in this proceeding to determine whether 
 
         claimant has established the requisite change of condition as 
 
         claimant's industrial disability does not exceed the 15 percent 
 
         figure approved by the agency on August 31, 1982.  In McCarty v. 
 
         DeKalb Pfizer Genetics, Inc., filed on September 12, 1986, the 
 
         Iowa Industrial Commissioner stated at pages 4-5, "Claimant's 
 
         loss of earning capacity is largely of his own making.  The Iowa 
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANOS SALES ENTERPRISES, INC.
 
         Page   6
 
         
 
         
 
         Workers' Compensation Act compensates individuals for loss of 
 
         earning capacity because of work-related injuries, not for the 
 
         loss of earning capacity because of career choices."  Claimant 
 
         herein chose not to remain employed as a hotel manager in either 
 
         Wyoming or Kansas.  Defendants herein did not compel him to 
 
         separate from either job.  In my view, claimant's industrial 
 
         disability at time of hearing on October 20, 1986 did not exceed 
 
         15 percent.
 
         
 
         
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is forty-four (44) years old.
 
         
 
              2.  Claimant has a high school education.
 
         
 
              3.  Claimant voluntarily quit a job in Wyoming recently.
 
         
 
              4.  Claimant voluntarily quit a job in Kansas recently.
 
         
 
              5.  Claimant was temporarily disabled from May 21, 1984 
 
         through August 19, 1984 (91 days).
 
         
 
              6.  Claimant's industrial disability currently is fifteen 
 
         percent  (15%).
 
         
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANOS SALES ENTERPRISES, INC.
 
         Page   7
 
         
 
         
 
              7.  Claimant's stipulated weekly rate of compensation is two 
 
         hundred eleven and 30/100 dollars ($211.30).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  That claimant established by a preponderance of the 
 
         evidence that there is a causal connection between his injury of 
 
         June 17, 1980 and asserted disability.
 
         
 
              2.  That claimant is entitled to temporary total disability 
 
         benefits from May 21, 1984 through August 19, 1984 (91 days).
 
         
 
              3.  Defendants owe the medical bills at issue.
 
         
 
              4.  Claimant is not entitled to any additional permanent 
 
         partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That defendants pay claimant temporary total disability 
 
         benefits from May 21, 1984 through August 19, 1984 at a rate of 
 
         two hundred eleven and 30/100 dollars ($211.30).
 
         
 
              That defendants pay the medical bills at issue.
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendants pay the costs of this action, pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendants shall file claim activity reports, pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), formerly 
 
         Industrial Commissioner Rule 500-3.1(2), as requested by the 
 
         agency.
 
         
 
              Signed and filed this 29th day of December, 1986.
 
         
 
         
 
         
 
         
 
         
 
                                           T. J. McSWEENEY
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Gary Papenheim
 
         Attorney at Law
 
         Box P
 

 
         
 
         
 
         
 
         JOHNSON V. SCHWANOS SALES ENTERPRISES, INC.
 
         Page   8
 
         
 
         
 
         234 3rd Street
 
         Parkersburg, Iowa 50665
 
         
 
         Mr. Jay P. Roberts
 
         Attorney at Law
 
         P.O. Box 1200
 
         300 WSB Building
 
         Waterloo, Iowa 50704
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1402.40; 1803
 
                                                     Filed 12-29-86
 
                                                     T. J. McSweeney
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         LEE RICHARD JOHNSON,
 
         
 
              Claimant,                                File No. 643948
 
         
 
         VS.
 
                                                        R E V I E W -
 
         SCHWANOS SALES ENTERPRISES,
 
         INC.,                                       R E 0 P E N I N G
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1402.40; 1803
 
         
 
              Held in review-reopening that claimant's industrial 
 
         disability was 15% at the time of the review-reopening hearing on 
 
         October 20, 1986.  In 1982, this case was settled for 15%.  
 
         Therefore, claimant was not awarded any additional permanent 
 
         partial disability benefits.  Claimant had recently quit two 
 
         different jobs.
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         VESTER C. SHAW,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 644828
 
         ARLEDGE TRANSFER, INC.,
 
                                                        A P P E A L
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         permanent total disability benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and joint exhibits 1 through 59.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal can be stated as:  Whether claimant has 
 
         established a causal connection between his injury and his 
 
         present disability, and whether claimant is permanently and 
 
         totally disabled.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be totally 
 
         reiterated herein.
 
         
 
              Briefly stated, on June 16, 1980 claimant injured his back 
 
         attempting to stop a 2,500 pound steel beam from falling on his 
 
         foot.  The steel beam was falling from the truck claimant was 
 
         loading.
 
         
 
              After some chiropractic treatment claimant was admitted to 
 
         the hospital for surgery on August 15, 1980 to remove a herniated 
 
          disc in his lumbar spine.  Claimant underwent a second surgery 
 
         on his back in December 1981.  Claimant then returned to work in 
 
         June 1982 with a 25 pound lifting restriction.  He was laid off 
 
         later that summer for economic reasons.
 
                                                
 
                                                         
 
         
 
              Claimant was then hired by Tollie Freightways, Inc., as a 
 
         truck driver on August 27, 1982.  On his application claimant 
 
         indicated that he had no physical limitations.  See Joint Exhibit 
 
         57a, page 1.  At his company physical claimant indicated that he 
 
         had had no back injury.  See Joint exhibit 39.  Claimant was 
 
         terminated by Tollie on March 8, 1983.  The reason given for the 
 
         termination was "[d]river failed to make his points in a 6 month 
 
         period.  Points are earned by M/P/G, miles traveled & self 
 
         service, fuel.O
 
         
 
              Claimant was recalled by defendant Arledge Transfer in March 
 
         1983, and he worked for Arledge intermittently until September 
 
         1983.  At that time claimant received a lump sum payment of 
 
         compensation in the amount of $19,000 which he used to purchase a 
 
         bar.  He worked in the bar as general manager.  Claimant states 
 
         that he was never able to work full time at the bar.  Claimant 
 
         got out of the bar business in June 1984.
 
         
 
              Claimant reveals on cross-examination that he was attacked 
 
         in a bar on July 3, 1984 which caused him to seek emergency 
 
         treatment for his back.  Emergency room records for this incident 
 
         show a diagnosis of "contusions and abrasions."  X-rays taken at 
 
         that time reveal no evidence of fracture.
 
         
 
              On April 24, 1984 claimant was examined by E. Torage 
 
         Shivapour, M.D.  Dr. Shivapour states his impression and 
 
         recommendation:
 
         
 
                      Impression:
 
                     1)  Chronic low back pain, etiology to be 
 
         determined.
 
                     2)  Probable L4-Sl root lesion, left greater than
 
                         right.
 
                     3)  Status post two back surgeries, July of 1980 and
 
                         August of 1981, respectively.
 
                     4)  Rule out underlying cervical radiculopathy.
 
         
 
                 Recommendation:  I discussed with Mr. Shaw in detail 
 
              regarding his symptoms.  I advised him to avoid 
 
              predisposing factors which might aggravate [sic] his 
 
              pain and discomfort such as heavy lifting, frequent 
 
              bending and pushing.  In view of his recent abnormal 
 
              lumbar CT, I believe he should have 
 
              electrophysiological testing (EMG's-NCV's) including 
 
              evaluation of cervical and lumbosacral paraspinal 
 
              muscles.  He also may benefit from nonsteroidal 
 
              anti-inflammatory medications.  Following the 
 
              completion of his EMG's-NCV's further decision 
 
              regarding future plan for treatment, if any will be 
 
              taken.  You will receive a copy of the report for your 
 
              own review.  My follow up appointment with him will be 
 
              on prn basis.  I will be happy to see him in the future 
 
              if his pain and discomfort worsen or if he develops new 
 
              neurological symptoms or signs.
 
                                                
 
                                                         
 
         
 
         (Joint Exhibit 15b)
 
         
 
              On May 3, 1984 claimant was examined by John C. VanGilder, 
 
         M.D., at the University of Iowa Hospitals.  Dr. VanGilder opines 
 
         in a letter to Dr. Shivapour:
 
         
 
                 Review of his studies which are of excellent quality 
 
              demonstrates on his initial myelogram in 1980 an Sl 
 
              root cut off at L5-Sl on the right presumably from 
 
              herniated disc.  Subsequent myelogram in 1981 again 
 
              shows a partial deformation of the Sl root on the left 
 
              which is either secondary to scar tissue or recurrent 
 
              herniated disc.  It is noted on subsequent x-rays after 
 
              this surgery, he has had laminectomy of the L5 
 
              vertebra.  Current x-rays of the low back show 
 
              degenerative narrowing of the L5-Sl interspace.  Recent 
 
              CT scan from April again confirms the absence of the 
 
              lamina over the L5 vertebra.  There is some soft tissue 
 
              ventral to the thecal sac at L5-Sl, but I see no 
 
              evidence of root impingement or asymmetry.  I would 
 
              interpret this most likely as postoperative change 
 
              rather than recurrent disc.
 
         
 
                 Based on his neurological assessment, I do not think 
 
              a myelogram is indicated.  I think he should be 
 
              conservatively managed and have prescribed Motrin, 400 
 
              mg. t.i.d. as an anti-inflammatory agent to determine 
 
              if this would be helpful.
 
         
 
         (Joint Ex. 19b)
 
         
 
              On July 30, 1984 claimant saw Dr. Wilson for a referral to 
 
         Dr. Shivapour.  Dr. Wilson states in his notes for that visit:
 
         
 
                 The question which is likely to come up is the one 
 
              which was posed earlier by the patient's insurance 
 
              company and that is "did I refer him to Dr. Shivapour 
 
              in January, 1983, or anytime previously to this?" 
 
              Unfortunately, I did not.  Had the patient asked me for 
 
              such a referral, I probably would have done so.  I 
 
              might have referred him either to Dr. Lehmann or Dr. 
 
              Jim Weinstein at the University of Iowa, the back 
 
              surgeons.  I have worked with Dr. VanGilder and 
 
              cooperated with other patients and would agree with a 
 
              referral there also.  Thus, if the insurance company 
 
              poses the question to me "would I have referred him?", 
 
              I would have at the patient's request.  I am sure there 
 
              will be some hassle as regards to the compensation for 
 
              the care rendered to Mr. Shaw by Dr. Shivapour insofar 
 
              as it was apparently unbeknownst to the insurance 
 
              carrier.  In any event, I am happy at this stage to try 
 
              and help the patient in whatever way I can and at this 
 
              stage, I've written a formal letter of referral to Dr. 
 
              Shivapour.  Hopefully, this will help him cover any 
 
                                                
 
                                                         
 
                   future financial commitments.
 
         
 
         (Joint Ex. lh)
 
         
 
              Claimant was experiencing severe back pain by November 1984 
 
         which required that he be hospitalized on November 30, 1984.  The 
 
         course of treatment for that hospitalization is discussed in 
 
         joint exhibit 14f:
 
         
 
              DIAGNOSIS:  Recurrent sciatica left L-5.
 
         
 
                 This pt. was admitted with severe back pain and lt. 
 
              leg pain, status post-back surgery. on this admission, 
 
              he had a positive straight leg raise [sic] on the lt. 
 
              at 301, negative on the rt.  No change in motor 
 
              weakness.  It was planned that he be admitted for 
 
              bedrest, epidural steroid injection.
 
         
 
                 The pt. received Ascriptin with meals, Valium 2 mgs. 
 
              t.i.d., Amitriptyline 100 mgs. at h.s., Morphine 
 
              Sulfate 5-10 mgs. severe pain and Talwin 50 mgs. p.r.n. 
 
              pain.
 
         
 
                 His lab work was performed and found to be 
 
              relatively wnl.  X-ray of the L-S spine showed slight 
 
                                    
 
                                                
 
                                                         
 
              degenerative narrowing of L-3, 4 disc, otherwise bones 
 
              and spaces between them had a normal appearance.  He 
 
              underwent a repeat epidural on 11/30/84 which provided 
 
              him with about 30% relief.  He was continued at bedrest 
 
              and allowed to be up slowly and ambulate.  Dr. Michael 
 
              Wilson's plans were to make arrangements with Dr. Jim 
 
              Weinstein in Iowa City for consultation about the pt's. 
 
              scheduled treatment.  Appointment will be made for him 
 
              and he will pick up his records.  He was discharged in 
 
              improved condition on 12/4/84.
 
         
 
              Claimant was next examined by James Weinstein, D.O., on 
 
         December 27, 1984.  Dr. Weinstein admitted claimant to the 
 
         hospital for a myelogram on January 9, 1985.  Dr. Weinstein 
 
         testified in his deposition about the results of that myelogram:
 
         
 
              Q.  Doctor, what were the results of the myogram [sic] 
 
              on Vester Shaw on January 9, 1985?
 
         
 
              A.  According to the radiologist, their impression was 
 
              Vester had a ventral left lateral postoperative changes 
 
              versus herniated nucleus pulposis with some superior 
 
              extrusion.
 
              Q.  Can you tell us what that means in lay people's 
 
              terms?
 
         
 
              A.  I think that's what we suspected and defined in our 
 
              initial impression that this either represented a 
 
              recurrence of a herniation and extruded sequestered 
 
              fragments outside the disk or postoperative scar 
 
              changes, and that's taken from pretty much what we 
 
              thought.
 
         
 
         (Weinstein Deposition, page 16)
 
         
 
              Dr. Weinstein then admitted claimant to the hospital in 
 
         February 1985 for diskectomy exploration, possible foraminotomy, 
 
         neurolysis, and whatever was necessary to make sure his Sl nerve 
 
         root was free.O (Weinstein Dep., p. 17)  This surgery was 
 
         performed on February 11, 1985.  Dr. Weinstein states that the 
 
         main problem for claimant was scarring and bony encroachment.  As 
 
         to the cause of these problems Dr. Weinstein opines:
 
         
 
              Q.  We've already discussed scarring.  Can you describe 
 
              for us this bony encroachment?  Was it the result of 
 
              calcium deposit?  Did the bone grow this way or did it 
 
              just shift with normal motions?
 
         
 
              A.  I think a number of factors may be hypothesized.  
 
              No one could tell you exactly, but I would hypothesize 
 
              that as a result of the previous surgery of like 
 
              arthritis, new bones forming, and was possibly a 
 
              secondary -- as a secondary phenomenon causing some 
 
              compression of the nerve root.
 
         
 
                                                
 
                                                         
 
              Q. All right.  When you opened up the area near the Sl 
 
              nerve root in February 1985, did you find any evidence 
 
              of traumatic damage that was causing the Sl 
 
              radiculopathy?
 
         
 
              A.  Could you describe trauma.
 
         
 
              Q.  With symptom like a fracture or something that was 
 
              -- would evidence a damage from a fall or car accident 
 
              or something like that.
 
         
 
              A.  Well, scar tissue, I suppose, the healing process 
 
              can occur from anything when you cut your finger or you 
 
              fall and hurt your back.  But I would probably 
 
              hypothesize that the scar was from his previous 
 
              surgeries, and I saw no signs of a fracture, but 
 
              certainly scar tissue can be stimulated by almost 
 
              anything.
 
         
 
         (Weinstein Dep., pp. 19-20)
 
         
 
              Dr. Weinstein states that he has no opinion whether the bar 
 
         fight caused or aggravated any of the problems found in the 1985 
 
         surgery.  Dr. Weinstein opines that claimant does suffer some 
 
         permanent impairment of the low back and opines that claimant's 
 
         healing period had ended at the time of the deposition - August 
 
         14, 1985.  Dr. Weinstein declined to assign a rating to 
 
         claimant's impairment until he could examine claimant again for 
 
         the purpose of determining a rating.  Dr. Weinstein opines that 
 
         claimant should "avoid heavy lifting, twisting, repetitive 
 
         bending and twisting, vibration" and that claimant should not 
 
         return to truck driving.  See Weinstein Deposition, page 26.
 
         
 
              Joint exhibit 21b contains clinical notes by Dr. Weinstein 
 
         concerning claimant.  In an entry dated August 14, 1985 Dr. 
 
         Weinstein states:  "Vester had his deposition today with his 
 
         attorneys for his disability hearing.  It is my interpretation 
 
         that Mr. Shaw's degree of impairment is in the 25-30 percent 
 
         range.  This is based on his physical findings that are well 
 
         documented in the chart and have remained unchanged." (Joint Ex. 
 
         21b)
 
         
 
              Duane A. Willander, M.D., examined claimant on June 27, 
 
         1983, and he opines in a July 7, 1983 letter:
 
         
 
                 The above-named patient has a disability equivalent 
 
              to thirty percent loss.of use of the lower extremity.  
 
              This percentage is predicated on his muscle spasm, 
 
              atrophy of the left calf, diminished to absent left 
 
              achilles reflex, and limitation of back motion.  It is 
 
              felt that this patient would be benefited, however, by 
 
              a lift of three-eighths inch to be worn on the right 
 
              shoe at all times to compensate him for his leg length 
 
              inequality and his pelvic obliquity.  He should then be 
 
              on back exercises to rehabilitate the individual.
 
                                                
 
                                                         
 
         
 
         (Joint Ex. 29)
 
         
 
              Since the 1985 surgery claimant states that he has been 
 
         helping Judy Marcoux, his girlfriend, at her gift and craft shop. 
 
          He testifies that he is not paid a salary for this work.  
 
         Claimant relates that he is not able to work in Judy's shop more 
 
         than four hours per day due to extreme pain in his lower 
 
         extremities if he stands or sits too long.  Claimant testified 
 
         that he has not looked for work in the last 12 months because he 
 
         feels he is not able to work.
 
         
 
              Claimant testifies that he is 48 years old and has a GED.  
 
         He states that he served four years in the air force and received 
 
         training in aerography and fire fighting.  Claimant indicates 
 
         that he has been employed as a construction worker, meat packer, 
 
         truck driver and janitor.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              Contrary to defendants' arguments, the greater weight of 
 
         evidence supports causal connection.  Dr. Weinstein testifies 
 
         that the scar tissue was probably from claimant's two previous 
 
         surgeries.  He also opines that the bony encroachment was 
 
         possibly caused by the previous surgeries.  Dr. Weinstein's 
 
         testimony together with that of claimant, Judy Marcoux, and Dr. 
 
         Wilson supports a finding of causal connection.
 
         
 
              The greater weight of evidence also supports the deputy's 
 
         finding that claimant is permanently and totally disabled.  
 
         Claimant's work restrictions preclude him from truck driving.  
 
         Claimant is 48 years old and his education is limited.  His 
 
         attempts at light work managing a bar and working in the gift and 
 
         craft shop have been hampered due to severe back and leg pain.  
 
         It is determined that claimant is unemployable.
 
         
 
              The deputy's findings of fact, conclusions of law and order 
 
         are adopted herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.   On June 16, 1980 claimant received an injury arising 
 
         out of and in the course of his employment.
 
         
 
              2.   As a result of his injury, claimant herniated the 
 
         nucleous pulpi of the disc at L4/L5 and L5/Sl.
 
         
 
              3. In August 1980 claimant received surgical treatment on 
 
         the disc at L5/S1.
 
         
 
                                                
 
                                                         
 
              4. In December 1981 claimant received surgical treatment on 
 
         the disc at L4/L5.
 
         
 
              5. As a result of the two surgeries, claimant developed 
 
         arachnoiditis and possibly a bony growth at the disc levels of 
 
         L4/L5 and L5/Sl.
 
         
 
              6.  In February 1985 claimant received surgical treatment 
 
         for removal of scar tissue and the bony encroachment.
 
         
 
              7.  Claimant continues to suffer severe pain and discomfort 
 
         in his back and legs.
 
         
 
              8.  Claimant has a GED, but did not complete high school.
 
         
 
              9.  Claimant is well motivated and credible.
 
         
 
              10.  Claimant has a significant functional impairment and 
 
         severe physical limitations.
 
         
 
              11.  Claimant is not now employable and this will continue 
 
         indefinitely into the future.
 
         
 
              12.  Claimant's medical expenses were authorized.
 
         
 
              13.  Claimant cannot return to any of his former employment 
 
         positions.
 
         
 
              14.  Claimant became permanently and totally disabled on 
 
         July 1, 1984 as a result of his injury.
 
         
 
              15.  Claimant's rate of compensation is $306.20.
 
         
 
                                    
 
                                                         
 
              16.  Claimant's injury in a bar fight did not materially
 
         aggravate his work injury.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         there is a causal relationship between his work injury and his 
 
         disability.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         he is permanently and totally disabled as a result of his 
 
         injury.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         there is a causal connection between his injury and the medical 
 
         expenses he incurred and that the medical expenses were 
 
         authorized by defendants.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay unto claimant weekly compensation at his 
 
         rate of three hundred six and 20/100 dollars ($306.20) commencing 
 
         July 1, 1984 and continuing thereafter during the period of his 
 
         disability pursuant to section 85.34(3), Code of Iowa.  All 
 
         accrued payments shall be made in a lump sum together with 
 
         statutory interest.  Defendants may take credit for any prior, 
 
         unaccrued payments due claimant.
 
         
 
              That defendants pay the following medical expenses of 
 
         claimant:
 
         
 
              a. University of Iowa
 
                 Hospitals & Clinics              $10,225.10
 
              b. Burlington Medical Center          1,694.70
 
              c. Radiologists Services                184.00
 
              d. E. Torage Shivapour, M.D.            695.50
 
              e. Anesthesiology, Inc.                 116.00
 
              f. Apothecory 24                         60.11
 
              g. Nelson's Sunnyside Drug              467.23
 
              h. Vester Shaw - mileage                243.00
 
         
 
              That the costs of the review-reopening proceeding and the 
 
         appeal including the transcription of the hearing proceeding are 
 
         taxed to defendants.
 
         
 
              That defendants shall file claim activity reports pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), as requested 
 
         by the agency.
 
         
 
                                                
 
                                                         
 
         
 
              Signed and filed this 20th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                              DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Steven J. Crowley
 
         Attorney at Law
 
         Sixth Floor Burlington Bldg.
 
         P.O. Box 517
 
         Burlington, Iowa 52601
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                                  1108.5-1402.40-1804
 
                                                  Filed January 20, 1988
 
                                                  DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         VESTER C. SHAW,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 644828
 
         ARLEDGE TRANSFER, INC.,
 
                                                      A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108.5
 
         
 
              Claimant's testimony coupled with the testimony of his 
 
         doctors and girlfriend sustained claimant's burden of proving a 
 
         causal connection between his injury and his present disability.
 
         
 
         1402.40 - 1804
 
         
 
              Greater weight of evidence supported finding of permanent 
 
         and total disability.  Claimant was 48 years old with limited 
 
         education and with work restrictions which precluded him from his 
 
         former occupation, truck driving.  His attempts at light work 
 
         failed due to severe back and leg pain.
 
         
 
         
 
 
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VESTER C. SHAW,               :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 644828
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            ARLEDGE TRANSFER, INC.,       :
 
                                          :               O N
 
                 Employer,                :
 
                                          :             F U L L
 
            and                           :
 
                                          :      C O M M U T A T I O N
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding filed by Vester C. Shaw against 
 
            defendant employer Arledge Transfer, Inc., and defendant 
 
            insurance carrier Liberty Mutual Insurance Company for full 
 
            commutation of benefits under the Iowa Workers' Compensation 
 
            Act based upon claimant's work injury of June 16, 1980.
 
            
 
                 A deputy industrial commissioner filed a 
 
            review-reopening decision on March 14, 1986, finding 
 
            claimant to be permanently and totally disabled.  That 
 
            determination was affirmed by the industrial commissioner in 
 
            an appeal decision filed January 20, 1988.  Claimant filed a 
 
            petition for full commutation on March 11, 1988.
 
            
 
                 This matter came on for hearing before the undersigned 
 
            deputy industrial commissioner in Burlington, Iowa, on April 
 
            25, 1989, and was considered fully submitted on that date.
 
            
 
                 The evidence in this case consists of claimant's 
 
            testimony.
 
            
 
                 The parties stipulated that as of the date of the 
 
            commutation hearing, claimant would be entitled to an 
 
            additional 1,274 weeks of benefits under the appropriate 
 
            life expectancy table.  The parties further stipulated that 
 
            claimant's rate of compensation is $306.20 per week.  The 
 
            parties further stipulated that the commuted value of 1,274 
 
            weeks would equal $145,451.  The parties further agreed that 
 
            all medical and weekly benefits have been paid to date and 
 
            the insurance carrier is current on payment of all weekly 
 
            benefits.
 
            
 
                 The only issue presented by the parties is whether a 
 
            partial or full commutation would be in claimant's best 
 
            interest.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                              review of the evidence
 
            
 
                 Claimant, who now resides in Medina, Ohio, testified 
 
            that he was 52 years of age, having been born on April 4, 
 
            1937.  He is single (divorced) and has no dependents.  
 
            Claimant resides with his older brother and has no current 
 
            plans to remarry.
 
            
 
                 Claimant testified that his disability arises from an 
 
            injury to his lower back which has required three surgical 
 
            procedures, most recently in 1985.  When claimant last saw 
 
            his physician, he was advised that further surgery appeared 
 
            unwarranted and that he must simply adjust to his disabled 
 
            state.  Further medical treatment is not anticipated and no 
 
            physician has advised claimant that further medical 
 
            treatment is required.  Claimant does not expect to need 
 
            further medical treatment.  He testified that he is aware 
 
            that a full commutation would extinguish his right to 
 
            lifetime medical care related to the work injury, but noted 
 
            that due to his status as a veteran, he is qualified for 
 
            medical treatment at Veterans Administration hospitals 
 
            should the need arise.
 
            
 
                 Claimant owns a car on which he owes $4,500.  The 
 
            monthly payment is $201.05.  This is his only major debt and 
 
            claimant has no credit cards.  On the other hand, he has no 
 
            assets appreciating in value.
 
            
 
                 Claimant is now paying $375 per month in rent, but 
 
            desires owning his own home.  Although unable to work on a 
 
            full-time basis, claimant believes that he is competent to 
 
            manage a rental property and proposes purchasing a duplex or 
 
            triplex.  Claimant testified that he is handy at carpentry, 
 
            plumbing and other crafts.  Although unable to utilize these 
 
            skills in a full-time position, he is able to work at his 
 
            own pace, as he would be able to do working on his own 
 
            property.  He wishes to buy a building with brick facing and 
 
            a well-maintained interior.  Claimant indicated that he is 
 
            self-sufficient around the house.  Claimant has lived in 
 
            Medina since November, 1988 and plans to live there 
 
            permanently.
 
            
 
                 Claimant complains that he is unable to save money on 
 
            his workers' compensation benefits, all of which are 
 
            necessary to meet the basic costs of living.  Although 
 
            claimant's attorney is entitled to a one-third contingency 
 
            fee as to those benefits, the attorney is currently on a 
 
            voluntary basis taking only one-fourth (every fourth check).  
 
            If a full commutation is granted, claimant's attorney has 
 
            agreed to a lump sum payment of $30,000 in full satisfaction 
 
            of his fee.  Mr. Crowley's contract with claimant actually 
 
            called for a 40 percent contingency fee in the event of an 
 
            appeal to the industrial commissioner, as has already 
 
            transpired.
 
            
 
                 If the full commutation is granted, claimant would 
 
            realize approximately $145,000.  After a payment of $30,000 
 
            to Mr. Crowley, claimant proposes investing $25,000 as a 
 
            down payment on a duplex or triplex.  He also plans to pay 
 
            off the balance of his motor vehicle debt, which would leave 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            him approximately $85,500.  In the statement of awareness 
 
            and best interest filed March 11, 1988, claimant indicated 
 
            that he has approximately $14,000 invested in a savings 
 
            certificate at a bank located in West Burlington, Iowa.
 
            
 
                 Claimant intends to invest his remaining funds in 
 
            interest bearing certificates at the First National Bank of 
 
            Medina, Ohio, anticipating a rate of return of at least 8 
 
            percent.  Based on $85,000 invested, an 8 percent return 
 
            would net $6,800 annually, or $566 per month.
 
            
 
                 Claimant testified that the economic climate in Medina 
 
            is more favorable than is the case in Iowa.  Although he has 
 
            not specifically discussed mortgage financing, he has 
 
            discussed local rental property opportunities with realtors 
 
            in Medina.  He believes there is a good demand for rental 
 
            property units.  Claimant believes he can purchase a 
 
            suitable duplex or triplex for approximately $65,000, which 
 
            would leave him a mortgage of $40,000 and a monthly 
 
            mortgage, insurance and tax payment of approximately $500.  
 
            If a duplex were purchased, claimant anticipates renting out 
 
            the other side for approximately $350 per month.  Claimant 
 
            might also qualify for a low interest housing loan by reason 
 
            of his status as a veteran.
 
            
 
                 Claimant indicated that his monthly expenses without 
 
            commutation include $440 for legal fees, $375 rent, $201 per 
 
            month car payment and approximately $275 for food, fuel, 
 
            automobile insurance and incidental expenses, leaving 
 
            claimant less than $80 per month disposable income.  
 
            Claimant points out that if the commutation is granted, he 
 
            anticipates income of approximately $925 per month based on 
 
            interest and rental income.  His expenses would be reduced 
 
            because his car loan and attorney fee obligations would be 
 
            satisfied from the lump sum.  Claimant pointed out that he 
 
            thus anticipates having more disposable income than is 
 
            presently the case and would be building equity in his real 
 
            property.
 
            
 
                 Claimant is aware that he would pay income taxes on his 
 
            rental income and interest income, whereas his workers' 
 
            compensation benefits are exempt from tax.
 
            
 
                           applicable law and analysis
 
            
 
                 Section 85.45, Code of Iowa, provides in relevant part:
 
            
 
                 Future payments of compensation may be commuted to 
 
                 a present worth lump sum payment on the following 
 
                 conditions:
 
            
 
                 1.  When the period during which compensation is 
 
                 payable can be definitely determined.
 
            
 
                 2.  When it shall be shown to the satisfaction of 
 
                 the industrial commissioner that such commutation 
 
                 will be for the best interest of the person or 
 
                 persons entitled to the compensation, or that 
 
                 periodical payments as compared with a lump sum 
 
                 payment will entail undue expense, hardship, or 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 inconvenience upon the employer liable therefor.
 
            
 
                 . . .
 
            
 
                 4.  When a person seeking a commutation is a 
 
                 surviving spouse, a permanently and totally 
 
                 disabled employee, or a dependent who is entitled 
 
                 to benefits as provided in section 85.31, 
 
                 subsection 1, paragraphs "c" and "d", the future 
 
                 payments which may be commuted shall not exceed 
 
                 the number of weeks which shall be indicated by 
 
                 probability tables designated by the industrial 
 
                 commissioner for death and remarriage, subject to 
 
                 the provisions of chapter 17A.
 
            
 
                 . . .
 
            
 
                 The Iowa Supreme Court set forth bases for granting 
 
            commutations in Diamond v. Parsons Co., 256 Iowa 915, 129 
 
            N.W.2d 608 (1964).  The Court noted that the adjudicator 
 
            should not act as an "unyielding conservator" of claimant's 
 
            property and disregard claimant's desires or reasonable 
 
            plans merely because future success is not assured.
 
            
 
                 The principles set forth in Diamond v. Parsons Co., 
 
            were reconsidered by the Iowa Court in Dameron v. Neumann 
 
            Brothers, Inc., 339 N.W.2d 160 (Iowa 1983).  After reviewing 
 
            the Diamond decision, the Court readopted its principles and 
 
            commented:
 
            
 
                 In summary, Diamond held that the decision whether 
 
                 to allow commutation must turn on the statutory 
 
                 guideline, best interest of the claimant, and the 
 
                 focus should be on the worker's personal, family, 
 
                 and financial circumstances, and the 
 
                 reasonableness of the worker's plans for using the 
 
                 lump sum proceeds.  Consequently, factors which 
 
                 can be distilled from the Diamond analysis include 
 
                 the following:
 
            
 
                       1.  The worker's age, education, mental 
 
                    and physical condition, and actual life 
 
                    expectancy (as contrasted with information 
 
                    provided by actuarial tables).
 
            
 
                       2.  The worker's family circumstances, 
 
                    living arrangements, and responsibilities to 
 
                    dependents.
 
            
 
                       3.  The worker's financial condition, 
 
                    including all sources of income, debts and 
 
                    living expenses.
 
            
 
                       4.  The reasonableness of the worker's 
 
                    plan for investing the lump sum proceeds and 
 
                    the worker's ability to manage invested 
 
                    funds or arrange for management by others 
 
                    (for example, by a trustee or conservator).
 
            
 
                 Ultimately, the Diamond analysis involves a 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 benefit-detriment balancing of factors, with the 
 
                 worker's preference and the benefits to the worker 
 
                 of receiving a lump sum payment weighed against 
 
                 the potential detriments that would result if the 
 
                 worker invested unwisely, spent foolishly, or 
 
                 otherwise wasted the fund so it no longer provided 
 
                 the wage-substitute intended by our worker's [sic] 
 
                 compensation law.  Under the last two paragraphs 
 
                 quoted above from the Diamond opinion, however, a 
 
                 request for commutation is approved on the 
 
                 best-interest balancing test unless the potential 
 
                 detriments to the worker outweigh the worker's 
 
                 expressed preference and the demonstrated benefits 
 
                 of commutation.
 
            
 
                 The Court noted that Professor Larson advocated on 
 
            policy grounds a much more stringent test, 3A Larson's 
 
            Workmen's Compensation Law, section 82.71, but noted that 
 
            the General Assembly has retained "best interest of the 
 
            claimant" as the fundamental touchstone for deciding 
 
            commutation cases, despite a change in the section 
 
            subsequent to the Diamond decision.  The Dameron Court 
 
            stated its belief that, had the legislature intended a more 
 
            restrictive approach, tougher requirements would have been 
 
            enacted when section 85.45 was amended to shift from the 
 
            courts to the industrial commissioner the responsibility to 
 
            make the initial "best interest" determination in contested 
 
            cases.  This deputy notes in passing that the Dameron 
 
            decision was handed down on October 19, 1983, and that the 
 
            legislature has still not changed that "fundamental 
 
            touchstone."
 
            
 
                 Therefore, it is the responsibility of the deputy to 
 
            consider the factors distilled from the Diamond analysis and 
 
            apply the best-interest balancing test set forth in the 
 
            above quotation.
 
            
 
                 Claimant is 52 years of age and single.  He has no 
 
            responsibilities to dependents.  The evidence as to his 
 
            physical condition is that he is now totally and permanently 
 
            disabled, but not in need of anticipated further medical 
 
            treatment.  Claimant gave every indication during his 
 
            testimony of being a rational and intelligent person.
 
            
 
                 Claimant's current financial condition is 
 
            unsatisfactory to him in that he has only approximately $80 
 
            per month in disposable income after necessary expenses.  He 
 
            is unable to make investments to increase his net worth 
 
            based on current income and expenses.  It might be noted 
 
            that if inflation continues to be a fact of life, claimant's 
 
            expenses may be expected to increase while his income is 
 
            permanently limited to the weekly benefit amount previously 
 
            awarded.
 
            
 
                 Claimant's plan appears to this writer to be reasonable 
 
            and rational.  If it works out as claimant anticipates, he 
 
            will have more disposable income than is presently the case 
 
            and will be building equity in real property.  In addition, 
 
            future inflation may be anticipated to be less damaging 
 
            because his mortgage expense will not increase (except, if 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            applicable, to the extent permitted by a variable rate 
 
            mortgage), but his rental income would presumably increase 
 
            in response to inflationary pressures.
 
            
 
                 There are doubtless expenses associated with the upkeep 
 
            of rental property.  However, claimant has the ability to 
 
            perform various plumbing or carpentry tasks himself, even if 
 
            his physical condition prevents him from utilizing those 
 
            skills in a full-time job, since he would be able to work at 
 
            his own pace with respect to his own property.
 
            
 
                 Claimant would give up the right to continued medical 
 
            treatment causally related to his work injury if the 
 
            commutation be granted.  However, he currently anticipates 
 
            no further major medical expenses, and in any event has an 
 
            alternative source of free medical care through the Veterans 
 
            Administration.
 
            
 
                 One important consideration in the Dameron case is no 
 
            longer valid.  When Dameron was handed down, the statutory 
 
            discount rate applicable to commutations was 5 percent and 
 
            the record there showed that 12-14 percent investments were 
 
            both prudent and available.  Now, the discount rate is 10 
 
            percent and the record reflects that claimant's intended 
 
            investments are of a lesser return.  The early 1980's were a 
 
            time of high interest rates, much more so than is today the 
 
            case.  It can scarcely be argued that prudent 12-14 percent 
 
            returns on investment are much less commonly available than 
 
            was the case when Dameron was decided.
 
            
 
                 Nevertheless, this writer does not feel it appropriate 
 
            to deny a commutation simply on the basis that the current 
 
            statutory discount rate may exceed the return on commonly 
 
            available prudent investments.  Under the Dameron test, it 
 
            does not appear that "best interest" necessarily means the 
 
            "best" or most remunerative investment vehicle possibly 
 
            available anywhere.  Rather, the test is whether the 
 
            potential detriments to the worker outweigh the worker's 
 
            expressed preference and the demonstrated benefits of 
 
            commutation.
 
            
 
                 Because claimant has an alternative source of free 
 
            medical care, the major detriment in this case is that his 
 
            planned investment in real estate and certificates of 
 
            deposit may be less secure than his life-time entitlement to 
 
            benefits (although, that entitlement is subject to review 
 
            should claimant experience a favorable change in his 
 
            condition to the extent that he is no longer totally 
 
            disabled).  The benefits of the proposed commutation include 
 
            an anticipated increase in disposable income, the 
 
            psychological benefits that accrue from home and rental 
 
            property ownership along with the pride associated with 
 
            keeping a building in repair, dramatic reduction in 
 
            claimant's attorney fee obligation, the cushion of an 
 
            $85,000 investment in certificates of deposit and some 
 
            protection from inflationary pressures.
 
            
 
                 While the detriments are serious, this deputy does not 
 
            feel that they outweigh claimant's expressed preference and 
 
            the demonstrated benefits of commutation, at least from the 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            perspective of one who has been instructed by the Iowa Court 
 
            not to "act as an unyielding conservator of claimant's 
 
            property."  Therefore, full commutation of claimant's 
 
            remaining benefits shall be granted.
 
            
 
                 Due to the lapse in time between hearing and this 
 
            decision, the fairest result is to calculate the full 
 
            commutation from the filing date of this decision.  Claimant 
 
            is now 53 years of age and his life expectancy is 1,232 
 
            weeks pursuant to the life expectancy table set forth in 
 
            Division of Industrial Services Rule 343-6.3(1).  The 10 
 
            percent discount table set forth in Division of Industrial 
 
            Services Rule 343-6.3(2) reflects a commutation factor of 
 
            471.2418.  Multiplied by claimant's stipulated weekly rate, 
 
            this yields a product of $144,294.24.  The commutation shall 
 
            be awarded on that basis.
 
            
 
                                 findings of fact
 
            
 
                 THEREFORE, based on the evidence presented, the 
 
            following ultimate facts are found:
 
            
 
                 1.  Claimant is single and 53 years of age as of the 
 
            date of this decision.
 
            
 
                 2.  As stipulated and as previously awarded, claimant's 
 
            weekly rate is $306.20.
 
            
 
                 3.  Claimant has been found by this agency to be 
 
            permanently and totally disabled.
 
            
 
                 4.  Although claimant's attorney is entitled to a 40 
 
            percent contingency fee on all benefits due and owning, he 
 
            is currently on a voluntary basis charging only a 25 percent 
 
            contingency fee.
 
            
 
                 5.  Claimant's monthly expenses include rent of $375, 
 
            car payment of $201, and approximately $275 for food, fuel, 
 
            automobile insurance and other incidental expenses.  
 
            Claimant currently has less than $80 per month of disposable 
 
            income.
 
            
 
                 6.  Claimant desires a full commutation of his 
 
            remaining benefits.
 
            
 
                 7.  Claimant's attorney has agreed to accept the sum of 
 
            $30,000 in full satisfaction of his attorney fees if this 
 
            commutation is granted.
 
            
 
                 8.  Claimant intends to use the proceeds of his full 
 
            commutation to pay his attorney fee, pay the balance of his 
 
            car loan ($4,500), pay a $25,000 down payment on a duplex or 
 
            triplex with an anticipated purchase price of $65,000, and 
 
            invest the balance in certificates of deposit at the First 
 
            National Bank of Medina, Ohio.
 
            
 
                 9.  Although disabled from work, claimant is capable of 
 
            carpentry, plumbing and other crafts while working at his 
 
            own pace and is competent to manage rental property.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                10.  Upon granting of this commutation, claimant 
 
            anticipates mortgage, insurance and tax expense of $500 per 
 
            month, but also anticipates rental income of approximately 
 
            $350 per month.
 
            
 
                11.  Upon granting of this commutation, claimant 
 
            anticipates having nearly twice the disposable income per 
 
            month than is now the case and increasing equity in the 
 
            proposed home/rental property.
 
            
 
                12.  Claimant is a rational and intelligent person.
 
            
 
                13.  Claimant does not anticipate further medical 
 
            expenses related to his work injury; in any event, he is 
 
            entitled to free medical care from the Veterans 
 
            Administration.
 
            
 
                14.  The proposed commutation will reduce claimant's 
 
            vulnerability to inflationary pressures.
 
            
 
                15.  Claimant's plans for the use of the funds from the 
 
            proposed commutation are reasonable.
 
            
 
                                conclusions of law
 
            
 
                 WHEREFORE, based on the principles of law previously 
 
            cited, the following conclusions of law are made:
 
            
 
                 1.  The potential detriments of the proposed 
 
            commutation do not outweigh claimant's expressed preference 
 
            and the demonstrated benefits of commutation.
 
            
 
                 2.  Claimant has established that the proposed 
 
            commutation will be in his best interest.
 
            
 
                           
 
            
 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants shall pay unto claimant the sum of one 
 
            hundred forty-four thousand two hundred ninety-four and 
 
            24/100 dollars ($144,294.24) in full commutation of one 
 
            thousand two hundred thirty-two (1,232) weeks based on 
 
            claimant's life expectancy, using a commuted value of four 
 
            seven one point two four one eight (471.2418) times the 
 
            weekly benefit rate of three hundred six and 20/100 dollars 
 
            ($306.20).
 
            
 
                 That the costs of this action are taxed to defendants 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants shall file a final payment report upon 
 
            completion of this award.
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven J. Crowley
 
            Mr. William Bauer
 
            100 Valley Street
 
            P.O. Box 517
 
            Burlington, Iowa  52601
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Building
 
            111 East Third Street
 
            Davenport, Iowa  52801
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-3303.10
 
                                               Filed April 23, 1990
 
                                               DAVID RASEY
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            VESTER C. SHAW,               :
 
                                          :
 
                 Claimant,                :
 
                                          :         File No. 644828
 
            vs.                           :
 
                                          :         D E C I S I O N
 
            ARLEDGE TRANSFER, INC.,       :
 
                                          :               O N
 
                 Employer,                :
 
                                          :             F U L L
 
            and                           :
 
                                          :      C O M M U T A T I O N
 
            LIBERTY MUTUAL INSURANCE      :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
            5-3303.10
 
            Full commutation was found to be in claimant's best 
 
            interest.
 
            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                  5-2701
 
                                  Filed December 9, 1994
 
                                  Patricia J. Lantz
 
 
 
            BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
THERESA M. WALKER, 
 
          
 
     Claimant,                      File No. 644915
 
          
 
vs.       
 
                                    D E C I S I O N
 
SISTERS OF MERCY/MERCY  
 
HOSPITAL,                               O N
 
          
 
     Employer,                     A L T E R N A T E
 
          
 
and                                  M E D I C A L
 
          
 
AETNA CASUALTY,                        C A R E
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
5-2701
 
Claimant awarded alternate medical care.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
________________________________________________________________
 
          
 
THERESA M. WALKER, 
 
          
 
     Claimant,                         File No. 644915
 
          
 
vs.       
 
                                       D E C I S I O N
 
SISTERS OF MERCY/MERCY  
 
HOSPITAL,                                    O N
 
          
 
     Employer,                        A L T E R N A T E
 
          
 
and                                     M E D I C A L
 
          
 
AETNA CASUALTY,                           C A R E
 
          
 
     Insurance Carrier,  
 
     Defendants.    
 
________________________________________________________________
 
                    STATEMENT OF THE CASE
 
 
 
This is a proceeding filed under Iowa Code section 85.27 and 343 IAC 
 
4.48.  Claimant requests alternate medical treatment. 
 
 
 
Claimant, Theresa Walker, filed her petition for alternate care on 
 
November 28, 1994.  Defendants answered on December 5, 1994.
 
A telephonic hearing was held on December 8, 1994.  Claimant, C. 
 
Roland, M.D., J. Weston Mosby, and Joanne Bell provided testimony.  The 
 
record also includes claimant's exhibits 1 and 2, and defendants' 
 
exhibit A.  
 
 
 
On November 29, 1994, the undersigned was delegated the authority to 
 
issue a final agency action in this matter.  Appeal of this decision, 
 
if any, shall be by judicial review, as governed by the Iowa Code 
 
section 17A.19.
 
 
 
                         FINDINGS OF FACT
 
 
 
The undersigned deputy, having heard the testimony and having reviewed 
 
the evidence received, finds the following facts:
 
 
 
Claimant, Theresa Walker, sustained a work-related injury in April of 
 
1980.  To render appropriate medical treatment, defendants designated 
 
C. Roland, M.D., an orthopaedic specialist in Des Moines, Iowa as the 
 
authorized treating physician.  In 1980 or 1981, Dr. Roland moved to 
 
San Diego, California.  Subsequently, claimant moved to San Diego, as 
 
well.  
 
 
 
Claimant has had continuing problems with her right knee since the 
 
initial work accident.  During the past 14 years, she has undergone the 
 
following surgeries:
 
 
 
1.  Right knee arthroscopy with lateral release in May 1981. 
 
 
 
2.  Right knee patellar realignment in September 1981.
 
 
 
3.  Right knee arthroscopy with debridement in July 1984. 
 
 
 
4.  Right knee arthroscopy with debridement and popliteal 
 
cyst removal in December 1985. 
 
 
 
5.  Right knee arthroscopy with debridement and hardware removal 
 
in April 1986. 
 
 
 
6.  Right knee arthroscopy with debridement and removal of plica 
 
in March 1987. 
 
 
 
7.  Right knee arthroscopy revision with patellar realignment 
 
procedure in May 1988. 
 

 
 
 
 
 
 
 
 
 
8.  Right knee hardware removal in January 1989. 
 
 
 
9.  MRI of the right knee, November 1989. 
 
 
 
Apparently, all of the procedures have been performed by Dr. Roland.  
 
The report also states that claimant "may require further treatment at 
 
the right knee including surgery and physical therapy."  (Defendants' 
 
Ex. A, p. 3)  The report, which is dated September 11, 1989, is not 
 
signed, so the undersigned is unsure as to the author of the same. 
 
Claimant experienced another episode with her knee in April of 1994.  
 
After several examinations and a bone scan, Dr. Roland has determined 
 
that claimant is temporarily, totally disabled, and requires another 
 
arthroscopy.  (Claimant's Exhibit 1)
 
 
 
Due to this evaluation, defendants wanted to get a second opinion 
 
regarding claimant's need for additional surgery.  Employing the help 
 
of a local medical case manager (Wes Mosby), the insurance company 
 
contacted Stephen Shoemaker, M.D., to provide the second opinion.  His 
 
examination revealed tenderness over the knee area, and loss of range 
 
of motion during the examination.  Dr. Shoemaker noted subjective 
 
complaints of pain and locking of the knee.  He believed claimant 
 
exhibited amplification of pain, and suspected an "underlying 
 
functional problem."  (Def. Rx. A, p. 5)  He recommended against 
 
surgery, because the results of the physical exam were not consistent 
 
with a diagnosis of "loose body" in the knee.  Apparently, claimant was 
 
disappointed with Dr. Shoemaker's findings and conclusions.  Id.    
 
 
 
In light of this opinion, defendants designated another physician as 
 
the authorized physician in the case, Dr. Rodi.   Claimant failed to 
 
attend the appointment with Dr. Rodi.  
 
 
 
Sidney Levine, M.D., also provided an opinion regarding the need for 
 
additional surgery.  His report, dated July 29, 1994, indicates that 
 
based on his examination, claimant's condition warranted arthroscopic 
 
surgery.  (Cl. Ex. 2)
 
 
 
                 ANALYSIS AND CONCLUSIONS OF LAW
 
 
 
The sole issue to address is whether claimant is entitled to alternate 
 
medical care.
 
 
 
The party who would suffer loss if an issue were not established has 
 
the burden of proving that issue by a preponderance of the evidence.  
 
Iowa R. App. P. 14(f).
 
 
 
In pertinent part, Iowa Code section 85.27 provides:
 
   
 
   For purposes of this section, the employer is obliged to furnish 
 
reasonable services and supplies to treat an injured employee, and has 
 
the right to choose the care.  The treatment must be offered promptly 
 
and be reasonably suited to treat the injury without undue 
 
inconvenience to the employee.  If the employee has reason to be 
 
dissatisfied with the care offered, the employee should communicate the 
 
basis of such dissatisfaction to the employer, in writing if requested, 
 
following which the employer and the employee may agree to alternate 
 
care reasonably suited to treat the injury.  If the employer and 
 
employee cannot agree on such alternate care, the commissioner may, 
 
upon application and reasonable proofs of the necessity therefor, allow 
 
and order other care.
 
 
 
This statute was amended as House File 2250 by the 74th General 
 
Assembly, effective July 1, 1992.  The amendment required the 
 
Industrial Commissioner to provide a method to expeditiously resolve 
 
disputes under this section.
 
   
 
   An employer's right to select the provider of medical treatment to 
 
an injured worker does not include the right to determine how an 
 
injured worker should be diagnosed, evaluated, treated or other matters 
 
of professional medical judgment.  Assmann v. Blue Star Foods, Inc., 
 
File No. 866389 Declaratory Ruling, May 18, 1988.
 
Claimant has received extensive care and treatment from Dr. Roland.  
 
Defendants pointed out that the longest claimant had ever gone without 
 
seeing Dr. Roland was three or four months.  
 
 
 
Claimant points out that the defendant insurance company has never 
 
questioned Dr. Roland's rates or course of treatment, and have failed 
 
to really even speak directly to Dr. Roland regarding claimant's need 
 
for care or numerous surgeries.  
 
 
 
There is no evidence which indicates Dr. Rodi is superior to Dr. 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
Roland, and, no one has suggested that Dr. Roland's course of treatment 
 
over the years has been subpar.
 
 
 
From the record, it appears that the only reason the defendant 
 
insurance company changed the authorized treating physician is due to 
 
Dr. Roland's recommendation for additional surgery.  The undersigned 
 
finds that this action is an attempt to interfere with the professional 
 
advice of the authorized treating physician.  
 
 
 
As a result, it is determined that claimant's petition for alternate 
 
care is granted.  
 
 
 
                            ORDER
 
 
 
THEREFORE, it is ordered:
 
 
 
That claimant's petition for alternate care is granted.  
 
 
 
Signed and filed this ____ day of December, 1994.      
 
 
 
________________________________        
 
PATRICIA J. LANTZ        
 
DEPUTY INDUSTRIAL COMMISSIONER
 
 
 
Copies To:
 
 
 
Mr David D Drake
 
Attorney at Law
 
1200 35th St  Ste 500
 
West Des Moines IA 50266
 
 
 
Ms Lorraine R May
 
Attorney at Law
 
4th Floor Equitable Bldg
 
Des Moines IA 50309