BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
          
 
          RAYMOND L. WALTERS,
 
          
 
              Claimant,
 
                                                      File No.664813
 
          VS.
 
                                                      R E V I E W  -
 
          HENKEL CONSTRUCTION CO.,
 
         
 
                                                      R E 0 P E N I N G
 
              Employer,
 
         
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
                                        
 
              This is a proceeding in review-reopening from a memorandum 
 
         of agreement which has been brought by Raymond L. Walters against 
 
         Henkel Construction, his former employer, and the Iowa 
 
         Contractors Workers' Compensation Group.  The case was heard and 
 
         fully submitted at Des Moines, Iowa on January 13, 1989.  The 
 
         record in the proceeding consists of testimony from the claimant 
 
         and joint exhibits 1 through 7.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties for determination are: 
 
         Determination of claimant's entitlement to compensation for 
 
         healing period, permanent partial disability, mileage under Code 
 
         section 85.27 and also a determination with regard to whether or 
 
         not claimant is entitled to additional medical treatment in the 
 
         nature of psychotherapy and pain management.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed.  
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 
              Raymond L. Walters is a 58-year-old, married man who dropped 
 
         out of high school during his sophomore year and thereafter 
 
         entered the iron work trade.  Walters has been an ironworker 
 
         throughout what is essentially all of his adult life.  During the 
 
         last 15 years of his employment prior to the accident,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WALTERS V. HENKEL CONSTRUCTION CO.
 
         Page 2
 
         
 
         
 
         he had worked primarily as a foreman.  Claimant explained that 
 
         the normal work of an ironworker involves rigging, hoisting, 
 
         placing and installing structural iron, steel and precast 
 
         concrete in the process of building construction.  It also 
 
         includes other lighter activities.  Much of the work is performed 
 
         above ground level.  A portion of the work which is commonly 
 
         referred to as "detail work" is performed after the main building 
 
         has been erected.  Walters stated that detail work is lighter and 
 
         safer than normal work, although it is also less readily 
 
         available.  Walters stated that work as a foreman is normally 
 
         less strenuous and involves less work at heights than normal iron 
 
         work, but at times a foreman is required to perform some portions 
 
         of the heaviest work and also to work at heights.
 
         
 
              Raymond Walters was injured on March 6, 1981 while employed 
 
         by Henkel Construction in Mason City, Iowa.  A metal pipe fell 
 
         approximately two stories, was deflected by a stair riser and hit 
 
         his forehead above the left eye, just below the hard hat.  He was 
 
         immediately taken to the local hospital and then transferred to 
 
         the Mayo Clinic where open reduction and internal fixation 
 
         surgery of the left supraorbital fracture was performed.  
 
         Claimant's treating physicians felt that the fracture and wounds 
 
         healed nicely.  Claimant was released to return to work on April 
 
         3, 1981 (exhibit 1, page 32).
 
         
 
              Claimant returned to work in September, 1981, several months 
 
         after he was released at the Mayo Clinic.  Claimant explained 
 
         that his physical problems continued, that he did not feel well 
 
         and that he did not feel like resuming work.  He complained that 
 
         he experienced headaches, dizziness, and a pulling sensation and 
 
         numbness in the left side of his face.  Claimant stated that 
 
         wearing a hard hat contributed to the problem due to the 
 
         tightness of the headband.
 
         
 
              When Walters did resume employment, he took a light job 
 
         which was mostly detail work.  He stated that he continued to 
 
         have the same physical problems as had existed and that they did 
 
         not go away with the passage of time as the doctors had informed 
 
         him would occur.  Walters stated that he worked with his problems 
 
         and got along the best he could.  Over the following three years, 
 
         claimant took a number of light detail work type of jobs until 
 
         December of 1984.  Shortly thereafter, claimant applied for and 
 
         received his pension.
 
         
 
              Walters testified that his same medical problems have 
 
         continued to the present time.  He complains of numbness 
 
         affecting four teeth on the left side of his face, numbness on 
 
         the left side of his face, headaches and dizziness.  He also has 
 
         complaints regarding his arms and described a sensation which 
 
         felt like bugs crawling on the side of his body.  Claimant 
 
         attributes all his complaints to the March 6, 1981 injury.  
 
         Claimant stated that he felt he would be unable to perform any of 
 
         the work that an ironworker would normally perform at heights.  
 
         He felt that his mental sharpness had been reduced to where he 
 
         would not be an effective foreman.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WALTERS V. HENKEL CONSTRUCTION CO.
 
         Page 3
 
         
 
         
 
              The physicians who have examined claimant have not found any 
 
         physiological abnormality which would explain his complaints 
 
         regarding his teeth, his upper extremities or the sensation of 
 
         insects crawling on his body.  Claimant's subjective area of lack 
 
         of sensation on his face is not totally consistent with the 
 
         anatomic nerve distribution.  Claimant's teeth have been examined 
 
         with no identified damage.  Claimant's eyes have been examined 
 
         with no identified abnormality due to trauma.  The only 
 
         recommended physical restriction which appears in the record is 
 
         that issued by David J. Boarini, M.D., a neurosurgeon who 
 
         recommended that, in view of claimant's complaints of dizziness, 
 
         he should not work at heights (exhibit 1, page 3).
 
         
 
              Claimant was evaluated by Robert C. Jones, M.D., who felt 
 
         that claimant had post-traumatic depression which was casually 
 
         connected with the March 6, 1981 injury.  He recommended that 
 
         claimant see a psychiatrist or receive pain clinic treatment 
 
         (exhibit 2, page 19; exhibit 5, pages 6-8).  Dr. Jones felt that 
 
         when an individual develops complaints such as ongoing pain and 
 
         headaches, the likelihood of recovery from those complaints is 
 
         reduced, the longer the complaints are allowed to remain 
 
         untreated (exhibit 5, pages 10 and 11).  Dr. Jones felt that the 
 
         best chance for claimant to recover was to receive treatment 
 
         through a psychiatrist, psychologist or a pain center (exhibit 5, 
 
         pages 11 and 12).
 
         
 
              Claimant was evaluated by Steven C. Dawdy, Ph.D. Dr. Dawdy 
 
         administered a Minnesota Multiphasic Personality Inventory on two 
 
         occasions with similar results each time.  The results were 
 
         interpreted as showing psychological factors affecting claimant's 
 
         physical condition.  The history and presentation were deemed 
 
         consistent with organically based pain.  There was evidence of a 
 
         mild depressive mood, ongoing anxiety and somatic overconcern 
 
         which likely resulted from living with discomfort, but also 
 
         probably contributed to an exacerbation and/or overfocusing on 
 
         the physical pain.  Dr. Dawdy recommended treatment in the nature 
 
         of pain and stress management techniques.  He also recommended 
 
         individual psychotherapy.  Dr. Dawdy stated that males with 
 
         claimant's particular personality makeup tend to be less 
 
         successful than many others in pain management programs (exhibit 
 
         1, pages 14-16).
 
         
 
              A review of claimant's answers to interrogatories as 
 
         contained in exhibit 2 shows that during the last five years 
 
         prior to his injury, he earned an average of $21,947.37 annually.  
 
         In 1981, the year of the injury, his earnings were  $16,033.00. 
 
         In 1982, claimant's earnings from employment were  $12,525.00. In 
 
         1983 and 1984, the earnings were slightly less than  $7,000.00 
 
         per year.  Claimant's post-injury annual earnings for 1981 
 
         through 1984 are approximately 40 percent of his average annual 
 
         earnings during 1976 through 1980.  Claimant explained that, if 
 
         he had chosen to travel, he could have worked and earned more, 
 
         but that he has chosen to refrain from any away from home work 
 
         because of his problems and the fact that he does not feel
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WALTERS V. HENKEL CONSTRUCTION CO.
 
         Page 4
 
         
 
         
 
         well.  During 1982 through 1984, claimant also received 
 
         $12,322.00 in unemployment compensation benefits.  Prior to the 
 
         time of injury, claimant had traveled regularly in order to 
 
         remain fully employed.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Healing period compensation terminates when the injured 
 
         employee resumes employment, becomes medically capable of 
 
         performing employment substantially similar to that in which he 
 
         was engaged at the time of injury, or makes sufficient recovery 
 
         that further significant improvement from the injury is not 
 
         anticipated.  From the record made in this case, claimant was 
 
         released to return to work on April. 3, 1981 without restriction.  
 
         According to claimant's own testimony, there has been little 
 
         recovery or change in his position since that date.  If anything, 
 
         he feels it has worsened.  Claimant's healing period is therefore 
 
         determined to have ended on April 3, 1981.
 
         
 
              Code section 85.27 gives the employer the right to select 
 
         the medical treatment that an injured employee will receive.  
 
         This includes an affirmative duty to actively and effectively 
 
         monitor the treatment that is being provided.  Zimmerman v. L. L. 
 
         Pelling Co., II Iowa Industrial Commissioner Report, 462 (App. 
 
         Decn. 1982).  Claimant voiced his continuing complaints to the 
 
         Mayo Clinic and other medical providers.  They offered no 
 
         treatment and simply recommended that he resume his normal 
 
         activities.  They had initially indicated to him that his 
 
         complaints would resolve with the passage of time.  Claimant 
 
         resumed working for approximately three years, albeit at a 
 
         reduced level.  There are several factors in the record which 
 
         could explain why he would chose to be less active in his 
 
         employment than he had previously been.  It is important to note, 
 
         however, that the change occurred following the injury.
 
         
 
              Claimant sustained a serious injury.  He has clearly 
 
         experienced a loss of sensation on part of his face, although not 
 
         all of the loss of sensation is corroborated by the medical 
 
         findings.  He is affected with depression.  Claimant expressed a 
 
         lack of confidence in his abilities to work at heights and 
 
         perform many of the functions normally performed by ironworkers.  
 
         The real issue in this case is whether claimant's statements 
 
         regarding his problems, and lack of confidence in his ability to 
 
         perform what had been his lifelong work is a compensable 
 
         psychological injury which resulted from the physical trauma or 
 
         whether his complaints are malingering or intentional 
 
         exaggeration designed to increase what he might recover in this 
 
         case.  Having considered the evidence from all the medical 
 
         practitioners and also having observed the claimant's appearance 
 
         and demeanor as he testified, it is determined that claimant's 
 
         statements are sincere and honest.  The work of an ironworker is 
 
         one which requires a great deal of confidence in one's physical 
 
         ability to perform a very physically demanding job.  It requires 
 
         a state of mind which permits the individual to perform work 
 
         which provides substantial risk of severe physical injury or 
 
         death.  It is
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WALTERS V. HENKEL CONSTRUCTION CO.
 
         Page 5
 
         
 
         
 
         certainly understandable that after suffering a serious injury 
 
         such as the one claimant sustained in this case, an individual 
 
         might decline to return to that type of work.  It is difficult to 
 
         criticize a person who would decline to return to iron work after 
 
         an injury since there are many individuals in society who do not 
 
         have the attributes necessary to undertake that type of work 
 
         under any conditions.
 
         
 
              Regardless of whether it is termed depression, anxiety, 
 
         functional overtones or loss of nerve, the fact remains that the 
 
         injury made Raymond Walters unwilling, and probably unable, to 
 
         work at heights.
 
         
 
              There is probably a complex psychological explanation for 
 
         what has transpired in this case.  Claimant, with his tenth grade 
 
         education, certainly cannot be expected to understand it. The net 
 
         result is that it has gone untreated for what is now over eight 
 
         years.  Drs. Jones and Dawdy are not optimistic about the success 
 
         of any treatment which could be employed at this time.  Claimant 
 
         has requested authorization for psychotherapy and pain 
 
         management.  The requests were made long before the date that 
 
         this case was heard, but they were denied by the employer.  In 
 
         view of the pessimistic outlook expressed by Drs. Jones and 
 
         Dawdy, the undersigned is not inclined to compel the defendants 
 
         to provide that type of treatment.  Accordingly, claimant's 
 
         disability will be evaluated as it currently exists, rather than 
 
         as it might be following some type of pain management or 
 
         psychological. treatment.
 
         
 
              Physical trauma causing emotional disability is sometimes 
 
         referred to as the "impact rule."  Its compensability is solidly 
 
         established.  Deaver v. Armstrong Tire & Rubber Co., 170 N.W.2d 
 
         455 (Iowa 1969).  Psychological injury is not a scheduled member 
 
         disability and the disability should therefore be evaluated and 
 
         compensated industrially.
 
         
 
              Industrial disability was defined in Diederich v. Tri-City 
 
         Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as 
 
         follows: "It is therefore plain that the legislature intended the 
 
         term 'disability' to mean 'industrial disability' or loss of 
 
         earning capacity and not a mere 'functional disability' to be 
 
         computed in the terms of percentages of the total physical and 
 
         mental. ability of a normal man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical
 
         
 
         
 
         
 
         WALTERS V. HENKEL CONSTRUCTION CO.
 
         Page 6
 
         
 
         
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Claimant's reluctance to work at heights is confirmed by Dr. 
 
         Boarini.  A dizzy ironworker on a girder is an unreasonable risk, 
 
         both to himself and to his coworkers.  It is a major factor of 
 
         his disability.
 
         
 
              Claimant's work as a foreman shows that he has some 
 
         supervisory skills, although his psychological condition may have 
 
         impaired those skills.  Claimant's work as an ironworker involved 
 
         welding.  It would be assumed that claimant could obtain 
 
         employment as a welder if he were to seek that type of work.  It 
 
         would likely be the type of work which he could perform at ground 
 
         level.  Claimant's own earnings record since the injury has 
 
         showed that he could probably earn approximately 50 percent of 
 
         what he had earned prior to the injury if he restricted himself 
 
         to detail type of work or other light work as it became 
 
         available.  It might require some limited travel, although it 
 
         would not be expected that extensive travel would be required.  
 
         While the record does not contain any evidence regarding welding 
 
         position availability in the Mason City, Iowa area where claimant 
 
         resides, it would be assumed that most available positions would 
 
         probably not pay any more than what claimant could earn 
 
         performing detail work as an ironworker.  When the actual impact 
 
         upon claimant's earnings is considered together with all the 
 
         other factors of industrial disability, it is determined that 
 
         Raymond Walters sustained a 50 percent permanent partial 
 
         disability in industrial terms as a result of the injury he 
 
         sustained on March 6, 1981.
 
         
 
              The record in this case does not show that the claimant was 
 
         ever advised as to which physicians were or were not authorized 
 
         to provide treatment of his injuries.  It appears that claimant 
 
         was sent to Dr. Boarini by the defendants.  Claimant is therefore 
 
         entitled to recover all of the mileage expenses which are 
 
         itemized in exhibit 7, namely the total amount of  $215.25. 
 
         Defendants cannot claim that the treatment and travel was 
 
         unauthorized or unnecessary where they have failed to demonstrate 
 
         that claimant should have known in advance that the treatment was 
 
         unauthorized.  The travel. to Dr. Boarini is recoverable by 
 
         claimant under any set of the circumstances.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         WALTERS V. HENKEL CONSTRUCTION CO.
 
         Page 7
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Raymond Walters developed a psychological condition which 
 
         has not been well defined as a result of the injuries he 
 
         sustained on March 6, 1981.  He also experiences dizziness, 
 
         headaches and other symptoms.
 
         
 
              2. The psychological condition and dizziness have rendered 
 
         Walters reluctant to work at heights, an activity which is a 
 
         major part of the work of an ironworker.
 
         
 
              3. The psychological condition has existed for over eight 
 
         years and it is not probable that treatment at this time would be 
 
         successful.
 
         
 
              4. Dr. Boarini's restriction that claimant not work at 
 
         heights is accepted as being correct regardless of whether the 
 
         dizziness complaints are psychologically or physiologically 
 
         based.
 
         
 
              5. Claimant's best opportunity for maintaining as close to 
 
         the preinjury level of earnings as possible was for him to 
 
         perform detail and other light work as an ironworker.
 
         
 
              6. Since claimant's inability to work at heights restricts 
 
         him from a major portion of the work normally performed by 
 
         ironworkers, that restriction reduces his earning capacity by 
 
         approximately 50 percent.
 
         
 
              7. Following the injury on March 6, 1981, claimant was 
 
         medically incapable of performing work in employment 
 
         substantially similar to that he performed at the time of injury 
 
         until April 3, 1981 when he was released to return to work.
 
         
 
              8. Claimant's description of his symptoms and complaints is 
 
         accurate.  Claimant is not a malingerer.
 
         
 
              9. It would not be reasonable for claimant to work at 
 
         heights in view of his complaints of dizziness since such would 
 
         expose both himself and others to an unreasonable risk of serious 
 
         injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Claimant is entitled to recover 4 1/7 weeks of 
 
         compensation for healing period at the stipulated rate of $233.47 
 
         per week payable commencing March 6, 1981.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              3. Claimant is entitled to recover 250 weeks of compensation 
 
         for permanent partial disability representing a 50 percent
 
         
 
         
 
         
 
         WALTERS V. HENKEL CONSTRUCTION CO.
 
         Page 8
 
         
 
         
 
         industrial disability under the provisions of Code section 
 
         85.34(2)(u).
 
         
 
              4. Defendants are responsible for payment of claimant's 
 
         transportation expenses in the amount of $215.25 under the 
 
         provisions of Code section 85.27.
 
         
 
              5. Defendants are not to be compelled to provide pain 
 
         center, psychological or psychiatric treatment for claimant where 
 
         the probability of success is low.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant four 
 
         and one-seventh (4 1/7) weeks of compensation for healing period 
 
         at the stipulated rate of two hundred thirty-three and 47/100 
 
         dollars ($233.47) per week payable commencing March 6, 1981.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant two 
 
         hundred fifty (250) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of two hundred thirty-three and 
 
         47/100 dollars ($233.47) per week payable commencing April 4, 
 
         1981.
 
         
 
              IT IS FURTHER ORDERED that all amounts of weekly 
 
         compensation are past due and shall be paid to claimant in a lump 
 
         sum together with interest at the rate of ten percent (10%) per 
 
         annum computed from the date each weekly payment came due until. 
 
         the date of actual payment pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants are not required to 
 
         provide claimant with psychological care, psychiatric care or 
 
         pain center treatment.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant two 
 
         hundred fifteen and 25/100 dollars ($215.25) for transportation 
 
         expenses.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Signed and filed this 21st day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         WALTERS V. HENKEL CONSTRUCTION CO.
 
         Page 9
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Denis Reed
 
         Attorney at Law
 
         1906 Ingersoll Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         Mr. John A. Templer, Jr.
 
         Ms. Ann M. Ver Heul
 
         Attorneys at Law
 
         3737 Woodland, Suite 437
 
         West Des Moines, Iowa 50265
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108.20, 1402.40, 1803
 
                                         2204, 2501
 
                                         Filed August 21, 1989
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RAYMOND L. WALTERS,
 
         
 
              Claimant,
 
         
 
                                         File No. 664813 
 
         VS.
 
         
 
                                         R E V I E W 
 
         HENKEL CONSTRUCTION CO.,
 
         
 
                                         R E 0 P E N I N G 
 
              Employer,
 
         
 
                                         D E C I S I 0 N 
 
         and
 
         
 
         IOWA CONTRACTORS WORKERS'
 
         COMPENSATION GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.20, 1402.40, 1402.40, 1803, 2204, 2501
 
         
 
              Claimant was a 55-year-old ironworker when he was struck in 
 
         the head by a piece of pipe and suffered a fracture of his skull.  
 
         Approximately four weeks later, after surgical reduction and 
 
         fixation, he was released from medical treatment to return to 
 
         work.  Since that time, claimant has declined to work at heights 
 
         and accepted only light work.  The result was approximately a 50 
 
         percent reduction in his annual earnings.  Claimant had 
 
         continuing complaints of loss of sensation and numbness.  The 
 
         physicians who have evaluated him indicated that there was some 
 
         psychological component to claimant's symptoms, but psychological 
 
         treatment was not offered.  The evidence indicated that since the 
 
         psychological condition was long-standing, the chance of 
 
         successful treatment was slim.
 
         
 
              Claimant's request for psychotherapy or pain center 
 
         treatment was denied since the chance of success was not good.  
 
         Claimant awarded 50 percent permanent partial disability based 
 
         upon the psychological condition and its impact upon his actual 
 
         earnings, despite the fact that there was no actual physical 
 
         impairment rating in the case.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        R. V. SMITH,
 
        
 
            Claimant,
 
        
 
        vs.                              File No. 665212
 
        
 
        GRALNEK & DUNITZ,                   A P P E A L
 
        
 
            Employer,                    D E C I S I O N
 
        
 
        and
 
        
 
        CNA INSURANCE COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from a review-reopening decision denying 
 
        benefits.
 
        
 
        The record on appeal consists of the transcript of the 
 
        review-reopening proceeding: claimant's exhibits 1 through 6; 
 
        and, defendants' exhibit A. Furthermore, at the requests of both 
 
        parties at the review-reopening hearing, official notice was 
 
        taken of the file. Both parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
        The deputy stated in his decision that the issues were:
 
        
 
        A. Whether there was a causal relationship between the alleged 
 
        injury and the disability on which claimant is basing his claim; 
 
        and,
 
        
 
        B. The extent of permanent partial or permanent total disability 
 
        to which claimant is entitled.
 
        
 
        In his appeal, filed October 21, 1986, claimant further argued 
 
        that Guyton v. Irving Jensen, Co., is applicable to the 
 
        review-reopening proceeding of February 28, 1986.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The review-reopening decision adequately and accurately reflects 
 
        the pertinent evidence and generally will not be set forth 
 
        herein. We take note of the following additional evidence 
 
        presented, however. In the March 2, 1985 report, Dr. Evans 
 
        assigned claimant a permanent partial impairment rating of
 
        
 
        SMITH V. GRALNEK & DUNITZ
 
        Page 2
 
        
 
        
 
        20% of the body as a whole using the following formula:
 
        
 
        Range of Motion (ROM)
 
            (discounted due to muscle weakness) . . . . . 15.5% spine
 

 
        
 
 
 
 
 
        X-ray findings of : L4-L5 IVD . . . . . . . . . . 5.0% spine
 
        Motor Impairment Rating (MIR) Quadriceps (bilat)  37.0% LE
 
        Sensory Impairment Rating (SIR) (L5-S1 bilat.) . . 5.0% LE
 
        Summary . . . . . . . . . . . . . . . . . . . . . 20.0% wp
 
        
 
        Dr. Evans reported that he arrived at the impairment rating 
 
        through use of the Guides to the Evaluation of Permanent 
 
        Impairment, AMA, 1984. He stated that, after review of his 
 
        clinical findings, reports, radiographs and other supportive data 
 
        relative to claimant, he believed that no alternate form of 
 
        therapy was indicated. He further stated that the recorded facts 
 
        reflected claimant's complaints as did his own examination 
 
        findings.
 
        
 
                                 APPLICABLE LAW
 
        
 
        Citations of law in the review-reopening decision are appropriate 
 
        to the issues and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of evidence in conjunction with the law in the 
 
        review-reopening decision is adopted. The greater weight of 
 
        evidence demonstrates that claimant has not had any significant 
 
        change in his physical condition since the prior hearing. As the 
 
        deputy noted, the report of Dr. Evans does not show a change in 
 
        claimant's physical condition as Dr. Evans first saw claimant on 
 
        March 2, 1985. Dr. Evans, therefore, did not know claimant's 
 
        condition at any time earlier than Dr. Evans' examination. 
 
        Further, Dr. Evans stated that his findings at time of 
 
        examination were consistent with prior findings as reflected on 
 
        health care records and radiographs he reviewed regarding 
 
        claimant. Again, as the deputy noted, the fact that Dr. Evans 
 
        might rate claimant differently than did some other physician, 
 
        namely, Dr. Bunten, does not mean that Dr. Evans would not have 
 
        come to the same conclusions at the time of the earlier hearing. 
 
        In his appeal brief, claimant places great emphasis on the fact 
 
        that Dr. Bunten reviewed the report of Dr. Evans on or about July 
 
        3, 1985 and subsequently issued his own report of July 3, 1985. 
 
        Claimant notes that, in that report, Dr. Bunten stated that he 
 
        found Dr. Evans' report consistent with [Dr. Bunten's] 
 
        impression. Claimant argues that, since Dr. Bunten did not 
 
        question Dr. Evans' 20% whole person impairment rating but found 
 
        Dr. Evan's' opinions consistent with Dr. Bunten's, one can 
 
        reasonably infer that Dr. Bunten agreed that claimant now has a 
 
        20% permanent physical impairment rating as compared to the 10% 
 
        rating Dr. Bunten found at the time of the 1983 review-reopening 
 
        proceeding. We find that claimant asks us to make too great a 
 
        leap into the sea of potential inferences when he asks us to make 
 
        the leap proposed by his argument. We believe that, had Dr. 
 
        Bunten wished to indicate his agreement
 
        
 
        SMITH V. GRALNEK & DUNITZ
 
        Page 3
 
        
 
        with Dr. Evans' subsequent impairment rating for claimant, Dr. 
 
        Bunten could have expressly so stated. In the absence of such a 
 
        statement, the statement as to consistent impressions must be and 
 
        should properly be limited to a statement concerning claimant's 
 
        physical findings and diagnosed condition and not a statement 
 
        concerning his impairment rating. [We note that claimant's 
 
        argument lends itself readily to its converse. Dr. Evans also 
 
        reported that his review of claimant's previous radiographs and 
 
        health records was consistent with Dr. Evans' own findings and 
 
        claimant's complaints. One could equally as well argue from that 
 
        that Dr. Evans had accepted Dr. Bunten's earlier 10% whole person 
 

 
        
 
 
 
 
 
        permanent partial impairment rating.]
 
        
 
        Likewise, the greater weight of evidence, as the deputy noted, 
 
        fails to show a change in the other factors of industrial 
 
        disability contemplated in the prior review-reopening decision. 
 
        As the deputy stated in the review-reopening decision of August 
 
        14, 1986:
 
        
 
        It is not the undersigned's duty to second guess the deputy who 
 
        wrote the first decision. If claimant had disagreed with the 
 
        prior decision, an appeal from that decision should have been 
 
        taken. The undersigned can only make a determination as to 
 
        permanent impairment if a change of condition is shown and 
 
        claimant has failed to show any change in condition.
 
        
 
        The deputy's analysis of the question of whether claimant's claim 
 
        should have been considered under the odd-lot analysis of the 
 
        Guyton decision is a correct statement of the law as pronounced 
 
        in Armstrong v. State of Iowa Bldgs., 382 N.W.2d 161 (Iowa 1986) 
 
        and Klein v. Furnas Elec. Co., 384 N.W.2d 370 (Iowa 1986).
 
        
 
                                 FINDINGS OF FACT
 
        
 
        WHEREFORE, IT IS FOUND:
 
        
 
        Dr. Bunten examined claimant prior to his July, 1983 
 
        review-reopening hearing.
 
        
 
        Dr. Evans did not examine claimant until January 30, 1985.
 
        
 
        Dr. Bunten again examined claimant on or about July 3, 1985.
 
        
 
        On March 2, 1985, Dr. Evans found that prior health care records 
 
        and radiographs reflected claimant's complaints as reflected by 
 
        claimant's statements and as supported by Dr. Evans' examination 
 
        findings.
 
        
 
        On July 3, 1985, Dr. Bunten found Dr. Evans' report consistent 
 
        with his impression.
 
        
 
        Dr. Evans assigned claimant a 20% permanent partial impairment
 
        
 
        SMITH V. GRALNEK & DUNITZ
 
        Page 4
 
        
 
        
 
        to the body as a whole on March 2, 1985.
 
        
 
        Dr. Bunten assigned claimant a 10% impairment of the body as a 
 
        whole prior to the 1983 decision.
 
        
 
        Dr. Bunten did not change his permanent partial impairment rating 
 
        for claimant in a July 3, 1985 report.
 
        
 
        Claimant's physical condition has not changed since his prior 
 
        hearing in July, 1983 .
 
        
 
        Claimant was not working at the time of the prior hearing in 
 
        July, 1983 and was not working at the time of the 
 
        review-reopening now under appeal.
 
        
 
        Claimant had not sought other employment nor accepted employment 
 
        offered him by defendants at the time of the prior hearing in 
 
        July, 1983 and had not done so at the time of the 
 
        review-reopening proceeding now under appeal.
 
        
 

 
        
 
 
 
 
 
        Claimant's motivation was questionable at the time of the prior 
 
        hearing in July, 1983 and remained questionable at the time of 
 
        the review-reopening proceeding now under appeal.
 
        
 
        There has not been a change in the factors which the deputy 
 
        issuing the decision in the hearing in July, 1983 used in 
 
        determining claimant's industrial disability.
 
        
 
        As claimant has had no change in his condition since the prior 
 
        hearing, claimant cannot now appropriately argue that he is an 
 
        odd-lot employee.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        THEREFORE, IT IS CONCLUDED:
 
        
 
        Claimant has not established a causal relationship between his 
 
        injury and the disability upon which his claim is based.
 
        
 
        Claimant is not entitled to any further permanent partial 
 
        disability benefits as a result of his injury on December 29, 
 
        1980.
 
        
 
        Claimant is not entitled to bring up the odd-lot issue in a 
 
        review-reopening action when no change of condition has been 
 
        proven.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
        SMITH V. GRALNEK & DUNITZ
 
        Page 5
 
        
 
        
 
                                      ORDER
 
        
 
        THEREFORE, IT IS ORDERED:
 
        
 
        That claimant take nothing from this proceeding.
 
        
 
        That claimant is to pay the costs of the original proceeding and 
 
        the costs of the appeal.
 
        
 
        Signed and filed this 31st day of October, 1988.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                       HELENJEAN WALLESER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         R. V. SMITH,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 665212
 
         GRALNEK & DUNITZ,
 
                                                  A P P E A L
 
              Employer,
 
                                                D E C I S I O N
 
         and
 
         
 
         CNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision denying 
 
         benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening proceeding; claimant's exhibits 1 through 6; 
 
         and, defendants' exhibit A.  Furthermore, at the requests of both 
 
         parties at the review-reopening hearing, official notice was 
 
         taken of the file.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              The deputy stated in his decision that the issues were:
 
         
 
              A.  Whether there was a causal relationship between the 
 
         alleged injury and the disability on which claimant is basing his 
 
         claim; and,
 
         
 
              B.  The extent of permanent partial or permanent total 
 
         disability to which claimant is entitled.
 
         
 
              In his appeal, filed October 21, 1986, claimant further 
 
         argued that Guyton v. Irving Jensen, Co., is applicable to the 
 
         review-reopening proceeding of February 28, 1986.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and generally will not be set 
 
         forth herein.  We take note of the following additional evidence 
 
         presented, however.  In the March 2, 1985 report, Dr. Evans 
 
         assigned claimant a permanent partial impairment rating of 20% of 
 
         the body as a whole using the following formula:
 
         
 
              Range of Motion (ROM)
 
                  (discounted due to muscle weakness)........  .15.5% 
 
              spine
 
              X-ray findings of : L4-L5 IVD....................  5.0% 
 
              spine
 
              Motor Impairment Rating (MIR) Quadriceps (bilat)  37 % LE
 
              Sensory Impairment Rating (SIR) (L5-Sl bilat.) .   5 % LE
 

 
              Summary.......................................    20 % wp
 
         
 
         Dr. Evans reported that he arrived at the impairment rating 
 
         through use of the Guides to the Evaluation of Permanent 
 
         Impairment, AMA, 1984.  He stated that, after review of his 
 
         clinical findings, reports, radiographs and other supportive data 
 
         relative to claimant, he believed that no alternate form of 
 
         therapy was indicated.  He further stated that the recorded facts 
 
         reflected claimant's complaints as did his own examination 
 
         findings.
 
         
 
                              APPLICABLE LAW
 
         
 
              Citations of law in the review-reopening decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of evidence in conjunction with the law in the 
 
         review-reopening decision is adopted.  The greater weight of 
 
         evidence demonstrates that claimant has not had any significant 
 
         change in his physical condition since the prior hearing.  As the 
 
         deputy noted, the report of Dr. Evans does not show a change in 
 
         claimant's physical condition as Dr. Evans first saw claimant on 
 
         March 2, 1985.  Dr. Evans, therefore, did not know claimant's 
 
         condition at any time earlier than Dr. Evans' examination.  
 
         Further, Dr. Evans stated that his findings at time of 
 
         examination were consistent with prior findings as reflected on 
 
         health care records and radiographs he reviewed regarding 
 
         claimant.  Again, as the deputy noted, the fact that Dr. Evans 
 
         might rate claimant differently than did some other physician, 
 
         namely, Dr. Bunten, does not mean that Dr. Evans would not have 
 
         come to the same conclusions at the time of the earlier hearing.  
 
         In his appeal brief, claimant places great emphasis on the fact 
 
         that Dr. Bunten reviewed the report of Dr. Evans on or about July 
 
         3, 1985 and subsequently issued his own report of July 3, 1985.  
 
         Claimant notes that, in that report, Dr. Bunten stated that he 
 
         found Dr. Evans' report consistent with [Dr. Bunten's] 
 
         impression.  Claimant argues that, since Dr. Bunten did not 
 
         question Dr. Evans' 20% whole person impairment rating but found 
 
         Dr. Evans' opinions consistent with Dr. Bunten's, one can 
 
         reasonably infer thae Dr. Bunten agreed that claimant now has a 
 
         20% permanent physical impairment rating as compared to the 10% 
 
         rating Dr. Bunten found at the time of the 1983 review-reopening 
 
         proceeding.  We find that claimant asks us to make too great a 
 
         leap into the sea of potential inferences when he asks us to make 
 
         the leap proposed by his argument.  We believe that, had Dr. 
 
         Bunten wished to indicate his agreement with Dr. Evans' 
 
         subsequent impairment rating for claimant, Dr. Bunten could have 
 
         expressly so stated.  In the absence of such a statement, the 
 
         statement as to consistent impressions must be and should 
 
         properly be limited to a statement concerning claimant's physical 
 
         findings and diagnosed condition and not a statement concerning 
 
         his impairment rating. [we note that claimant's argument lends 
 
         itself readily to its converse.  Dr. Evans also reported that his 
 
         review of claimant's previous radiographs and health records was 
 
         consistent with Dr. Evans' own findings and claimant's 
 
         complaints.  One could equally as well argue from that that Dr. 
 
         Evans had accepted Dr. Bunten's earlier 10% whole person 
 
         permanent partial impairment rating.]
 
         
 
              Likewise, the greater weight of evidence, as the deputy 
 
         noted, fails to show a change in the other factors of industrial 
 
         disability contemplated in the prior review-reopening decision.  
 
         As the deputy stated in the review-reopening decision of August 
 
         14, 1986:
 
         
 
              It is not the undersigned's duty to second guess the 
 
     
 
         
 
         
 
         
 
         
 
         SMITH V. GRALNEK & DUNITZ
 
         PAGE   3
 
         
 
         
 
              deputy who wrote the first decision.  If claimant had 
 
              disagreed with the prior decision, an appeal from that 
 
              decision should have been taken.  The undersigned can 
 
              only make a determination as to permanent impairment if 
 
              a change of condition is shown and claimant has failed 
 
              to show any change in condition.
 
         
 
              The deputy's analysis of the question of whether claimant's 
 
         claim should have been considered under the odd-lot analysis of 
 
         the Guyton decision is a correct statement of the law as 
 
         pronounced in Armstrong v. State of Iowa Bldgs., 382 N.W.2d 161 
 
         (Iowa 1986. and Klein v. Furnas Elec. Co., 384 N.W.2d 370 (Iowa 
 
         1986).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Dr. Bunten examined claimant prior to his July, 1983 
 
         review-reopening hearing.
 
         
 
              Dr. Evans did not examine claimant until January 30, 1985.
 
         
 
              Dr. Bunten again examined claimant on or about July 3, 
 
         1985.
 
         
 
              On March 2, 1985, Dr. Evans found that prior health care 
 
         records and radiographs reflected claimant's complaints as 
 
         reflected by claimant's statements and as supported by Dr. Evans' 
 
         examination findings.
 
         
 
              On July 3, 1985, Dr. Bunten found Dr. Evans' report 
 
         consistent with his impression.
 
         
 
              Dr. Evans assigned claimant a 20% permanent partial 
 
         impairment to the body as a whole on March 2, 1985.
 
         
 
              Dr. Bunten assigned claimant a 10% impairment of the body as 
 
         a whole prior to the 1983 decision.
 
         
 
              Dr. Bunten did not change his permanent partial impairment 
 
         rating for claimant in a July 3, 1985 report.
 
         
 
              Claimant's physical condition has not changed since his 
 
         prior hearing in July, 1983.
 
         
 
              Claimant was not working at the time of the prior hearing in 
 
         July, 1983 and was not working at the time of the 
 
         review-reopening now under appeal.
 
         
 
              Claimant had not sought other employment nor accepted 
 
         employment offered him by defendants at the time of the prior 
 
         hearing in July, 1983 and had not done so at the time of the 
 
         review-reopening proceeding now under appeal.
 
         
 
              Claimant's motivation was questionable at the time of the 
 
         prior hearing in July, 1983 and remained questionable at the time 
 
         of the review-reopening proceeding now under appeal.
 
         
 
              There has not been a change in the factors which the deputy 
 
         issuing the decision in the hearing in July, 1983 used in 
 
         determining claimant's industrial disability.
 
         
 

 
         
 
         
 
         
 
         SMITH V. GRALNEK & DUNITZ
 
         PAGE   4
 
         
 
         
 
              As claimant has had no change in his condition since the 
 
         prior hearing, claimant cannot now appropriately argue that he is 
 
         an odd-lot employee.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established a causal relationship between 
 
         his injury and the disability upon which his claim is based.
 
         
 
              Claimant is not entitled to any further permanent partial 
 
         disability benefits as a result of his injury on December 29, 
 
         1980.
 
         
 
              Claimant is not entitled to bring up the odd-lot issue in a 
 
         review-reopening action when no change of condition has been 
 
         proven.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 
              That claimant is to pay the costs of the original proceeding 
 
         and the costs of the appeal.
 
         
 
              Signed and filed this 31st day of October, 1988.
 
         
 
         
 
         
 
                                        HELENJEAN WALLESER
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Mark A. Humphrey
 
         Attorney at Law
 
         5001 SW Ninth Street
 
         Des Moines, Iowa 50315
 
         
 
         Mr. W. C. Hoffmann
 
         Attorney at Law
 
         1000 Des Monies Building
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1803, 2905, 4100
 
                                                Filed October 31, 1988
 
                                                HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         R. V. SMITH,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 665212
 
         GRALNEK & DUNITZ,
 
                                                       A P P E A L
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         CNA INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803, 2905, 4100
 
         
 
              Claimant did not show change of physical condition or change 
 
         in other factors used to assess industrial disability.
 
         
 
              Claimant not entitled to raise odd-lot in review-reopening 
 
         where no change of condition found.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL A. SCHUTT,
 
         
 
              Claimant,                                   File No. 666100
 
         
 
         vs.                                               R E V I E W -
 
         
 
         RIVERSIDE BOOK & BIBLE,                         R E O P E N I N G
 
         
 
              Employer,                                   D E C I S I O N
 
         
 
         and
 
                                                             F I L E D
 
         BITUMINOUS INSURANCE CO.,
 
                                                            JAN 22 1990
 
              Insurance Carrier,
 
              Defendants.                               INDUSTRIAL 
 
         SERVICES
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by claimant 
 
         Paul A. Schutt against defendant employer Riverside Book & Bible 
 
         and defendant insurance carrier Bituminous Insurance Company to 
 
         recover additional benefits under the Iowa Workers' Compensation 
 
         Act as the result of an injury sustained on March 9, 1981.
 
         
 
              This matter came on for hearing before the undersigned in 
 
         Des Moines, Iowa, on August 31, 1988.  The matter was considered 
 
         fully submitted at the close of hearing, although both parties 
 
         subsequently filed briefs.  The record in the proceeding consists 
 
         of claimant's testimony and joint exhibits 1 through 6.
 
         
 
              An examination of the industrial commissioner's file 
 
         discloses that a memorandum of agreement was filed in this case 
 
         on April 22, 1981.  Claimant subsequently petitioned for 
 
         review-reopening, and a decision was filed by Deputy Industrial 
 
         Commissioner E. J. Kelly on May 31, 1983.  The hearing leading to 
 
         that decision was held in Des Moines, Iowa, on February 25, 1983, 
 
         and the case was considered fully submitted as of that date. 
 
         Defendants subsequently filed an appeal and an appeal decision 
 
         was filed by Industrial Commissioner Robert C. Landess on 
 
         September 30, 1983.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report submitted and approved at 
 
         hearing, the parties have stipulated:  That an employment 
 
         relationship existed between claimant and employer at the time of 
 
         the injury; that claimant sustained an injury on March 9, 1981, 
 
         arising out of and in the course of that employment; that 
 
         claimant suffered an industrial disability to the body as a 
 
         whole; that the appropriate rate of weekly compensation is 
 
         $142.82; that affirmative defenses are waived; that with respect 
 
         to medical bills, the provider of services would testify that 
 
         fees are reasonable and defendants offer no contrary evidence; 
 
         that defendants are not entitled to credit under Iowa Code 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         section 85.38(2); that defendants paid claimant 99 6/7 weeks of 
 
         compensation at the stipulated rate prior to hearing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Issues presented for resolution include:  Whether the work 
 
         injury caused additional temporary and permanent disability; the 
 
         extent of claimant's entitlement to compensation for additional 
 
         temporary total disability or healing period; the extent of 
 
         claimant's entitlement to additional compensation for permanent 
 
         disability and the commencement date thereof; claimant's 
 
         entitlement to medical benefits.  Neither party sought taxation 
 
         of costs.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant, 33 years old at the time of hearing, testified 
 
         that he was an agronomy student at Ellsworth Community College at 
 
         the time of his 1983 hearing.  Since then he obtained an 
 
         associate of arts degree in December, 1984.  Claimant was a 
 
         dean's list student, compiling a grade point average of 
 
         approximately 3.65/4.00.  In addition, claimant took four more 
 
         classes at Ellsworth Community College in the spring of 1985.
 
         
 
              Claimant testified that between his 1983 hearing and 1985, 
 
         he continued to suffer some problems with his neck and shoulder, 
 
         but did not find the problems to be significant.  Pain was 
 
         inconvenient, but was not so severe as to disable him from 
 
         working or studying.  Between 1983 and 1985 claimant suffered no 
 
         additional accidents or injuries and did very little lifting, 
 
         perhaps as much as 10 pounds on a weekly basis while working in a 
 
         greenhouse in a work study program at the community college.
 
         
 
              Claimant further testified to beginning a course of study at 
 
         Iowa State University in August, 1985.  However, claimant 
 
         continued that course of study for only approximately three and 
 
         one-half weeks before his symptoms and pain became exacerbated to 
 
         the point that he considered them unbearable.  Claimant then 
 
         returned to Sterling J. Laaveg, M.D., his previous treating 
 
         physician.  Claimant was admitted to Mercy Hospital, underwent 
 
         physical therapy, and was referred to psychiatrist R. M. Larsen, 
 
         M.D.
 
         
 
              Claimant further testified that he dropped out of school and 
 
         his attendance has been sporadic ever since.  He returned to 
 
         classes in the fall of 1986, completing two courses.  He did well 
 
         during the spring semester of 1987, but was unable to finish 
 
         courses in the summer because of his continued pain.  He 
 
         completed two classes in the fall 1987 semester, but dropped 
 
         other courses. In spring 1988, claimant failed to complete four 
 
         classes and left school in March or April.  On cross-examination, 
 
         claimant testified that he did not sign up for classes in the 
 
         fall 1988 semester due to lack of funds.
 
         
 
              Claimant's employment since the last hearing has only been 
 
         through schools.  His last full-time position was with defendant 
 
         Riverside Book & Bible.  At Ellsworth Community College, claimant 
 
         worked as a tutor and in a work study program.  He worked 
 
         approximately 10 hours per week at a wage of $4.40 per hour. 
 
         During claimant's three and one-half weeks at Iowa State 
 
         University in fall 1985, he worked in a work study program in a 
 
         chemical engineering laboratory.  In fall 1986, he worked in a 
 
         lab as a research aide earning $5.00 per hour, about 10 hours per 
 
         week.  He continued that employment until July 25, 1988, when he 
 
         left the work because of increasingly severe pain.  Claimant 
 
         testified that this was at the advice of Dr. Laaveg.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Since seeing Dr. Laaveg in September, 1985, claimant 
 
         testified he has been treated with physical therapy, trigger 
 
         point injections, and traction, exercises and hot pack treatments 
 
         at home.  Claimant indicated that Dr. Laaveg referred him to the 
 
         Mayo Clinic, and especially to a pain clinic in June, 1988.
 
         
 
              Claimant testified that he was referred to Dr. Larsen by Dr. 
 
         Laaveg and that this was the first time he had seen a 
 
         psychiatrist.  He further testified that Dr. Larsen referred him 
 
         to N. K. Saini, M.D., another psychiatrist, and psychologist 
 
         Lawrence Stewart, M.S.  This referral was necessitated by the 
 
         unwillingness of county government to pay Dr. Larsen because he 
 
         was outside the geographic area required.  Claimant indicated 
 
         that he has continued seeing Dr. Saini on a regular basis.
 
         
 
              Claimant testified that defendants paid Dr. Laaveg's bills, 
 
         but not the bills of Drs. Larsen or Saini, and have not paid.any 
 
         mileage expenses, even to Dr. Laaveg's office.  Claimant also 
 
         testified to an incident in August, 1987, when his long and 
 
         significant relationship with a girlfriend with whom he lived 
 
         broke up.  Claimant agreed this caused additional stress and 
 
         depression, but felt that his exacerbated problems continued only 
 
         two or three months.
 
         
 
              Claimant also testified that he saw Dr. Laaveg again on July 
 
         26, 1988, approximately one month before hearing.  Dr. Laaveg at 
 
         that time restricted him from work and school.
 
         
 
              Claimant also testified that his condition has generally 
 
         changed since February 25, 1983 (the date of his previous 
 
         hearing) in the following respects:  He has lost range of motion 
 
         to his head and left shoulder, suffers tingling to the upper 
 
         extremity, and his pain is increased.  In addition, these 
 
         symptoms and his psychological problems have caused him to leave 
 
         school, largely because he is unable to spend the long hours 
 
         studying required by his course work due to increased pain.
 
         
 
              Dr. Laaveg signed a preprinted certificate of return to work 
 
         or school form on July 25, 1988.  He indicated that claimant was 
 
         unable to return to work/physical education until further notice 
 
         by reason of chronic cervical pain, and that he would see 
 
         claimant again in five to six weeks.
 
         
 
              Dr. Laaveg wrote to claimant's counsel on March 30, 1988, 
 
         enclosing his office notes and correspondence.  He indicated that 
 
         claimant had first been seen on January 15, 1985.  His initial 
 
         examination revealed that claimant had normal motion of the 
 
         cervical spine with no spasm, although tender at C4-5 and C5-6. 
 
         Claimant was tender to palpation along the medial scapular border 
 
         on the left, but had a full range of motion of the shoulder. 
 
         Neurological examination was normal.  A cervical spine series 
 
         showed evidence of early degenerative disc disease and 
 
         degenerative arthritis at C5-6.  Dr. Laaveg indicated that he 
 
         then felt claimant's symptoms arose from his cervical spine and 
 
         were exacerbated by his position while studying.  He further 
 
         indicated that claimant has been seen on multiple occasions since 
 
         then, had had several trigger point injections, but had gradually 
 
         lost motion of the cervical spine due to complaints of pain and 
 
         discomfort.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Laaveg further related that claimant began suffering 
 
         increased complaints of pain and discomfort upon returning to 
 
         school in September, 1985, requiring hospitalization.  Claimant 
 
         did not respond to conservative measures of traction, muscle 
 
         relaxants and the like.  He was referred to Mayo Clinic.
 
         
 
              Dr. Laaveg further related that claimant saw his vascular 
 
         surgical partner, Tim Thomsen, M.D., in July, 1986 for the 
 
         possibility that he was suffering thoracic outlet syndrome.  Dr. 
 
         Thomsen felt that there might be a mild component of thoracic 
 
         outlet syndrome, but that it was not sufficiently significant to 
 
         consider surgical intervention.  Claimant's symptoms had 
 
         basically remained unchanged; if he is active or does bending, 
 
         lifting or twisting, he has increased complaints of pain.
 
         
 
              Dr. Laaveg noted that as of March 9, 1988, claimant 
 
         continued to complain of pain, had limitation of motion of the 
 
         neck, and had symptoms of intermittent paresthesias in the left 
 
         upper extremity. He was scheduled for another appointment with J. 
 
         Eric Ahlskog, M.D., of the Mayo Clinic in the Department of 
 
         Neurology.
 
         
 
              Dr. Laaveg did not wish to assess claimant's final physical 
 
         impairment until receiving Dr. Ahlskog's evaluation.  He stated 
 
         that claimant should not be in a job in which he is lifting over 
 
         20 pounds, doing repetitious bending or twisting, holding his 
 
         head in fixed positions for longer than one hour at any one time, 
 
         or working with his arms above shoulder level.  Dr. Laaveg 
 
         further stated that claimant's symptoms have never completely 
 
         resolved since his March 9, 1981 injury.
 
         
 
              Dr. Laaveg also noticed that claimant had significant 
 
         depression and had been under the care of Dr. Larsen.  He was 
 
         unwilling to express an opinion as to whether claimant's 
 
         psychological problems related to the subject work injury.
 
         
 
              On February 26, 1986, Dr. Laaveg wrote to defendant 
 
         Bituminous to note that claimant has had problems with major 
 
         depression and was under the care of a psychiatrist.  Dr. Laaveg 
 
         stated that depression does affect all musculoskeletal complaints 
 
         and resolution of that depression was part of his rehabilitation 
 
         plan.
 
         
 
              Dr. Laaveg's chart notes of March 9, 1988 show that claimant 
 
         denies that he was then depressed.  He was tender to palpation of 
 
         the cervical spine and over the left trapezius and along the left 
 
         medial scapular border.  Claimant had spasm in the trapezius 
 
         muscle on the left.  Claimant held his neck in a rigid fashion, 
 
         had forward flexion to 10 degrees, 5 degrees of extension.  Right 
 
         and left rotation was 20-25 degrees.  Claimant had full motion of 
 
         the left shoulder.  Claimant had subjective intermittent 
 
         decreased sensation of the left upper extremity, but did not 
 
         follow dermatomal distribution.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              On November 11, 1987, claimant had 10 degrees of extension, 
 
         30 degrees of flexion, and 30 degrees both right and left 
 
         rotation.  He was neurologically intact.  Claimant was tender 
 
         over the left trapezius and at the medial border of the scapula.
 
         
 
              On July 19, 1987, Dr. Laaveg reported that claimant had 
 
         forward flexion of 20 degrees and extension of 10 degrees, right 
 
         and left lateral rotation of 50 degrees each.  Claimant was 
 
         neurologically intact.
 
         
 
              On June 1, 1987, claimant had 15 degrees of flexion, 0 
 
         degrees of extension, and right and left rotation of 45 degrees 
 
         each.  Neurologically he was intact.
 
         
 
              On July 31, 1987, claimant had forward flexion of 20 
 
         degrees, 0 degrees extension, right and left rotation of 15 
 
         degrees each. He was given a trigger point injection.  Claimant 
 
         was described as having a trigger point just above the superior 
 
         medial border of the scapula.
 
         
 
              On March 9, 1987, Dr. Laaveg reported that claimant had 
 
         forward flexion of 20 degrees, extension of 10 degrees, and right 
 
         and left rotation of 45 degrees each.  Claimant noted that as his 
 
         stress increased in college, his neck pain increased.
 
         
 
              On January 7, 1987, claimant had forward flexion of 20 
 
         degrees, extension of 5 degrees, and right and left rotation of 
 
         45 degrees.
 
         
 
              On November 10, 1986, claimant had flexion of 20 degrees, 
 
         extension of 5 degrees, and right and left rotation of 35 
 
         degrees. He was neurologically intact.
 
         
 
              On September 15, 1986, claimant had 20 degrees forward 
 
         flexion, 5 degrees extension, and right and left rotation of 30 
 
         degrees each, being neurologically intact.
 
         
 
              Dr. Laaveg reported on May 7, 1986, that claimant returned 
 
         complaining of pain radiating into the base of the neck and into 
 
         the interscapular area with feelings of numbness in the left hand 
 
         and fingers.  Although neurologically intact, claimant held his 
 
         head in a rigid position, could forward flex 10 degrees and 
 
         extend to neutral.  Right and left rotation was only 15 degrees 
 
         each.
 
         
 
              On January 22, 1986, claimant had increased pain in the 
 
         preceding few weeks with pain radiating to the left trapezius 
 
         muscle mass.  Claimant had occasional numbness in the left hand. 
 
         Claimant had forward flexion of the neck to 30 degrees, 0 degrees 
 
         extension, and 20 degrees right and left rotation.  He was 
 
         neurologically intact.
 
         
 
              On December 11, 1985, claimant returned with less pain and 
 
         less spasm.  He remained tender from C4 to C7 and over the 
 
         trapezius and medial left scapular border.  He had forward 
 
         flexion to 20 degrees, extension of 10 degrees, and right and 
 
         left rotation of 45 degrees.  A month earlier, on November 13, 
 
         1985, he had extension of 5 degrees, flexion of 20 degrees, and 
 
         right and left rotation of 40 degrees.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              On September 16, 1985, claimant returned after starting at 
 
         Iowa State University.  His pain had begun to increase as he was 
 
         carrying books and going to class, such that in the last week he 
 
         had begun having severe pain with intermittent aching and burning 
 
         between the scapulae and into both upper extremities over the 
 
         shoulder.  Claimant had some numbness and tingling in the 
 
         fingers, right greater than left.  Claimant was described as 
 
         extremely depressed.  Claimant was tearful and very tender to 
 
         palpation throughout the cervical spine.  He had extension of 5 
 
         degrees, flexion of 20 degrees, right rotation of 40 degrees and 
 
         left rotation of 35 degrees.  He was tender over the shoulders, 
 
         along the superomedial scapular border and along the inner 
 
         scapular border.  He showed tension and spasm in the trapezius.  
 
         As a result of this examination, claimant was admitted to Mercy 
 
         Hospital on the same day.
 
         
 
              Claimant was seen before this hospitalization on July 8, 
 
         1985.  He had forward flexion of 50 degrees, extension of 20 
 
         degrees, and right and left rotation of 60 degrees.  Before this, 
 
         he was seen on March 27, 1985.  He was then having greatly 
 
         increased pain.  He had forward flexion of 40 degrees, extension 
 
         of 30 degrees, right rotation of 70 degrees, and left rotation of 
 
         45 degrees.
 
         
 
              Claimant's next most recent visit was on February 18, 1985. 
 
         Claimant complained of neck pain somewhat radiating into the left 
 
         trapezius but especially in the interscapular area and along the 
 
         left medial scapular border.  However, claimant had full range of 
 
         motion of the cervical spine.  He remained tender from C4 to C7. 
 
         Again, he was neurologically intact.
 
         
 
              Claimant saw Dr. Laaveg on January 15, 1985.  Dr. Laaveg 
 
         practiced with Norman Hoover, M.D., before Dr. Hoover left the 
 
         practice.  Claimant at this time was complaining of persistent 
 
         symptoms in the neck radiating into the shoulder.  He complained 
 
         of occasional numbness in the left small and ring fingers, but 
 
         denied weakness.  Examination revealed full range of motion of 
 
         the cervical spine with no spasm, although claimant was tender at 
 
         C4-5 and C5-6 and along the superior medial scapular border and 
 
         medial edge of the scapula.  A cervical spine series showed 
 
         adequate maintenance of the disc spaces, but a hint of narrowing 
 
         at C5-6 as had been previously described by Dr. Hoover.  Dr. 
 
         Laaveg's initial impression was of cervical pain as a result of 
 
         early degenerative spondylosis of the cervical spine continuing 
 
         from his previous cervical problem, the exacerbation coming 
 
         primarily from positioning of claimant's head while studying.
 
         
 
              Also in the record is a set of recommendations issued by Dr. 
 
         Laaveg on an undated form.  In Dr. Laaveg's opinion, claimant was 
 
         able to stand at one time one to two hours, four to six hours per 
 
         day.  He was able to sit at one time one to two hours, four to 
 
         six hours per day.  He was able to lift 40 pounds, one to two 
 
         hours per day.  He was able to walk one to two hours at a time, 
 
         four to six per day.  He could bend 15-20 times in a row, 60 per 
 
         day.  He could stoop 15-20 times in a row, 60 per day.  He could 
 
         drive an automobile one to two hours at a time, 200 miles per 
 
         day.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Records of the Mayo Clinic in Rochester, Minnesota, show 
 
         that J. Eric Ahlskog, M.D., wrote Dr. Laaveg on October 21, 1985.  
 
         Dr. Ahlskog reported that claimant's neurological examination 
 
         revealed mild weakness of the left pronator tares and borderline 
 
         of the left digit extensors.  He had a moderate degree of 
 
         cervical paraspinal spasm and a slight patchy loss of pin 
 
         sensation scattered over the left upper extremity.  Cervical 
 
         spine films were negative.  It was Dr. Ahlskog's impression that 
 
         claimant was experiencing symptoms from a left C7 radiculopathy.  
 
         He was treated with cervical traction prior and subsequent to his 
 
         admission and was discharged with instructions to self-administer 
 
         cervical traction.
 
         
 
              Dr. Ahlskog wrote again to Dr. Laaveg on August 9, 1988, 
 
         enclosing a photocopy of his letter to claimant dated June 10, 
 
         1988.  That letter was in the nature of a summarization of his 
 
         thoughts and recommendations following claimant's repeated 
 
         visits. He stated that neurological examination demonstrated no 
 
         clear deficits relevant to claimant's neck and radiating shoulder 
 
         pain. He found no major weakness of the left upper extremity.  
 
         There was no major loss of reflexes in the left arm.  Sensory 
 
         examination revealed no clear deficits, but there were some 
 
         patchy mild reductions of pin sensation over the left shoulder 
 
         girdle region and neck.  The remainder of neurological 
 
         examination was unremarkable.  Dr. Ahlskog went on to report that 
 
         electromyogram revealed no evidence for nerve root irritation at 
 
         the cervical spine level.  MRI scans revealed a possible disc 
 
         protrusion at the fifth cervical interspace extending to the left 
 
         of midline. Because of the absence of any major neurological 
 
         deficits, Dr. Ahlskog advised conservative treatment to consist 
 
         of physical therapy as well as injection in the Mayo Pain Clinic, 
 
         hoping that these measures would be sufficient to improve 
 
         claimant's symptoms.
 
         
 
              Tim J. Lamer, M.D., of the Pain Clinic, reported to Dr. 
 
         Laaveg on June 14, 1988 that claimant was tender over the 
 
         insertion and origin of the levator scapula muscle on the left 
 
         side.  He had an impression of claimant suffering chronic 
 
         myofascial neck and shoulder pain on the left.  He treated 
 
         claimant with two trigger point injections, but wrote on July 26, 
 
         1988 to express his sorrow that claimant did not receive much 
 
         relief from that treatment, although that result was not totally 
 
         unexpected.
 
         
 
              Claimant was seen by Scott B. Neff, D.O., on October 20, 
 
         1986.  Dr. Neff wrote to defense counsel on the same date to 
 
         report that claimant continued to have pain which he described as 
 
         predominantly in the left scapular region and in the 
 
         supraclavicular fossa.  Claimant reported noticing paresthesias 
 
         into the arm if he was reaching for something, but these events 
 
         were occasional.  Physical examination showed claimant to have 
 
         tenderness in the posterior myofascial structures in the neck and 
 
         a very definite trigger point tenderness in the left superior 
 
         trapezius area, consistent with a trigger point syndrome or a 
 
         cervical tension myalgia.  Cervical spine motion was mildly 
 
         diminished "probably secondary to the old injury from the truck 
 
         wreck and associated muscle soreness."  Claimant had been 
 
         seriously injured in a truck accident in 1975.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Neff recommended that an MRI scan be obtained to see if 
 
         claimant had problems with the cervical discs, but indicated that 
 
         such scans would not definitely delineate whether his injury, if 
 
         found, occurred from the truck accident, normal wear and tear, or 
 
         the subject lifting injury.  Dr. Neff stated that in his 
 
         experience lifting objects from the floor as claimant described 
 
         does not cause neck injury, but causes muscle soreness about the 
 
         neck and shoulder girdle, not being synonymous with a disc 
 
         injury.
 
         
 
              Dr. Neff, a Fellow of the American Academy of Orthopaedic 
 
         Surgeons and Diplomate of the American Board of Orthopaedic 
 
         Surgery, opined that, based on his clinical examination, claimant 
 
         did not have a significant impairment "and there is certainly no 
 
         permanent industrial disability associated with the sore muscle 
 
         in the trapezius area.  If this can be proven, with MRI scan or 
 
         even diskography, to be related to disk rupture or disk disease 
 
         in the neck, then that is certainly a different matter, and 
 
         simply a sore muscle in the upper back."
 
         
 
              Dr. Neff saw claimant again on November 24, 1986.  Dr. Neff 
 
         then had an opportunity to review the MRI scan, but found it 
 
         normal without evidence of degenerative or ruptured disc in the 
 
         cervical spine.  Dr. Neff reported that claimant had mild muscle 
 
         soreness in the left superior scapular area consistent with 
 
         trigger point syndrome and, in his opinion, had no significant 
 
         impairment or disability with reference to the sore muscle. 
 
         Claimant was released with a recommendation of no further 
 
         treatment besides occasional aspirin and warm showers.
 
         
 
              Claimant was seen for evaluation by A. J. Wolbrink, M.D., on 
 
         February 10, 1982.  Dr. Wolbrink believed that claimant had 
 
         suffered a partial rupture of a cervical disc in the work injury. 
 
         Claimant had grade II limitation of motion of the cervical spine 
 
         with flexion of about 40 degrees, extension of 15 degrees, and 
 
         rotation of 20 degrees to either side.  Dr. Wolbrink was of the 
 
         view that claimant could stand for forty-five minutes at one 
 
         time, eight hours per day; sit at one time one hour, eight hours 
 
         per day; lift twenty pounds, eight hours per day; walk at one 
 
         time two hours, eight hours per day; bending and stooping 
 
         unlimited and driving 400 miles per day.
 
         
 
              Dr. Wolbrink had seen claimant on referral from Dr. Hoover 
 
         following his truck accident in September, 1975.  He was 
 
         generally of the view that claimant would benefit from a cervical 
 
         fusion and probably would continue to have significant symptoms 
 
         until the fusion was performed.  This was reported in a letter to 
 
         Dr. Hoover dated November 8, 1976.
 
         
 
              Records of St. Joseph Mercy Hospital show that claimant was 
 
         admitted on September 16, 1985 and discharged on September 23, 
 
         1985.  Dr. Laaveg was listed as physician, with Dr. Larsen as 
 
         consulting physician.  Final diagnosis was acute cervical pain 
 
         with left radiculitis and major depression.  Dr. Laaveg reported 
 
         on discharge that claimant had a negative cervical spine film.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Chart notes of Eldora Hospital dated June 28, 1988 show that 
 
         claimant was continuing to complain of pain.  Range of motion 
 
         examination showed flexion and extension of 3/4 full range of 
 
         motion and rotation left to 50 degrees, right to 40 degrees.
 
         
 
              Claimant was seen by psychiatrist Ronald Larsen at least by 
 
         October 1, 1985, when Dr. Larsen wrote to the director of 
 
         enrollment, Iowa State University, to state that claimant was 
 
         being treated for his pain syndrome and major depression and 
 
         unable to return to college-level work.  Dr. Larsen subsequently 
 
         prepared a psychiatric evaluation on February 17, 1986.  Claimant 
 
         was at that time being treated as an outpatient.  Dr. Larsen's 
 
         plan was to continue treating claimant with Norpramin and Valium 
 
         along with pain medicines and to enroll him in biofeedback 
 
         training.  Dr. Larsen's impression was of disability due to 
 
         orthopaedic neck problem; secondary depression.
 
         
 
              Dr. Larsen wrote to claimant on November 4, 1986 in 
 
         pertinent part:
 
         
 
              As we have discussed at your recent appointment, I have been 
 
              treating you for a secondary depression directly related to 
 
              your orthopedic disability.  This medication has allowed you 
 
              to continue school at Iowa State University and is an 
 
              essential part of your treatment program.
 
         
 
              It is my understanding that insurance has not been paying 
 
              for these outpatient medications.  I have a serious concern 
 
              that if you stop the medications you will no longer be able 
 
              to attend school and the overall cost for your care and 
 
              rehabilitation will be significantly higher.
 
         
 
              For these reasons, I believe it is imperative that the 
 
              insurance reexamine your need for outpatient medication and 
 
              compensate you for the medicine's cost.
 
         
 
              Claimant was also seen by psychiatrist N. K. Saini, M.D.  
 
         Dr. Saini's chart notes begin on August 20, 1987.  Chart notes of 
 
         psychologist Lawrence Stewart, M.S., of that date make note of 
 
         claimant's history of depression beginning in 1985 and that 
 
         claimant had been on medication steadily and doing well.  He 
 
         noted that around the first of that month, claimant's girlfriend 
 
         had left him and that claimant had suffered some depression, 
 
         losing about 10 pounds.  Claimant reported that school was a 
 
         constant stress.  Mr. Stewart noted that claimant's referral was 
 
         from Dr. Larsen, who was affiliated in part with the North Iowa 
 
         Mental Health Center.
 
         
 
              Dr. Saini prepared chart notes beginning August 27, 1987.  
 
         He noted that claimant did not seem to be suffering from acute 
 
         depressive mood, but had mild dysphoric feelings related to a 
 
         sense of loss or bereavement reaction from his broken 
 
         relationship with his girlfriend.  Dr. Saini's diagnosis:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              AXIS I:  Major Depression, Single Episode with Melancholia, 
 
              296.23
 
         
 
              AXIS II:  None
 
         
 
              AXIS III:  Ruptured Neck Disk and disabled 30% since year 
 
              1982.
 
         
 
              AXIS IV:  Current separation from girlfriend, ongoing stress 
 
              of school, Moderate-4.
 
         
 
              AXIS V:  Highest functioning level within the past year: 
 
              Good-3.
 
         
 
              Dr. Saini noted that claimant's bereavement reaction related 
 
         to his broken relationship seemed uncomplicated and for that 
 
         reason had not been placed on any axes.  Claimant was given a 
 
         prescription for Norpramin and Diazepam and was to be seen 
 
         bimonthly by Dr. Saini and monthly by Mr. Stewart.
 
         
 
              On September 24, 1987, Dr. Saini noted that claimant had 
 
         suffered a number of stressful events in the recent past such as 
 
         his broken relationship, was having difficulty coping and unable 
 
         to take too much stress.  He recommended "on medical grounds that 
 
         he may not put himself on undue burden such as doing too many 
 
         courses at the university."  He was advised to drop a German 
 
         language course and continue seeing Dr. Saini and Mr. Stewart.
 
         
 
              On October 27, 1987, Dr. Saini noted that claimant continued 
 
         suffering from depression, although not acute, and recommended 
 
         that claimant drop a history course.  Claimant was doing better 
 
         and was more optimistic about things in general.
 
         
 
              Dr. Saini's notes continue through March 16, 1988.  He 
 
         recommended that claimant drop several additional college courses 
 
         during that time.  The notes make a number of references to 
 
         claimant's continuing problems relating to the break-up with his 
 
         girlfriend, but do not make mention of relationship to the 
 
         subject work injury.  Dr. Saini's notes do not indicate any 
 
         opinion as to the causation of claimant's continuing problems.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Pursuant to Iowa Code section 86.14(2), in a proceeding to 
 
         reopen an award for payments inquiry is to be made into whether 
 
         or not the condition of the employee warrants an end to, 
 
         diminishment of, or increase of compensation so awarded.  A 
 
         change in condition must be shown to change the original award.  
 
         Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 (1959).  It is not 
 
         proper to merely redetermine the condition of the employee as 
 
         adjudicated by the former award.  Stice v. Consolidated Ind. Coal 
 
         Co., 228 Iowa 1031, 291 N.W. 452 (1940).
 
         
 
              A mere difference of opinion of experts or competent 
 
         observers as to the degree of disability arising from the 
 
         original injury is insufficient to justify a different 
 
         determination on a petition for review-reopening; there must be 
 
         substantial evidence of a worsening of the condition not 
 
         contemplated at the time of the first award, Bousfield v. Sisters 
 
         of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957), or a change in 
 
         condition may be found where a claimant has failed to improve to 
 
         the extent initially anticipated, Meyers v. Holiday Inn of Cedar 
 
         Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978).  Additionally, a 
 
         change in earning capacity subsequent to the original award which 
 
         is proximately caused by the original injury may constitute a 
 
         change in condition.  Blacksmith v. All-American, Inc. 290 N.W.2d 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         348 (Iowa 1980).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Thus, as a starting point, it is mandatory to review 
 
         claimant's condition as disclosed by the earlier award as a 
 
         starting point in determining whether claimant has established 
 
         the requisite change in condition.
 
         
 
              The appeal decision filed September 30, 1983, the final 
 
         agency decision on the petition for review-reopening, noted that 
 
         claimant had preexisting back and neck problems relating back to 
 
         his 1975 motor vehicle injury.  In holding claimant to have 
 
         suffered an industrial disability of 15 percent, it noted that 
 
         Drs. Hoover and Wolbrink respectively estimated the degree of 
 
         claimant's physical impairment resulting from the subject injury 
 
         and aggravation to the back and left shoulder to be 10 percent 
 
         and 5 percent.  It was clear to the industrial commissioner that 
 
         claimant was at that time permanently disabled from performing 
 
         his former job at Riverside Book & Bible "as well as most any job 
 
         which he has held since graduating from high school."  Claimant 
 
         had been unable to find employment of any nature after his injury 
 
         and had not achieved a college degree, although he was then 
 
         attending classes.  It was noted that claimant's work resume 
 
         included only laboring and driving jobs and that claimant was 
 
         currently a candidate in a college degree program.
 
         
 
              Commissioner Landess went on to state in the appeal 
 
         decision:
 
         
 
              Based upon the facts and circumstances of this case it would 
 
              not have been unreasonable for the deputy to have found 
 
              claimant to have an industrial disability in excess of 15 
 
              percent of the body as a whole.  At the same time, it was 
 
              not unreasonable for the deputy to minimize his finding as 
 
              to industrial disability based upon claimant's intellectual 
 
              potential and pursuit of a college degree.  Careful reading 
 
              of the deputy's decision reveals that claimant's pursuit of 
 
              further education and his potential for employment in an 
 
              area of expertise serve to mitigate the size of claimant's 
 
              award of industrial disability.  As such, the decision of 
 
              the deputy shall be affirmed.
 
         
 
              Thus, it is clear that claimant's "pursuit of further 
 
         education and his potential for employment in an area of 
 
         expertise" operated to mitigate the amount of his industrial 
 
         disability.  Under current agency precedent, potential future 
 
         educational success is simply not a factor in the assessment of 
 
         industrial disability.  Minner v. ADM, file number 828393 (App. 
 
         Decn. November 29, 1989).  However, it is held that the law of 
 
         the case governs here:  Claimant's potential for educational 
 
         success was clearly a substantial factor in the original award 
 
         and must be considered in determining whether a change in 
 
         condition has been shown.
 
         
 
              But, what precisely was claimant's educational status at the 
 
         time of the original award, or more specifically, on the date of 
 
         hearing:  February 25, 1983?  Although Commissioner Landess was 
 
         less specific than the deputy who authored the review-reopening 
 
         decision, that decision was found not unreasonable.  It appears 
 
         that the appeal decision essentially found that the 
 
         review-reopening decision of May 31, 1983 did not constitute an 
 
         abuse of discretion in considering claimant's educational 
 
         potential.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The deputy wrote:
 
         
 
                   It is clear that claimant has certain intellectual 
 
              talents and should be encouraged at all costs to pursue 
 
              them. Both counsel for the claimant and counsel for the 
 
              defense, in their briefs, acknowledge that he is doing well 
 
              in school and may, long-range, be in a substantially better 
 
              position than he would be as a laborer.  The status of the 
 
              record in the present case is that the claimant intends to 
 
              pursue his college education and, in fact, is doing so.  If, 
 
              in fact, he should discontinue that activity the question 
 
              then arises as to the potential of a future review-reopening 
 
              proceeding in this case based upon a change in claimant's 
 
              status.  The potential of this course of action remains to 
 
              be seen.  This decision is based on the fact that claimant 
 
              is in college, doing well scholastically, and intends to 
 
              pursue his education.
 
         
 
              The deputy's findings of fact specified that claimant was 
 
         then into his third semester of college courses at Ellsworth 
 
         Community College, making excellent grades, and intending to 
 
         pursue a degree in agronomy.
 
         
 
              The appeal decision found as fact merely that claimant was 
 
         currently a candidate in a college degree program.
 
         
 
              Neither the appeal decision or the earlier review-reopening 
 
         decision make specific findings of fact as to what physical 
 
         limitations claimant may have had at the time of the first 
 
         hearing.  In reviewing the evidence, the appeal decision noted 
 
         claimant's testimony that he now did only light lifting of 
 
         objects such as groceries and avoided activities such as house 
 
         cleaning or yard work.  Claimant testified that sitting for long 
 
         periods, standing, stooping, and reaching caused pain in his 
 
         shoulder and numbness in the left arm.  The numbness had occurred 
 
         after the 1975 injury, but the complaints of shoulder pain 
 
         existed only since the subject injury.
 
         
 
              The review-reopening decision did not specify in its review 
 
         of the evidence what limitations had been imposed, if any. 
 
         However, it did note claimant's testimony that Dr. Hoover had 
 
         placed work restrictions on him, apparently in mid-1981.
 
         
 
              At page 43 of exhibit 1 is an undated form prepared by Dr. 
 
         Laaveg.  The original of that form appears as page 2A of the 
 
         appendix to employer's exhibit A submitted at the February 25, 
 
         1983 hearing.  Claimant relies heavily on the limitations set 
 
         forth therein as establishing his prior condition for purposes of 
 
         measuring change.  However, that was not the only evidence of 
 
         physical limitations introduced at the earlier hearing.  
 
         Employer's exhibit A, the disability report of Marian Jacobs, 
 
         which was extensively quoted from in both the appeal and 
 
         review-reopening decisions, also makes note of other medical 
 
         reports not otherwise in evidence.  Ms. Jacobs notes that Dr. 
 
         Hoover on August 7, 1981 opined that claimant should be 
 
         restricted to lifting 25 pounds and should not be required to 
 
         work in one position for long periods of time.  Dr. Wolbrink 
 
         further set forth limitations on February 11, 1982:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Stand at one time:  45 minutes; 8 hours per day
 
              Sit at one time:  1 hour; 8 hours per day
 
              Lift (pounds):  20 pounds; 8 hours per day
 
              Walk at one time:  2 hours; 8 hours per day
 
              Bend:  Unlimited
 
              Stoop:  Unlimited
 
              Drive automobile:  400 miles per day
 
         
 
              Dr. Laaveg imposed the most recent set of restrictions in 
 
         his letter to claimant's attorney of March 30, 1988:  Claimant 
 
         should not be in a job in which he is lifting over 20 pounds, 
 
         doing repetitious bending or twisting, holding his head in fixed 
 
         positions for longer than one hour at any one time or working 
 
         with his arms above shoulder level.  The restrictions Dr. Laaveg 
 
         set forth on the undated form submitted at the prior hearing 
 
         were, according to Ms. Jacobs, prepared on February 7, 1983, or 
 
         only two weeks before that hearing.  Therefore, claimant's weight 
 
         limitation has been reduced from 40 pounds to 20 pounds.  Whereas 
 
         claimant could bend 15-20 times in a row and 60 times per day, he 
 
         is now restricted from doing repetitious bending. In addition, he 
 
         now has a restriction against twisting, from holding his head in 
 
         a fixed position for longer than one hour or for working with his 
 
         arms above shoulder level, all restrictions that did not preexist 
 
         the prior hearing.
 
         
 
              Claimant's range.of motion in the neck was reported by Dr. 
 
         Wolbrink on February 11, 1982 as flexing about 40 degrees, 
 
         extension of 15 degrees, side bending 20 degrees and rotation 
 
         about 40 degrees to either side (claimant's exhibit 1, 2/25/83 
 
         hearing).  Marian Jacobs makes reference to Dr. Hoover's report 
 
         of November 27, 1981 as showing flexion to 30 degrees, extension 
 
         to 10 degrees, lateral bending to 30 degrees bilaterally and 
 
         rotation to about 30 degrees bilaterally.
 
         
 
              As a review of the range of motion measurements set forth 
 
         supra shows, claimant has demonstrated substantial variance in 
 
         his range of motion from 1985 to 1988.  Nonetheless, it does 
 
         appear that the range of motion in claimant's neck has generally 
 
         decreased to a substantial degree since the earlier hearing.
 
         
 
              It is therefore concluded that claimant has met his burden 
 
         of proof in establishing by substantial evidence that there has 
 
         been a deleterious change in the range of motion of his cervical 
 
         spine and in the medical restrictions which have been placed upon 
 
         him since the original review-reopening hearing in this matter.
 
         
 
              As noted above, one of the important factors considered in 
 
         the earlier review-reopening and appeal decisions was claimant's 
 
         status as a student and academic potential.  Therefore, this must 
 
         be a significant factor in evaluating any change in claimant's 
 
         industrial disability.  At the time of the earlier hearing, 
 
         claimant was a student in a community college.  He has now 
 
         completed that course and been awarded an associate of arts 
 
         degree.  However, the course of study was intended to culminate 
 
         in a more advanced degree upon continued study at Iowa State 
 
         University.  Although the earlier decisions are a little unclear 
 
         to this reader, it appears that the deputy's decision to mitigate 
 
         industrial disability was based on an expectation that claimant 
 
         would finish a bachelor's degree.  This leads to the somewhat odd 
 
         conclusion that claimant's current earning capacity may have been 
 
         increased by his associate's degree, but the mitigation or 
 
         abatement of his industrial disability actually decreased because 
 
         he is not progressing to his bachelor's degree as was the 
 
         expectation of the deputy and commissioner.  In terms of that 
 
         potential which was used to mitigate industrial disability, it 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         seems that claimant still has the potential of eventually 
 
         obtaining his degree with associated increased earning power. 
 
         Although claimant was under Dr. Laaveg's restriction at the time 
 
         of hearing, he testified that his reason for not signing up for 
 
         fall 1988 classes was lack of funds, not his work injury. 
 
         Nonetheless, it seems that claimant's potential for graduation is 
 
         diminished because of the ongoing problems he has had in 
 
         completing course work.  And, in any event, even if claimant does 
 
         eventually obtain his degree, it might well be said that his 
 
         lifetime earnings have been decreased because he did not obtain 
 
         his eventual degree as early as might otherwise have been the 
 
         case, had the change in condition in his cervical spine and his 
 
         psychiatric problems not occurred.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              As to claimant's psychological difficulties, it should be 
 
         noted that the only physician to have expressed an opinion as to 
 
         whether those difficulties are related to the work injury is Dr. 
 
         Larsen.  Dr. Larsen wrote on November 4, 1986, that he was 
 
         treating claimant for a secondary depression directly related to 
 
         claimant's orthopaedic disability.  Therefore, it is held that 
 
         the work injury was a significant causative factor with respect 
 
         to claimant's psychological disturbances.  In turn, those 
 
         disturbances have been a major factor in claimant's slow progress 
 
         towards his eventual degree.  To that degree they are 
 
         contributory to increased industrial disability.  However, the 
 
         record does not reflect evidence indicating that claimant's 
 
         psychological problems are anticipated to be permanent in nature.  
 
         Therefore, those factors have not been otherwise considered as 
 
         contributing to additional permanent disability.
 
         
 
              Claimant's increased restrictions and deterioration in 
 
         cervical range of motion are held to have some impact on 
 
         claimant's current employability, but comparatively little.  That 
 
         is so because of the specific finding in the earlier appeal 
 
         decision that claimant was at that time already disqualified from 
 
         essentially all the work in which he had preexisting experience. 
 
         However, there are presumably some positions which claimant could 
 
         have filled then, but cannot now.  For example, it is no doubt 
 
         possible to postulate certain warehouse supervisory positions 
 
         that involve lifting 20 pounds, but not 40 pounds.  Therefore, 
 
         this factor has been assigned weight in determining claimant's 
 
         present industrial disability, but its impact is relatively 
 
         minor.
 
         
 
              Considering all these factors in particular and the record 
 
         in general, it is the conclusion of the undersigned that claimant 
 
         has undergone a change in condition since the earlier 
 
         review-reopening decision, and that there has been a change 
 
         in.his industrial disability as discussed above.  The amount of 
 
         claimant's industrial disability attributable to the work injury 
 
         has increased from 15 percent of the body as a whole to 25 
 
         percent of the body as a whole.  Therefore, claimant shall be 
 
         awarded an additional 50 weeks of benefits as further permanent 
 
         partial disability.
 
         
 
              Claimant seeks additional healing period benefits.  Healing 
 
         period can be interrupted or intermittent.  Willis v. Lehigh 
 
         Portland Cement Co., 2-1 Iowa Industrial commissioner Decisions 
 
         485 (1984).  Healing period is that time during which there is 
 
         reasonable expectation of improvement, and it ends when maximum 
 
         medical improvement is attained.  Armstrong Tire & Rubber Co. v. 
 
         Kubli, 312 N.W.2d 60 (Iowa App. 1981).
 
         
 
              Under Iowa Code section 85.34(1), healing period is payable 
 
         until the employee has returned to work, it is medically 
 
         indicated that significant improvement from the injury is not 
 
         anticipated or until the employee is medically capable of 
 
         returning to substantially similar employment, whichever first 
 
         occurs.  In this case, claimant was hospitalized from September 
 
         16 through September 23, 1985.  Claimant seeks additional healing 
 
         period benefits based on his return to school in fall, 1986.  
 
         Claimant was apparently not looking for work during any of this 
 
         time.  While one might jokingly speak of a "professional 
 
         student," it seems unreasonable to equate the pursuit of academic 
 
         attainment with an actual return to work in the context of 
 
         determining healing period eligibility.  After all, one cannot 
 
         actually "return to work" when school is not in session. In this 
 
         case, claimant did not seek to return to work after his 
 
         hospitalization, so that measuring stick is essentially useless.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              However, it remains claimant's burden of proof to establish 
 
         his entitlement to healing period benefits.  It would be improper 
 
         to award benefits based on speculation as to when he was capable 
 
         of returning to "substantially similar employment."  It has 
 
         frequently been held that healing period ends when a treating 
 
         physician is first able to assess a disability rating, since this 
 
         implies that further improvement is not anticipated.  Lowe v. 
 
         Iowa State Penitentiary, file number 776977 (App. Decn. December 
 
         16, 1988).  However, in this case, treating physician Laaveg has 
 
         specifically refused to assess claimant's impairment until 
 
         receiving Dr. Ahlskog's evaluation, which he apparently had not 
 
         done at the time of hearing.  However, the best alternative for 
 
         the commencement date of additional permanent partial disability 
 
         is the date Dr. Laaveg imposed increased physical restrictions: 
 
         March 30, 1988.
 
         
 
              Based on these considerations, it is held that claimant has 
 
         established his entitlement to additional healing period benefits 
 
         from September 16 through September 23, 1985, when he was 
 
         hospitalized and clearly unable to work.  Claimant has not met 
 
         his burden of proof in establishing entitlement to healing period 
 
         following his release from the hospital, since it would require 
 
         speculation on the part of this deputy to determine the extent of 
 
         that entitlement.
 
         
 
              Claimant also seeks healing period or temporary total 
 
         disability benefits from July 26, 1988 and for an indefinite time 
 
         thereafter, based on Dr. Laaveg having checked a preprinted form 
 
         to the effect that claimant was unable to return to work/physical 
 
         education until further notice by reason of chronic cervical 
 
         pain. As has been seen, this occurred after the commencement date 
 
         of permanent partial disability.  Claimant has a long-standing 
 
         history of cervical pain, some of which relates to his accident 
 
         in 1975 and some of which relates to his work injury here under 
 
         review.  That injury occurred in 1981.  Obviously, both injuries 
 
         are quite remote when compared to July, 1988.  Dr. Laaveg's note 
 
         assesses claimant's problem as chronic cervical pain.  The 
 
         undersigned is of the view that it remains claimant's burden of 
 
         proof to establish causal connection between that specific 
 
         episode of remote pain and claimant's work injury.  Citations 
 
         above show that this is essentially in the realm of expert 
 
         testimony.  There is a dearth of expert testimony on that issue.  
 
         Claimant has failed to meet his burden of proof in establishing 
 
         entitlement to temporary total disability benefits based on the 
 
         July 25 form signed by Dr. Laaveg.
 
         
 
              Claimant's medical bills and claimed mileage are set forth 
 
         in his exhibit 2.  Dr. Laaveg was an authorized treating 
 
         physician and referred claimant to psychiatric care.  Referral of 
 
         a patient by an authorized physician constitutes further 
 
         authorization. Limoges v. Meier Auto Salvage, I Iowa Industrial 
 
         Commissioner Report 207 (1981).  Claimant's bills at the Mayo 
 
         Clinic and with Drs. Larsen and Saini are deemed authorized.  
 
         Review of the medical exhibits does not indicate that the medical 
 
         expenses were incurred for anything but reasonable and necessary 
 
         medical treatment.  The parties have stipulated that the provider 
 
         of services would testify that the fees were reasonable and no 
 
         contrary evidence was presented.  Causal connection to the work 
 
         injury has been established by Drs. Laaveg and Larsen.  
 
         Therefore, claimant will be awarded the medical bills, mileage 
 
         and parking expense, prescription expense and miscellaneous 
 
         expense set forth on summary page 45 of exhibit 2.  Defendants 
 
         shall pay the medical bills directly to the suppliers, but 
 
         reimburse claimant for his mileage expense, prescription expense 
 
         and miscellaneous expense.
 

 
         
 
 
 
 
 
 
 
 
 
 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         ultimate facts are found:
 
         
 
              1.  Since February 25, 1983, claimant has lost range of 
 
         motion to his cervical spine.
 
         
 
              2.  Since February 25, 1983, claimant has been given 
 
         additional medical restrictions relating to his cervical spine: 
 
         his lifting limitation has been reduced from 40 pounds to 20 
 
         pounds; he is now entirely restricted from doing repetitious 
 
         bending; he is restricted against twisting; he is restricted from 
 
         holding his head in a fixed position for longer than one hour; he 
 
         is restricted from working with his hands above shoulder level.
 
         
 
              3.  Although claimant has attained an associate of arts 
 
         degree since his previous hearing, he has failed to progress 
 
         satisfactorily towards completion of an anticipated bachelor's 
 
         degree by reason of increased cervical pain and psychological 
 
         difficulties.
 
         
 
              4.  Claimant's psychological difficulties are causally 
 
         related to the subject work injury to his cervical spine.
 
              
 
              5.  Claimant's psychological problems have not been shown to 
 
         be permanent in nature.
 
         
 
              6.  Although claimant's primary treating physician has not 
 
         expressed an opinion as to the extent of claimant's current 
 
         physical impairment relating to his cervical spine, additional 
 
         restrictions were imposed on March 30, 1988.
 
         
 
              7.  Because of the additional medical limitations imposed on 
 
         claimant, he has suffered a diminution of his earning capacity.
 
         
 
              8.  Claimant still has the potential of obtaining his 
 
         bachelor's degree as anticipated by the prior review-reopening 
 
         and appeal decisions, but his lifetime earning capacity has been 
 
         diminished because of the unanticipated delay in obtaining that 
 
         degree.
 
         
 
              9.  Claimant was hospitalized from September 16 through 
 
         September 23, 1985, but has not established that any further 
 
         temporary disability was caused by the work injury.
 
         
 
              10.  Although claimant was advised by his physician that he 
 
         was unable to return to work/physical education from July 26, 
 
         1988 and for an indefinite time thereafter, no evidence was 
 
         presented to show that this additional indefinite disability is 
 
         causally related to the subject work injury.
 
         
 
              11.  Claimant's medical bills and mileage as set forth in 
 
         exhibit 2 were authorized, incurred for reasonable and necessary 
 
         medical treatment, were causally connected to the work injury, 
 
         and the fees were reasonable.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously cited, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established by his burden of proof that he 
 
         has suffered a change in condition since the prior appeal 
 
         decision in this matter filed September 30, 1983, following a 
 
         prior hearing of February 25, 1983.  His change of condition has 
 
         increased his industrial disability beyond that anticipated at 
 
         the time of the prior appeal decision.
 
         
 
              2.  Claimant has established entitlement to an additional 10 
 
         percent industrial disability to the body as a whole, or 50 
 
         weeks.
 
         
 
              3.  Claimant has established entitlement to additional 
 
         intermittent healing period benefits from September 16 through 
 
         September 23, 1985 (1 week, 1 day).
 
         
 
              4.  Claimant is entitled to medical expenses, mileage, 
 
         prescription expense, and miscellaneous expense as set forth on 
 
         summary page 45 of exhibit 2.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant fifty (50) weeks of 
 
         permanent partial disability at the rate of one hundred forty-two 
 
         and 82/100 dollars ($142.82) per week commencing March 30, 1988 
 
         and totalling seven thousand one hundred forty-one and 00/100 
 
         dollars ($7,141.00).
 
         
 
              Defendants shall pay unto claimant one point one four three 
 
         (1.143) weeks of healing period benefits at the rate of one 
 
         hundred forty-two and 82/100 dollars ($142.82) per week payable 
 
         commencing September 16, 1985, totalling one hundred sixty-three 
 
         and 24/100 dollars ($163.24).
 
         
 
              Defendants shall pay to the medical suppliers set forth on 
 
         page 45 of claimant's exhibit 2 the medical bills set forth 
 
         therein and totalling three thousand eight hundred eighty-nine 
 
         and 35/100 dollars ($3,889.35).
 
         
 
              Defendants shall pay to claimant mileage and parking expense 
 
         of one thousand seven hundred ninety-five and 49/100 dollars 
 
         ($1,795.49), prescription expenses of two thousand three hundred 
 
         thirty-six and 40/100 dollars ($2,336.40), and miscellaneous 
 
         expenses of eighty-two and 06/100 dollars ($82.06), all as set 
 
         forth on page 45 of claimant's exhibit 2.
 
         
 
              As all unpaid weekly benefits have accrued as of the date of 
 
         this decision, they shall be paid in a lump sum together with 
 
         statutory interest thereon pursuant to Iowa Code section 85.30.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Each party shall be responsible for its own costs.
 
         
 
              Defendants shall file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 22nd day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DAVID RASEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         W. Des Moines, Iowa  50265
 
         
 
         Mr. David L. Brown
 
         Mr. John E. Swanson
 
         Attorneys at Law
 
         8th Floor Fleming Building
 
         Des Moines, Iowa  50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1802, 1803
 
                                            Filed January 22, 1990
 
                                            DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL A. SCHUTT,
 
         
 
              Claimant,
 
         
 
         vs.                                          File No. 666100
 
         
 
         RIVERSIDE BOOK & BIBLE,                       R E V I E W -
 
         
 
              Employer,                              R E 0 P E N I N G
 
         
 
         and                                          D E C I S I 0  N
 
         
 
         BITUMINOUS INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              In review-reopening case, claimant's educational 
 
         attainment.and further potential were important factors in 
 
         determining industrial disability because claimant's potential 
 
         had been an important factor mitigating industrial disability in 
 
         earlier appeal decision; thus, it was law of the case 
 
         notwithstanding Minner v. ADM, file number 828393 (App. Decn. 
 
         November 29, 1989).
 
         
 
              Commencement date for additional permanent partial 
 
         disability held to be date physician imposed additional 
 
         restrictions, where evidence was inadequate as to additional 
 
         healing period, claimant was a student, and physician refused to 
 
         opine as to additional impairment rating.
 
         
 
         1802
 
         
 
              Start of a new semester was not equated with "return to 
 
         work" for a full-time student, and was not a valid determinant of 
 
         the end of claimant's healing period.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HAROLD HARDING,
 
         
 
              Claimant,                             File  No. 666376
 
         
 
         vs.                                         R E V I E W -
 
         
 
         WILSON FOODS CORP.,                       R E 0 P E N I N G
 
         
 
              Employer,                             D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.                               F I L E D
 
         
 
                                                      JUN 6 1989
 
         
 
                                                 INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening from an agreement 
 
         for settlement with partial commutation brought by Harold Harding 
 
         against Wilson Foods Corporation, his self-insured former 
 
         employer.
 
         
 
              The case was heard and fully submitted on October 26, 1988 
 
         at Cedar Rapids, Iowa.  The record in this proceeding consists of 
 
         testimony from Harold Harding, Philip McCurdy, Patricia Aten and 
 
         Michael Huston.  The record also contains claimant's exhibits 1, 
 
         2, 3, 4, 5 and 8 and defendant's exhibits A and B.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks further benefits for permanent partial 
 
         disability as a result of the injury that occurred on March 24, 
 
         1981.  The first issue to be determined is whether claimant has 
 
         experienced a change of condition or change in circumstances, 
 
         that was proximately caused by the 1981 injury, and that occurred 
 
         since the time of the settlement in August, 1985.  The remaining 
 
         issue to be determined, subject to the determination of the 
 
         first, is determination of the extent of claimant's current 
 
         permanent partial disability that was proximately caused by the 
 
         March 24, 1981 injury.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         Conclusions about what the evidence showed are inevitable with 
 
         any summarization.  The conclusions in the following summary 
 
         should be considered to be preliminary findings of fact.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Harold Harding is a 52-year-old married man who is employed 
 
         at Cedar Rapids Meats, also known as Farmstead Foods.  Claimant 
 
         had been employed by Wilson Foods Corporation since August, 1968 
 
         and remained employed at the same plant when the plant was 
 
         purchased by his current employer from Wilson.
 
         
 
              Claimant is a 1955 graduate of Eddyville High School.  He 
 
         has some further vocational training in metal work, welding, 
 
         collective bargaining and workers' compensation.
 
         
 
              Claimant's work history prior to his employment with Wilson 
 
         Foods included the United States Marine Corps, farm work, foundry 
 
         work, farm implement manufacturing and.heavy equipment 
 
         manufacturing.  Claimant has held a number of different positions 
 
         while employed by Wilson Foods.  He has pulled lard, packed hams 
 
         into boxes for shipment, hung bellies on smoke trees and worked 
 
         opening stomaches in the condemned room on the beef kill.  
 
         Claimant has been in the mechanical gang since 1979 where he 
 
         works as a millwright.
 
         
 
              Claimant's work as a millwright varies considerably from day 
 
         to day, but it involves activities such as changing bearings, 
 
         sprockets and motors.  It requires bending, lifting and crawling.
 
         
 
              Claimant has sustained a number of different injuries over 
 
         the years.  At the time of hearing, he was wearing a splint on 
 
         his wrist for a recent injury.  The primary injury under 
 
         consideration in this case is the one that occurred on March 24, 
 
         1981 when claimant injured his cervical spine while pulling a 
 
         motor off a coworker's arm.  That injury resulted in 
 
         hospitalization tests and two surgeries.  Claimant's primary 
 
         treating physician for his cervical condition was James R. 
 
         LaMorgese, M.D., a neurosurgeon. Following recuperation, claimant 
 
         returned to work as a millwright in March or April of 1982.
 
         
 
              Claimant testified that, upon his return to work, he got 
 
         along pretty well at first with the 35-40 pound lifting 
 
         restriction that the doctor had imposed.  Claimant stated that he 
 
         is unable to move as quickly and that his reflexes involving his 
 
         feet are not as good.  Claimant complained of having problems 
 
         performing extended sitting.  Claimant stated that if he looks 
 
         down, he loses control of his legs and that the loss occurs 
 
         sooner now than it did in 1985 prior to the time his case was 
 
         settled. Claimant testified that, over the last couple of years, 
 
         his condition is no better and in fact, in his opinion, it has 
 
         worsened a little bit.  Claimant stated that, in the last couple 
 
         of years, he has experienced the onset of tingling in his arms 
 
         which occurs for an hour or two following work.  Claimant 
 
         testified that his major current problems are that he experiences 
 
         tingling and falling asleep of his arms and hands if he exceeds 
 
         the weight limit recommended by his physician and that he has 
 
         difficulty with his legs and with walking.
 
         
 
              Dr. LaMorgese issued a report dated April. 28, 1983, which 
 
         report was used by the parties when entering into the agreement 
 
         for settlement with partial commutation in 1985.  In pertinent 
 
         party, the report states:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              You asked me for a permanent partial disability rating on 
 
              Mr. Harold Harding.  I feel that we are very lucky to have 
 
              Mr. Harding go back to work.  I feel that if he had insisted 
 
              in the past that he could not function with the degree of 
 
              myelopathy that he presently has I would have been forced to 
 
              give him 100 per cent disability because in fact he really 
 
              does have a severe myelopathy with gait disturbance.  I feel 
 
              it is a tribute to this patient that he continues to work 
 
              and is willing to prevail despite his disability.  I feel 
 
              that Mr. Harding has a permanent disability and will not get 
 
              better with anymore [sic] time or healing.  I do feel there 
 
              is a potential for gradual worsening over time but this is 
 
              very unpredictable.  I would have to give him a permanent 
 
              partial disability rating now of 50 per cent.  It could be 
 
              that this rating would have to be increased in the future if 
 
              the patient were to develop increasing symptoms [sic] 
 
              related to his work.  I still feel that despite these 
 
              ominous thoughts that we should try to continue to keep Mr. 
 
              Harding productive as long as possible.  Again I feel we are 
 
              very lucky to have a motivated patient who is willing to put 
 
              up with daily discomfort and disability in order to work.
 
         
 
              Claimant has continued to consult with and be treated by Dr. 
 
         LaMorgese (exhibit 1, pages 1-7).  The records show that claimant 
 
         has continued to have symptoms and an increase in some of his 
 
         symptoms.
 
         
 
              In a report dated May 20, 1988, however, Dr. LaMorgese 
 
         stated:
 
         
 
              ...Mr. Harold Harding continues to have significant cervical 
 
              myelopathy secondary to his herniated disk at C5,6 from a 
 
              work related injury.  I still feel that Mr. Harding's 
 
              permanent, partial disability rating is 50 per cent as a 
 
              body as a whole.  Mr. Harding has had some increased 
 
              fatigue, I believe, in the last few years with his work at 
 
              Farmstead Foods.  I do not find any changes in his 
 
              neurologic exam since his last two surgeries.
 
         
 
              On October 3, 1988, Dr. LaMorgese authored his most recent 
 
         report which states:
 
         
 
              Mr. Harding over the last three years has had some mild 
 
              progression of his myelopathy.  I feel that the progression 
 
              has been there because Mr. Harding has had some mild 
 
              increase gait difficulty with increased balance problems and 
 
              he has also had increasing fatigue at the end of a work day.  
 
              I have felt that the patient still has been able to carry on 
 
              hi.s work related activities despite this mild progression.  
 
              The patient recently has had some increased symptoms with an 
 
              episode on September 27th where he was sitting down in a 
 
              contour chair and could not get up for an [sic] half an hour 
 
              to an hour.  The patient last evening also had some 
 
              increased spasms in his lower extremities.  I am not sure if 
 
              these two recent episodes are indicating a more progressive 
 
              problem. Certainly Mr. Harding will continue to inform me of 
 
              any further difficulty if it occurs [sic].  I feel that the 
 
              symptoms that Mr. Harding has experienced is [sic] related 
 
              to his original cervical injury and the resultant myelopathy 
 
              as noted above.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Philip McCurdy, one of claimant's coworkers, confirmed that 
 
         claimant has difficulty performing some activities at work.  He 
 
         characterized claimant as a good, skilled, knowledgeable 
 
         millwright.  McCurdy had worked with claimant as a two-man team 
 
         for approximately nine years until shortly prior to the date of 
 
         hearing.
 
         
 
              Michael Huston, claimant's immediate supervisor at the time 
 
         of hearing, agreed that claimant is a good, knowledgeable worker. 
 
         Huston was aware that claimant has limitations regarding the use 
 
         of his arms, but was not aware of any other limitations.  Huston 
 
         stated that millwrights generally work in pairs and that claimant 
 
         can normally have assistance whenever it is needed.  Huston 
 
         stated that claimant's condition appears to be about the same as 
 
         it had been in 1986.  Huston stated that he was not aware of any 
 
         time since 1981 when claimant did not wear a cervical collar.
 
         
 
              Patricia Aten, Director of Occupational Health Nursing, 
 
         stated that claimant has continued to seek assistance and that in 
 
         1986, he reported having increased discomfort.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              A party seeking to review-reopen an award or agreement for 
 
         settlement must demonstrate by a preponderance of the evidence 
 
         that there has been a change of condition subsequent to that 
 
         award or agreement for settlement and that the change was 
 
         proximately caused by the original injury.  Stice v. Consolidated 
 
         Ind. Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452 (1940).  A mere 
 
         difference of opinion among experts or other observers as to the 
 
         percentage of disability is not sufficient to justify 
 
         review-reopening. Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 
 
         N.W.2d 109 (1957). The real. key to determining whether 
 
         review-reopening should occur is whether there has been any 
 
         substantial change in circumstances or condition from what was 
 
         anticipated at the time of the original award or agreement for 
 
         settlement.  Gosek v. Garmer & Stiles Co., 158 N.W.2d 731, 735 
 
         (Iowa 1968); Meyers v. Holiday Inn of Cedar Falls, Iowa, Iowa 
 
         App. 272 N.W.2d 24, 25 (1978).
 
         
 
              Claimant's appearance and demeanor were observed when he 
 
         testified at hearing.  Claimant appeared to be quite frank and 
 
         honest in his description of his symptoms and complaints. 
 
         Claimant's testimony is not in significant conflict with the 
 
         evidence in the record which was generated by medical 
 
         professionals.
 
         
 
              The 1983 report from Dr. LaMorgese indicated that a 
 
         potential for gradual worsening of claimant's condition existed, 
 
         but that it was very unpredictable.  He assigned a 50 percent 
 
         disability rating.  In 1988, Dr. LaMorgese confirmed that same 
 
         disability rating.  He stated that claimant had some mild 
 
         progression of his condition and increased fatigue.  In the 
 
         October 3, 1988 report, he also stated that he was uncertain 
 
         whether two recent episodes indicated a more progressive problem.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's injury and surgery occurred in 1981.  The 
 
         agreement for settlement was entered into in 1985.  A close 
 
         review of all the records from Dr. LaMorgese shows that 
 
         claimant's condition has been essentially stable since well prior 
 
         to the time of the settlement.  There may have been some 
 
         increased symptoms, but mild changes in symptomatology are not 
 
         unexpected.  Claimant has undergone further testing which failed 
 
         to show any deterioration in the condition of his cervical spine.  
 
         More importantly, the restrictions imposed by claimant's 
 
         physicians have not changed and claimant has been able to remain 
 
         gainfully employed in the same type of work as he performed prior 
 
         to the 1981 injury and at the time of the settlement in 1985.  
 
         While there likely has been some progression of claimant's 
 
         symptomatology and conditions, the change is not of such a 
 
         magnitude as to have been something which was unexpected or which 
 
         substantially affected claimant's earning capacity.  It is 
 
         therefore determined that claimant has failed to prove that there 
 
         has been a substantial change in condition or circumstances that 
 
         has occurred since the time of the 1985 settlement which would 
 
         warrant review-reopening of this case.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant has experienced some mild progression of the 
 
         symptoms from his cervical injury since entering into an 
 
         agreement for settlement in 1985.
 
         
 
              2.  The degree or magnitude of the progression is within the 
 
         bounds of what would normally be expected for a person who 
 
         sustained an injury of the type sustained by Harold Harding.
 
         
 
              3.  Claimant's overall earning capacity has not been 
 
         materially altered as a result of the progression of claimant's 
 
         condition and symptoms.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant has failed to prover by a preponderance of the 
 
         evidence, that there has been a material change in his condition 
 
         or economic circumstances, that was proximately caused by the 
 
         original injury, that has occurred since the agreement for 
 
         settlement was entered into in this case in August, 1985.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against claimant.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Signed and filed this 6th day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas B. Read
 
         Attorney at Law
 
         1710 I.E. Tower
 
         Cedar Rapids, Iowa  52401
 
         
 
         Mr. John M. Bickel.
 
         Attorney at Law
 
         500 MNB Building
 
         P.O.Box 2107
 
         Cedar Rapids, Iowa  52406
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            52905
 
                                            Filed June 6, 1989
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HAROLD HARDING,
 
         
 
              Claimant,                           File No. 666376
 
         
 
         vs.                                       R E V I E W -
 
         
 
         WILSON FOODS CORP.,                     R E 0 P E N I N G
 
         
 
              Employer,                           D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         52905
 
         
 
              Claimant's complaints of increased symptoms were, by 
 
         themselves, insufficient to warrant review-reopening where the 
 
         medical restrictions, disability rating and employment situation 
 
         were unchanged.  The change in symptoms was found to be within 
 
         the range of what normally occurs for an individual afflicted 
 
         with the type of injury which claimant had sustained.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         ALVA EUGENE VAN ALST,
 
         
 
               Claimant,
 
         
 
         VS.
 
         
 
         SKOGMAN CONSTRUCTION CO.,
 
                                                 File No. 666687 
 
               Employer,
 
                                                   A P P E A L
 
         and
 
                                                 D E C I S I 0 N
 
         GENERAL CASUALTY COMPANY
 
         OF WISCONSIN,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision which 
 
         denied all compensation and additional medical benefits because 
 
         claimant failed to establish a causal connection between his 
 
         alleged work injuries and any permanent disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening proceeding; claimant's exhibits 1 through 4; and 
 
         defendants' exhibit A.  Both parties filed briefs on appeal.
 
         
 
                                   ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
                   1.  The Deputy Industrial Commissioner erred in 
 
              his determination that the Claimant failed to establish 
 
              that the 1980 work injuries were the cause of permanent 
 
              partial impairment to the body as a whole.
 
         
 
                   2.  The Deputy Industrial Commissioner erred in 
 
              failing to award the Claimant the medical benefits.
 
         
 
                   3.  The Deputy Industrial Commissioner erred in 
 
              failing to award the Claimant industrial disability.
 
         
 
         
 
         
 
         
 
         
 
                          REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be reiterated 
 
         herein.
 
         
 

 
              Briefly stated, claimant sustained injuries affecting his 
 
         low back and neck in September and October of 1980 while working 
 
         for defendant-Skogman Construction Co. Claimant had low back and 
 
         musculoskeletal pain problems for several years prior to the 
 
         September and October 1980 injuries.  Claimant currently 
 
         experiences difficulty lifting and doing overhead work.  Claimant 
 
         states that he has severe pain after engaging in these 
 
         activities.
 
         
 
              Donald L. Berns, D.C., claimant's primary treating physician 
 
         for the 1980 injuries, opined that claimant has a ten to fifteen 
 
         percent permanent partial impairment to the body as a whole as a 
 
         result of the 1980 work injuries.  However, he admits that he was 
 
         unaware that claimant has been hospitalized on prior occasions 
 
         for back problems.
 
         
 
              Claimant has also been examined by John S. Koch, M.D., and 
 
         John R. Walker, M.D. Dr. Walker opines that claimant has a ten 
 
         percent permanent partial impairment to the body as a whole but 
 
         does not indicate whether this impairment is causally related to 
 
         the 1980 injuries.  Dr. Koch agrees with Dr. Walker's impairment 
 
         rating, but specifically states that this impairment is not 
 
         related to the 1980 injuries.
 
         
 
                                 APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                  ANALYSIS
 
         
 
              Claimant has failed to establish by a preponderance of the 
 
         evidence presented that the injuries of September and October of 
 
         1980 are causally related to any disability he may have.  The 
 
         testimony of Dr. Koch is given the greater weight because his 
 
         history was more accurate and he had the benefit of seeing 
 
         claimant over the greatest period of time.  Dr. Koch's reports 
 
         contain the the following:
 
         
 
              10-19-83
 
         
 
                   The patient has had multiple hospitalizations for 
 
              musculoskeletal disorders.  As early as 1961 at St. Luke's 
 
              Hospital he was under treatment by myself, in 1964 and and 
 
              [sic] 1965 for back and pain difficulty.  He was under the 
 
              treatment of Dr. Reque and Dr. Lake for musculoskeletal 
 
              disorders ....
 
         
 
                   As identified with my visit on the 29th of July, 1982 
 
              this man had a difficulty which would not respond to drug, 
 
              surgical or physical modalities.  I did not find a physical 
 
              basis for this man's difficulty.  I did not identify a 
 
              physical condition to be the primary basis for this man's 
 
              difficulty.
 
         
 
                   This man's record speaks for itself showing that 
 
              directing treatment toward physical condition has not been 
 
              curative.  Today I find no physical condition to account for 
 
              his difficulty.  I do not relate an on the job injury as the 
 
              cause of this man's present recurring difficulties.  By his 
 
              very nature he requires repeated reassurance and support to 
 
              continue in functioning in his psychologic and physical 
 
              world and his situation is not caused by an on the job 
 
              injury.
 

 
         
 
         
 
         
 
         VAN ALST V. SKOGMAN CONSTRUCTION CO.
 
         Page   3
 
         
 
         
 
         
 
              01-10-85
 
                   This man does have an impairment or disability with his 
 
              persistent pain.  I would rate him as being 10% disabled.  
 
              However, I do not relate this to the lifting episode which 
 
              was initially complained of in 1980.  I would anticipate 
 
              this man to continue to complain through his working years.   
 
              He is functioning perhaps at the best level possible for him 
 
              at this state.  Symptomatic treatment which is being 
 
              supplied to him is now the most effective means for him in 
 
              this situation.
 
         
 
              Claimant's memory or veracity becomes suspect when looking 
 
         at the testimony of Dr. Berns and the answers to interrogatories 
 
         in comparison to the reports of Dr. Koch.
 
         
 
              Claimant has also failed to establish entitlement to 
 
         additional medical benefits.  The analysis set out in the 
 
         review-reopening decision on these issues is accurate and adopted 
 
         herein.
 
         
 
              As no causal connection is found between claimant's injuries 
 
         and any disability he may have, it is unnecessary to analyze the 
 
         extent of any industrial disability claimant may have.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  Claimant's job in September and October 1980 consisted 
 
         of construction labor at Skogman.
 
         
 
              2.  On September 30, 1980 claimant injured his low back and 
 
         on October 13, 1980 claimant injured his low back and neck while 
 
         performing his work at Skogman.
 
         
 
              3.  Prior to the work injuries in 1980 claimant had low back 
 
         problems and other musculoskeletal pain of unknown origin for 
 
         which he received treatment including two or three 
 
         hospitalizations.
 
              4.  At the present time claimant has a significant permanent 
 
         partial impairment to his body as a whole with his low, mid-back, 
 
         and neck which limits claimant's ability to lift, bend, and 
 
         perform overhead work as a result of physical problems unrelated 
 
         to his work injuries.
 
         
 
              5.  Claimant has no permanent impairment as a result of his 
 
         injuries of September 30, 1980 or October 13, 1980.
 
         
 
              6.  Pursuant to the stipulation of the parties, claimant was 
 
         temporarily disabled as a result of the 1980 work injuries from 
 
         October 16, 1980 through October 28, 1980.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence that the injury of September 30, 1980 or the injury of 
 
         October 13, 1980 is a cause of permanent disability.
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence entitlement to additional medical benefits under Iowa 
 

 
         
 
         
 
         
 
         VAN ALST V. SKOGMAN CONSTRUCTION CO.
 
         Page   4
 
         
 
         
 
         Code section 85.27 as a result of the medical services he has 
 
         received from Donald L. Berns, D.C., since May 1982.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant shall take nothing from these proceedings.
 
         
 
              That defendants shall pay the costs of the review-reopening 
 
         proceeding and claimant shall pay the costs of the appeal 
 
         including the transcription of the hearing proceedings.
 
         
 
         
 
              Signed and filed this 11th day of June, 1987.
 
         
 
         
 
         
 
                                            DAVID E LINQUIST
 
                                            ACTING INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4040 First Avenue NE
 
         P.O. i3ox 998
 
         Cedar Rapids, Iowa 52405-0998
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB Building
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.5-1402-1803
 
                                                 Filed June 11, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         ALVA EUGENE VAN ALST,
 
         
 
             Claimant,
 
         
 
         VS.
 
         
 
         SKOGMAN CONSTRUCTION CO.,
 
                                                 File No. 666687
 
             Employer,
 
                                                   A P P E A L
 
         and
 
                                                 D E C I S I 0 N
 
         GENERAL CASUALTY COMPANY
 
         OF WISCONSIN,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         _________________________________________________________________
 
          
 
         
 
         
 
         1108.5 - 1402 - 1803
 
         
 
              Claimant sustained injuries affecting his low back and neck 
 
         in September and October of 1980 while working for 
 
         defendant-employer.  Claimant had low back and musculoskeletal 
 
         pain problems for several years prior to the 1980 injuries.
 
         
 
              Claimant's primary treating physician for the 1980 injuries 
 
         opined that claimant has a ten to fifteen percent permanent 
 
         partial disability to the body as a whole as a result of the 1980 
 
         work injuries.  However, he admitted that he was unaware that 
 
         claimant had been hospitalized on prior occasions for back 
 
         problems.
 
         
 
              Claimant had also been examined by John S. Koch, M.D., and 
 
         John R. Walker, M.D. Dr. Walker opined that claimant has a ten 
 
         percent permanent partial impairment to the body as a whole but 
 
         did not indicate whether this impairment was causally related to 
 
         the 1980 injuries.  Dr. Koch agreed with Dr. Walker's impairment 
 
         rating, but specifically stated that this impairment was not 
 
         related to the 1980 injuries.
 
         
 
              Claimant failed to establish by a preponderance of the 
 
         evidence presented that the injuries of September and October of 
 
         1980 were causally related to any disability he may have.  The 
 
         testimony of Dr. Koch is given the greater weight because his 
 
                                                
 
                                                         
 
         history was more accurate and he had the benefit of seeing 
 
         claimant over the greatest period of time.