BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
              
 
         
 
         
 
         DONALD DISBROW,
 
         
 
              Claimant,
 
                                                   File No. 686144
 
         vs.
 
         
 
         DONALDSON CONSTRUCTION,                A R B I T R A T I O N
 
         
 
              Employer,                            D E C I S I O N
 
         
 
         and                                          F I L E D
 
         
 
         HOME INSURANCE COMPANY,                     JUN 16 1989
 
         
 
              Insurance Carrier,            IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Donald Disbrow, 
 
         claimant, against Donaldson Construction, employer, and Home 
 
         Insurance Company, insurance carrier, defendants.  This case was 
 
         heard by the undersigned on October 25, 1988, in Des Moines, 
 
         Iowa.
 
         
 
              The record consists of the testimony of claimant, and the 
 
         testimony of his wife, Jacqueline Disbrow.  The record 
 
         additionally consists of the testimony of Marian S. Jacobs, a 
 
         vocational rehabilitation specialist, and the testimony of 
 
         Rosalie Sandahl, a rehabilitation supervisor.  The record is also 
 
         comprised of joint exhibits 1-21.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on October 25, 1988, the issues presented by the parties 
 
         are:
 
         
 
              1.  Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              2.  Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits; and
 
         
 
              3.  Whether claimant is an odd-lot doctrine employee.
 
         
 
                                   STIPULATIONS
 
                                                
 
                                                         
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury;
 
         
 
              2.  That the claimant sustained an injury on October 26, 
 
         1981 which arose out of and in the course of employment with 
 
         employer;
 
         
 
              3.  That the alleged injury is a cause of temporary 
 
         disability during a period of recovery and that the work injury 
 
         is a cause of permanent disability;
 
         
 
              4.  That the extent of entitlement to weekly compensation 
 
         for temporary total disability or healing period, if defendants 
 
         are liable for the injury, is stipulated to be from October 27, 
 
         1981 to May 10, 1984;
 
         
 
              5. That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         an industrial disability to the body as a whole, and the 
 
         commencement date for permanent partial disability, in the event 
 
         such benefits are awarded, is stipulated to be May 11, 1984;
 
         
 
              6.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $241.93 per week;
 
         
 
              7.  Claimant's entitlement to medical benefits under Iowa 
 
         Code section 85.27 will result in all requested benefits having 
 
         been or will be paid by defendants; and
 
         
 
              8.  Defendants paid claimant 132 weeks of temporary total 
 
         disability benefits and 231 weeks of permanent partial disability 
 
         benefits.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant was struck on the right side of his head with a 
 
         backhoe bucket on October 26, 1981.  Claimant was unconscious for 
 
         a period of time.  He also suffered from amnesia, postinjury.  
 
         The amnesia apparently lasted for only several days.  However, 
 
         claimant developed other symptoms.  He became dizzy and lost his 
 
         balance.  Claimant reported problems with his vision, and with 
 
         his eye-hand coordination.  Claimant was also experiencing a loss 
 
         of memory.  After the onset of these symptoms, claimant developed 
 
         depression like symptoms.
 
         
 
         
 
              Claimant was prone to fits of anger, loss of temper and 
 
         crying spells.  He also became lethargic.  He lost interest in 
 
         his hobbies and in making social contacts.
 
         
 
              As a result of the symptoms, claimant was admitted to the 
 
                                                
 
                                                         
 
         Iowa Methodist Medical Center Head Trauma Program.  A 
 
         multidiscipline approach was used where claimant was provided 
 
         psychological counseling, occupational therapy, and speech 
 
         pathology.  Claimant's program was coordinated with the services 
 
         provided by North Central Rehabilitation Services.
 
         
 
              North Central Rehabilitation Services was retained by 
 
         defendants to assist claimant with vocational rehabilitation. 
 
         North Central attempted to locate employment possibilities for 
 
         claimant.
 
         
 
              Claimant was seen by a variety of specialists concerning his 
 
         injury.  Those specialists included a psychiatrist, an M.D. 
 
         specializing in physical medicine and rehabilitation, a clinical 
 
         neuropsychologist, neurosurgeons, a neurologist, an orthopedic 
 
         specialist, an opthamalogist, and a head and neck specialist.
 
         
 
              Stuart R. Winston, a neurosurgeon, wrote of claimant in his 
 
         report of May 6, 1982:
 
         
 
                 We saw him again on the 21st of April 1982 and his 
 
              computerized scan of the brain is normal except for the 
 
              post-contusional changes noted in the right parietooccipital 
 
              region as well.  The patient continues to have some 
 
              headaches and continues with his visual fields unchanged.
 
         
 
         (Joint Exhibit 4, page 1)
 
         
 
              As of July 23, 1983, Dr. Winston determined the following 
 
         relative to claimant's condition:
 
         
 
                 It is impossible for me to say how much Dr. Disbrow is 
 
              disabled on the terms of his psyche but on the basis of his 
 
              loss of vision I would imagine that he is impaired to a 
 
              permanent partial disability of at least 60% and we think 
 
              that Dr. Plummer could perhaps give you a better 
 
              indication.
 
         
 
                 I trust that vocational rehabilitation has come up with 
 
              some ideas for the man but certainly with his visual loss 
 
              secondary to this work-related incident his ability to work 
 
              in his former capacity would be, of course, quite difficult. 
 
              He still also suffers from dizziness and postural 
 
              hypotension perhaps due to the medication used for treating 
 
              his anxiety.
 
         
 
         (Jt. Ex. 4, p. 4)
 
         
 
              Then, in his report of April 25, 1984, Dr. Winston opined:
 
         
 
                 The permanent partial disability rating that we gave Mr. 
 
              Disbrow, as I indicated in my letter of July 23, 1983, was 
 
              60% and I did mean this regarded the body as a whole and I 
 
              would suspect that there is the possibility for additional 
 
              psychological impairment.
 
                                                
 
                                                         
 
         
 
                 I do not believe that Mr. Disbrow's condition will 
 
              deteriorate and that he has reached a plateau with respect 
 
              to his neurological status which is a fixed one.
 
         
 
         (Jt. Ex. 4, p. 9)
 
         
 
              Thomas A. Carlstrom, M.D., another neurological surgeon, 
 
         examined claimant on April 24, 1984.  He opined the following in 
 
         his report of May 3, 1984:
 
         
 
                 On exam, I saw no abnormalities to general exam. 
 
              Neurologic exam I thought was normal, including his 
 
              intellectual performance, except for the presence of a 
 
              difficult to reproduce incongruous left homonymous 
 
              hemianopia.
 
         
 
                 I reviewed the old CT scans and obtained a new one.  I 
 
              believe there has been no change in these scans, and my 
 
              interpretation is that this original abnormality present in 
 
              November of 1982 is probably the result of a healing stroke 
 
              and has nothing to do with the head injury.
 
         
 
                 As the patient dates the onset of his symptoms back the 
 
              head injury, I would necessarily relate this as a workman's 
 
     
 
                                
 
                                                
 
                                                         
 
              [sic] comp matter, and do believe he has suffered a 
 
              permanent partial impairment.  This would be fairly small, I 
 
              believe, in the 4-6% range of the body as a whole.  Because 
 
              of my own question regarding the severity, and in fact even 
 
              the presence of a left homonymous hemianopia, arranged for 
 
              him to see a neuro ophyhalmologist in Iowa City, Doctor Stan 
 
              Thompson which he will do in June of 1984.  Perhaps a better 
 
              percentage rating could be calculated after that visit.
 
         
 
         (Jt. Ex. 6, p. 1)
 
         
 
              David L. Friedgood, D.O., a neurologist, also examined 
 
         claimant.  Dr. Friedgood opined in his report dated November 25, 
 
         1985:
 
         
 
         
 
                 I am writing in response to your request for a disability 
 
              rating on Mr. Disbrow.  As we have discussed on the phone, 
 
              Mr. Disbrow has a very minimal neurologic deficit which 
 
              should cause him very slight disability.  His deficit 
 
              consists of a slight loss of vision in the lower portion of 
 
              his visual field on the left.  This visual field loss was 
 
              documented by Dr. Plummer and Dr. Corbett in Iowa City.  Mr. 
 
              Disbrow should have approximately a five percent disability 
 
              for this minimal visual field loss.  Mr. Disbrow also has 
 
              what we would call a post-concussion syndrome.  This 
 
              post-concussion syndrome is manifest by problems with his 
 
              memory and a depression.  Since the symptoms have persisted 
 
              since Mr. Disbrow's accident in 1981, it is likely that he 
 
              will continue to have problems like this for some time.  It 
 
              is very difficult for me to assign a disability rating based 
 
              on these types of subjective complaints.  Mr. Disbrow claims 
 
              that these are the problems that keep him from being able to 
 
              work and function normally.  If I can answer any further 
 
              questions concerning Mr. Disbrow, please don't hesitate to 
 
              contact me.
 
         
 
         (Jt. Ex. 5)
 
         
 
              Claimant was also examined by Eugene Peterson, M.D., a head, 
 
         ear, eye and neck specialist.  Dr. Peterson opined the following 
 
         in his letter of November 10, 1981:
 
         
 
                 The physical was pertinent for the presence of healing 
 
              lacerations above the right ear and within the right ear. 
 
              The area of avulsion appeared to be healing very nicely. 
 
              Surprisingly, an audiogram was almost completely normal.  
 
              His discrimination was excellent.
 
         
 
                 I obtained the results of the CT scan which you had 
 
              ordered.  There were areas of apparent ischemia posterior 
 
              laterally on the right of the brain.  Consequently, I would 
 
              assume that the symptoms are due to central problems 
 
              secondary to the trauma rather than to the damage of the 
 
              peripheral labyrinthine system.
 
                                                
 
                                                         
 
         
 
         (Jt. Ex. 14, p. 2)
 
         
 
              A.  Suzanne Morstad, M.D., is a physical medicine and 
 
         rehabilitation specialist.  She evaluated claimant through the 
 
         Younker Memorial Rehabilitation Center on several occasions in 
 
         1982.
 
         
 
              In her report of September 9, 1982, Dr. Morstad indicated:
 
         
 
         
 
              MEDICAL:  Patient has not been seen since last conference.
 
         
 
              OCCUPATIONAL THERAPY:  The patient has been seen for 
 
              cognition and perception with a later possibility of 
 
              driver's eval.  The patient is still seen at a level 8.  
 
              When he becomes very anxious, which is at least on one 
 
              occasion during the week, her [sic] performs about at a 
 
              level 7 in his orientation and recall.  Generally, if he is 
 
              not anxious, he does very well in all of his activities.  He 
 
              is making progress in his general comprehension for reading 
 
              material. He can work for almost the full hour unattended if 
 
              he was given enough work to do.  He plans out his day fairly 
 
              well. He does homework assignments and completes these on 
 
              time.  He has been given some things to do independently at 
 
              home, such as take a walk and go to the store.  The patient 
 
              is carrying through with these and states that it is getting 
 
              easier as he does more.  In functional math skills, he was 
 
              demonstrating mild impairment and now seems to be about 
 
              within normal limits for them.  He is performing better on 
 
              any kind of sequencing tasks.  For perceptual activity, a 
 
              re-test was done, and he is still minimally impaired.  The 
 
              anxiety does interfere and occasionally there will be a left 
 
              neglect, although at times there has also been a slight 
 
              right neglect noted due to the tunnel vision.  He has 
 
              increased his awareness of ways to compensate on his own for 
 
              perceptual problems, but the therapist must initiate this 
 
              for him.  He is still having difficulty picking out details 
 
              of any kind of reading information, and he is having 
 
              problems with making analogies of things or picking out 
 
              something that is more abstract.  The patient also is still 
 
              visually having enough difficulty that it makes him scared 
 
              to go out on his own.
 
         
 
              SPEECH:  The patient has been seen primarily for reading and 
 
              retention of the reading material.  He has recently 
 
              progressed to a moderately difficult adventure of several 
 
              chapters being assigned to him at one time.  The clinician 
 
              particularly stressed that he not over-read.  He can retain 
 
              the information if he reads rather informally.  He retains 
 
              detail well, but the anxiety is the major intereference 
 
              [sic] noted.  It interferes with his completion of homework 
 
              activities and even with attendance of therapy.  He appears 
 
              to have extremely low self esteem and predicts failure for 
 
              himself.  The clinician asked him to make note of something 
 
                                                
 
                                                         
 
                   that he had accomplished every day that was similar to his 
 
              premorbid level and write it down in his notebook.
 
         
 
              PSYCHOLOGY.  The patient has been seen since 08-17-82 once 
 
              weekly.  He is being seen for biofeedback assistance and 
 
              stress management and therapy.  Personality testing data 
 
              gathered during his hospitalization indicates that the 
 
              patient experiences a high level of tension and stress.This 
 
              is a chronic longstanding personality pattern, not 
 
              predominantly reactive, although he can be expected to react 
 
              very negatively to situational stresses.as well.  Tests also 
 
              indicate a predisposal towards physical symptomatology as a 
 
              reaction to this high stress and tension level with an 
 
              overconcern of bodily complaints.  The profile the patient 
 
              attained is also often associated with quite a dependent 
 
              person who demands continual medical care.  This kind of 
 
              behavior pattern can be quite resistant to change.  There 
 
              has been minimal progress within any training session, 
 
              although the patient does demonstrate what is vestiges of 
 
              previous training, utilizing biofeedback that he had in the 
 
              past.  He was seen prior to this hospitalization at Mercy 
 
              Hospital twice weekly for a period of approximately four 
 
              months.  He was seen for about 30 biofeedback sessions.  In 
 
              spite of this extensive prior training, the psychologist is 
 
              seeing little carry over at this point of skills learned 
 
              during that time, although the patient's report is that he 
 
              did benefit from that training and felt he learned the 
 
              procedures involved pretty well.  The psychologist will 
 
              continue seeing the patient and will now see him twice 
 
              weekly.
 
         
 
              RECOMMENDATIONS:  1.) Continue present program.  2.) Contact 
 
              Voc Rehab.
 
         
 
         (Jt. Ex. 9, pp. 4-5)
 
         
 
              Later, Dr. Morstad determined as of November 11, 1982:
 
         
 
              REHABILITATION NOTE:
 
         
 
              The patient has been under Elavil since the last evaluation.  
 
              He feels that it helps with sleeping but that he gets upset 
 
              just as easily.  He still has intermittent headaches; these 
 
              are usually associated with stress.  He has been trying some 
 
              additional activities around the house.  For example, he 
 
              tried to put up some plastic storm windows a week ago, but 
 
              he had trouble hitting the nails.  He also tried getting on 
 
              a ladder, but this felt unstable.  He has not had any falls, 
 
              however.  He has not seen anyone from either rehab or 
 
              worksmen's [sic] comp.  He does have an appointment with the 
 
              rehab nurse next week.  He is still on worksmen's [sic] 
 
              comp.  He is not having any side effects from the Elavil, 
 
              and his wife feels that his temper and depression are a 
 
              little better.  He is generally quieter. He has remained 
 
              somewhat active.  He likes to go walking alone. He also 
 
                                                
 
                                                         
 
                   visits with friends.  He does not read much and has not been 
 
              practicing on his reading or visual tracking.  He feels like 
 
              he is making gains with the work with the psychologist.  He 
 
              is also applying for Social Security Disability under the 
 
              recommendation of his lawyer.  At present, his only other 
 
              medication is Tylenol No. 3 which he takes for headache when 
 
              it becomes severe.  On days which he has headaches, he will 
 
              take four to six a day, but takes this only two to three 
 
              days out of each week.
 
         
 
                 On physical exam today, Mr. Disbrow is again alert and 
 
              oriented.  His speech is fluent.  Cranial nerves:  Pupils 
 
              are equal and reactive to light.  Extraocular motions are 
 
              full. On visual field testing, peripheral vision again 
 
              appears to be decreased bilaterally, somewhat more on the 
 
              left than on the right.  Examination of tongue, face, and 
 
              uvula muscles was normal.  Again, on muscle testing, 
 
              strength was normal and symmetrical.  He was able to do 
 
              finger-to-nose and heel-to-knee alternate motion rates 
 
              normally.  He has a normal gait pattern, but he had slight 
 
              difficulty in tandem walking, hopping, and standing on 
 
              either leg, more than which would expect for his age.
 
         
 
                 Impression:  Previous closed head injury with residual 
 
              cognitive and perceptual deficits.  2) Chronic anxiety and 
 
              depression:  3) Some response to Elavil.
 
         
 
              Recommendations:
 
         
 
              1.  Continue work with psychologist.
 
         
 
              2.  Increase Elavil to 150 mg. a day.
 
         
 
 
 
 
 
                                
 
                                                
 
                                                         
 
              3.  Recheck in December.
 
         
 
         (Jt. Ex. 9, p. 10)
 
         
 
              Raymond W. Horn, Ph.D., is a clinical neuropsychologist.  He 
 
         evaluated claimant on several occasions.  Dr. Horn wrote in his 
 
         report subsequent to his evaluation on May 5, 6, 7, 1986:
 
         
 
              TEST RESULTS:
 
         
 
                 Since his last neuropsychological evaluation in early 
 
              1983 Mr. Disbrow has shown some very mild improvement in 
 
              particular cognitive functions but overall still shows 
 
              cognitive deficits secondary to injury to his brain.
 
         
 
                 Specifically, Mr. Disbrow's general intelligence continues 
 
              to score in the average range with a Full Scale IQ of 93, 
 
              Verbal IQ of 94 and Performance IQ of 93
 
         
 
                 Analysis of attention and concentration functions showed 
 
              that Mr. Disbrow was able to sustain directed attention for 
 
              a number of minutes on simple discrimination tasks.  
 
              However, his performance became slightly less efficient as 
 
              tasks became more complex and required keeping track of 
 
              multiple items of information at once.
 
         
 
                 Analysis of language related functions revealed no 
 
              deficits. Naming and repetition ability were intact.  
 
              Auditory comprehension was entirely normal and speech was 
 
              fluent and non-paraphasic.  Reading, writing, spelling, and 
 
              mathematics skills all scored in average ranges for Mr. 
 
              Disbrow's age and at levels consistent with his general 
 
              intelligence and educational background.
 
         
 
                 Analysis of visual/spatial functions did reveal deficits. 
 
              Analysis of visual fields showed a partial left lower 
 
              quadrant visual field defect and a tendency to suppress 
 
              visual information on the left side during conditions of 
 
              simultaneous stimulation.  Simple perceptual accuracy was 
 
              intact although Mr. Disbrow required unusually long periods 
 
              of time to make accurate visual perceptions.  He was able to 
 
              interpret meaningful visual information.  However, visual 
 
              scanning was mildly impaired in terms of speed and 
 
              efficiency.  Although simple motor functions were intact on 
 
              the right side of the body in terms of strength, fine motor 
 
              speed, and simple motor coordination, he was mildly slow and 
 
              inefficient on tasks which required visual/motor integration 
 
              and visual scanning. As these tasks became more complex and 
 
              required more accurate concentration his performance 
 
              deteriorated to the moderate to severely impaired range.
 
         
 
         
 
              Analysis of memory functions indicated that verbal memory 
 
              skills were intact and had improved rather substantially 
 
              since the last evaluation.  Mr. Disbrow was able to recall 
 
                                                
 
                                                         
 
                   average to above average amounts of information from 
 
              paragraphs read to him and could retain that information 
 
              well over a period of time.  His verbal learning ability was 
 
              mildly slow and inefficient compared with expectations for 
 
              his age and has not changed substantially since the last 
 
              evaluation.  On tests of visual memory moderate degrees of 
 
              difficulty were observed in terms of the accurate 
 
              registration and immediate reproduction of visual 
 
              information.  However,.Mr. Disbrow did tend to retain newly 
 
              learned visual information over time at normal levels.
 
         
 
                 Analysis of tactile functions did show improvement since 
 
              the last evaluation.  No lateralized suppressions were noted 
 
              under bilateral tactile stimulation and there was no 
 
              difficulty in finger recognition or in fingertip number 
 
              writing perception.  Stereognosis was normal bilaterally.
 
         
 
                 Problem solving abilities continued to be mildly to 
 
              moderately impaired.  Mr. Disbrow had some difficulty in 
 
              analyzing new problems and in maintaining his concentration 
 
              on them.  Although at times he could deduce principles 
 
              involved in new problems accurately, at other times he 
 
              became confused and perseverative and was unable to alter 
 
              his approach in a useful fashion.
 
         
 
                 Psychological evaluation did indicate generalized 
 
              improvement since Mr. Disbrow's last evaluation.  He is not 
 
              so acutely agitated or upset as he formerly was and he 
 
              appears to be more accepting of his cognitive and physical 
 
              problems.
 
         
 
                 However, Mr. Disbrow continues to experience considerable 
 
              internal tension and frustration because of his 
 
              disabilities. Since a great deal of his self-concept and 
 
              self-esteem were involved with his work in terms of driving 
 
              skills and physical abilities, the loss of this type of 
 
              employment has had rather substantial impact on his 
 
              self-esteem.  He maintains high standards for himself and is 
 
              acutely aware of discrepancy between his aspirations and his 
 
              current level of functioning.
 
         
 
                 Although Mr. Disbrow remains concerned about other people 
 
              and values at least his close relationships, he is more 
 
              self-focused, guarded, and prone toward episodes of anger 
 
              and frustration, particularly around questions of his own 
 
              adequacy.
 
         
 
              SUMMARY:
 
         
 
                 This fifty six year old man shows cognitive and 
 
              psychological effects of his 1981 head injury which continue 
 
              to disable him and which have caused a negative emotional 
 
              impact [sic] on his life.
 
         
 
                 Mr. Disbrow retains many intact abilities including his 
 
                                                
 
                                                         
 
                   general intelligence, his ability to concentrate and attend, 
 
              his ability to use language, his ability to remember what he 
 
              hears, and his ability to understand what he sees.  However, 
 
              he shows difficulties in spatial motor coordination and in 
 
              visual scanning and rapid visual analysis of unfamiliar 
 
              material.  In addition to his cognitive problems Mr. Disbrow 
 
              reports continuing pain and discomfort when he attempts to 
 
              walk or stand for long periods of time.  The headaches which 
 
              troubled him significantly when he was first evaluated by me 
 
              have now resolved.
 
         
 
                 Mr. Disbrow's accident has had significant impact on his 
 
              emotional state producing a moderate chronic depression. 
 
              Even though he remains cognitively intact in many areas, by 
 
              reducing his ability to engage in his former occupation he 
 
              has suffered significant losses in self-esteem.  In order to 
 
              keep the complexity of daily life in accord with his 
 
              cognitive limitations he has simplified his left which has 
 
              meant reducing many of his social and interpersonal 
 
              contacts. He is also more prone to periodic episodes of 
 
              anger although he generally controls these well.
 
         
 
              FUNCTIONAL IMPLICATIONS:
 
         
 
                 From a functional perspective Mr. Disbrow should be able 
 
              to handle routine daily situations but will experience 
 
              tension, agitation, and confusion when confronted with 
 
              novelty or change.  He has adjusted to these functional 
 
              limitations by simplifying his life activities and avoiding 
 
              novelty and stress whenever possible.
 
         
 
                 Mr. Disbrow is able to express himself verbally and is 
 
              able to follow verbal instructions.  He is able to read and 
 
              can adequately manage his own finances.
 
         
 
                 However, Mr. Disbrow will have difficulty and be error 
 
              prone in his manipulatory skills.  His visual field defect, 
 
              scanning problems, visual and motor coordination 
 
              difficulties, and spatial reasoning deficits will render him 
 
              inefficient and error prone in manual tasks.  He will have 
 
              difficulty in such things as repairing engines, working on 
 
              mechanical equipment, and driving.  Although Mr. Disbrow 
 
              might be able to drive safely in very simple and 
 
              uncomplicated driving situations, I feel he could be a 
 
              danger to himself and to others in an emergency situation or 
 
              on driving tasks which require precision and rapid accurate 
 
              response.
 
         
 
                 Learning new tasks and adjusting to novel situations will 
 
              be stressful and inefficient.
 
         
 
                 From a psychological perspective I think it is 
 
              unrealistic to expect significant further improvement in Mr. 
 
              Disbrow's reactive depression.  He will likely continue to 
 
              have chronic feelings of tension, both because of his direct 
 
                                                
 
                                                         
 
                   injury to the brain as well as because of the damage to his 
 
              self-esteem related to his inability to drive, use tools, 
 
              and engage in stressful physical activity.  Mr. Disbrow's 
 
              father was a truck driver and Don has always defined his own 
 
              self concept in terms of his ability to drive and engage in 
 
              mechanical and physical activities.  In a normal individual 
 
              such attitudinal patterns would be extremely resistant to 
 
              change.  In Mr. Disbrow's case, because of his brain injury 
 
              and subsequent difficulties with change and adaptation, the 
 
              likelihood a reformulation of his self concept is extremely 
 
              low.  Also, in order to reduce the instances of 
 
              interpersonal conflict and tension he will need to continue 
 
              restricted social interaction, further contributing to his 
 
              chronic problems with depression.
 
         
 
                 Thus, even though Mr. Disbrow retains many intact 
 
              cognitive skills, the particular nature of his cognitive 
 
              difficulties are more functionally and psychologically 
 
              debilitating than they might be in an individual i with a 
 
              different psychological and work history.
 
         
 
         (Jt. Ex. 3, pp. 2-12)
 
         
 
              Claimant was also seen by several eye specialists.  In 1981, 
 
         claimant was examined by Leo J. Plummer, M.D., an eye surgeon.  
 
         He opined in his report of December 21, 1981:
 
         
 
                 Thank you for referring Donald for evaluation of his 
 
              visual fields and clinical status of his eyes.  As you 
 
              recall, he had a head injury on October 25, 1981 which 
 
              caused him to have a contusion of the brain and clinically 
 
              he has been improving since that time.  His visual field 
 
              today as enclosed, reveals an incongruous left lower 
 
     
 
                                
 
                                
 
                                
 
                                                         
 
              quadrant homonymous field defect which would tend to 
 
              indicate an interruption in the optic pathways on the right 
 
              temporal perital area.  The rest of his exam is normal with 
 
              20/20 vision bilaterally, clear media and normal funduscopic 
 
              exam and normal intraocular pressures.  He does show a 
 
              slight mild chronic congestion of the eyes compatible with 
 
              outside employment.  With the clinical history of 
 
              improvement, I would anticipate that there might be some 
 
              further improvement of this visual field loss and 
 
              consequently have re-scheduled him for an additional field 
 
              testing in two months.
 
         
 
         (Jt. Ex. 12, p. 1)
 
         
 
              In 1982, Dr. Plummer wrote a follow-up report.  He 
 
         determined in his report of May 14, 1982:
 
         
 
                 This is in response to your letter of May 10, 1982 
 
              concerning Donald Disbrow.  As you recall, Donald Disbrow 
 
              was seen by me in consultation for Doctor Winston with a 
 
              visual field defect as a result of being struck on the head 
 
              while at work in October, 1981.
 
         
 
                 He has what I would consider at this time to be a 
 
              permanent visual field defect which is described. as an 
 
              incongruous left homonymous quadrant defect.  I calculate 
 
              his visual impairment at a total impairment of 9% of his 
 
              visual system.  He has no noted ocular defect other than the 
 
              visual field defect which I can see as a result of this 
 
              injury.  The 9% figure of course assumes that he had a 
 
              normal visual field prior to the injury which I cannot 
 
              document.
 
         
 
                 I hope this information is of benefit to you in your 
 
              calculation of his partial disability.
 
         
 
         (Jt. Ex. 12, p. 7)
 
         
 
              Two years later, Dr. Plummer again evaluated claimant.  He 
 
         opined in his report of November 26, 1984:
 
         
 
                 In summary, my opinion still holds as it did previously, 
 
              that he has a left inferior quadrant homonymous field defect 
 
              secondary to optic tract injury.  With the stability of this 
 
              visual field defect, I consider his problem to be permanent. 
 
              I see no evidence of malingering type of pattern on his 
 
              visual field at this time.
 
         
 
         (Jt. Ex. 12, p. 8)
 
         
 
              Claimant was also seen for his eye condition at the 
 
         University of Iowa Hospitals and Clinics.  James J. Corbett, 
 
         M.D., an associate professor, diagnosed claimant as follows in 
 
         his report dated July 23, 1984:
 
         
 
                                                
 
                                                         
 
                 Physical examination was entirely normal with evidence of 
 
              any neurologic deficit except for a mild left homonymous 
 
              hemianopia and hand comparisons.  His formal visual fields 
 
              were seriously constricted and appeared to be functionally 
 
              constricted.  I was able to enlarge his visual fields with 
 
              encouragement and I gave him reassurance.  Because he had 
 
              this serious head injury and because his complaints were not 
 
              the ordinary kind of complaints one sees with visual field 
 
              defects, I decided that we ought to see whether he had any 
 
              abnormality in contrast sensitivity.  He was tested for 
 
              contrast sensitivity using the Cadwell machine in each of 
 
              the four quadrants.  His left upper quadrant was the most 
 
              seriously effected of the four with all others appearing 
 
              essentially normal.  I think that Mr. Disbrow is suffering 
 
              from subtle neurologic dysfunction but nothing that should 
 
              interfere with his ordinary day to day getting around.  In 
 
              addition, some of his visual responses were functional with 
 
              constriction of visual fields and I gave him reassurance.
 
         
 
         (Jt. Ex. 13, p. 1)
 
         
 
              Claimant was also examined, evaluated and treated by Michael 
 
         Taylor, M.D., a psychiatrist.  Dr. Taylor saw claimant seventeen 
 
         times between February 1, 1983 and September 29, 1988.  Dr. 
 
         Taylor was retained by the insurance carrier to provide an 
 
         independent opinion.
 
         
 
              Dr. Taylor testified by way of deposition.  He indicated 
 
         that initially he had diagnosed claimant as having major 
 
         depressive disorder.  Dr. Taylor characterized the disorder with 
 
         symptoms of sleep disturbance, appetite disturbance, change in 
 
         ability to concentrate, change in level of interest, energy, 
 
         ability to make decisions, helplessness, hopelessness, 
 
         irritability, crying spells and thoughts of suicide.  In Dr. 
 
         Taylor's report of February 1, 1983, Dr. Taylor found that 
 
         claimant had:
 
         
 
              ...significant difficulty concentrating such that he is not 
 
              able to concentrate on even a simple newspaper or magazine 
 
              article.  His level of irritability remains significantly 
 
              increased.  He has frequent spontaneous crying spells.  He 
 
              is much more easily frustrated than used to be the case.  He 
 
              is much less comfortable in social situations than used to 
 
              be the case.  He denies current suicidal ideation.  Prior to 
 
              starting on the Elavil, he had significant sleep disturbance 
 
              but this has improved considerably on the Elavil.
 
         
 
         (Jt. Ex. 2, p. 1)
 
         
 
              Dr. Taylor testified he later re-evaluated his diagnosis.  
 
         The psychiatrist indicated he no longer believed claimant was 
 
         depressed solely because claimant was incapable of working.  Dr. 
 
         Taylor stated he believed brain damage could have been 
 
         contributing to claimant's difficulties.  As a consequence, Dr. 
 
         Taylor recommended another evaluation from Dr. Horn.
 
                                                
 
                                                         
 
         
 
              Dr. Taylor, in his deposition, opined to a reasonable degree 
 
         of medical certainty that claimant had a psychiatric illness as a 
 
         result of his work-related injury.  Dr. Taylor determined 
 
         claimant suffered from organic affective syndrome and organic 
 
         personality syndrome.  Dr. Taylor determined the change in 
 
         diagnosis involved:
 
         
 
                 Basically all we are saying here is that Mr. Disbrow has 
 
              the symptoms of depression, which I initially labeled as 
 
              major depressive disorder, but because of the ongoing 
 
              evidence and psychological testing of the brain damage, we 
 
              can no longer make the diagnosis of major depressive 
 
              disorder.  We have to call it organic affective syndrome.
 
         
 
         (Dr. Michael Taylor Deposition, Jt. Ex. 1, p. 20, 11. 14-21)
 
         
 
              As of September of 1988, Dr. Taylor determined claimant was 
 
         still experiencing some of the symptoms which Dr. Taylor 
 
         initially found.  Those symptoms included rare crying spells, 
 
         irritability, but better behavioral control, decreased interest 
 
         level, decreased energy level, impaired concentration level.
 
         
 
              Dr. Taylor also determined that as of September of 1988, 
 
         claimant was incapable of handling any type of competitive 
 
         employment.  Dr. Taylor opined claimant's medical condition would 
 
         negatively affect claimant's dependability as an employee. 
 
         Likewise, Dr. Taylor also indicated claimant's endurance on the 
 
         job would be very poor.  Additionally, Dr. Taylor opined 
 
         claimant's condition would adversely affect the quality of work 
 
         with which claimant could perform.  The psychiatrist found a 
 
         decreased ability to concentrate, an increased level of 
 
         frustration tolerance, a decreased interest level, and that they 
 
         all adversely affected claimant's work capabilities.  Dr. Taylor 
 
         also testified that claimant had a very low tolerance level and 
 
         he would "blow up easily."
 
         
 
              Dr. Taylor finally opined claimant would be incapable of 
 
         ever holding a position in competitive employment.  Dr. Taylor 
 
         maintained that while several neurologists addressed the issue of 
 
         post-contusion syndrome, those neurologists only dealt with the 
 
         area of claimant's visual fields.  They did not address claimant 
 
         in the context of his mental status.
 
         
 
              Claimant was provided by defendants with services other than 
 
         medical services.  Claimant was given vocational rehabilitation 
 
         services.  Lewis E. Vierling was retained by defendants to assist 
 
         claimant.  Mr. Vierling testified by way of deposition.
 
         
 
              Mr. Vierling testified his first involvement with claimant 
 
         was made on March 31, 1987.  Mr. Vierling reviewed all of 
 
         claimant's records.  At the time, Mr. Vierling testified he felt 
 
         claimant should be placed in a situation similar to a sheltered 
 
         workshop.  As a result, claimant was placed in a program 
 
         established by the Easter Seal Center.  The program commenced on 
 
                                                
 
                                                         
 
         March 21, 1988 and claimant continued in the same until June 2, 
 
         1988.  Claimant was placed in a situation where he would label 
 
         packages, collate, and sort items for approximately six hours per 
 
         day.  According to records, claimant reached a capacity which was 
 
         57 percent of what the normal person could perform.
 
         
 
              Mr. Vierling testified he believed claimant was 
 
         competitively employable.  Mr. Vierling also testified he did not 
 
         believe claimant was motivated to return to work, and that 
 
         claimant had a potential for competitive employment in the 
 
         future.  Under cross-examination from claimant's attorney, Mr. 
 
         Vierling stated:
 
         
 
              There have been so many things that have happened to him 
 
              over the last seven years, quite a deal of inactivity 
 
              employment-wise that I can't really say. I think it's open.  
 
              I honestly believe that it is open and that the gentleman 
 
              can become competitively employed.  Whether it's eighty-nine 
 
              days or ninety-five days, I can't say with any probability.
 
         
 
         (Lewis E. Vierling Dep., Jt. Ex. 16, P. 88, 11. 5-12)
 
         
 
              Mr. Vierling admitted in his deposition that claimant was 
 
         incapable of moving into regular employment at that time. 
 
         However, Mr. Vierling had initiated a probationary position for 
 
         claimant where claimant would work in private industry but in a 
 
         situation similar to a sheltered workshop.  Claimant did not 
 
         participate in the program.  Mr. Vierling did acknowledge that at 
 
         the time of the taking of his deposition, claimant was unable to 
 
         work forty hours per week.
 
         
 
              Marian D. Jacobs testified she was employed as a specialist 
 
         in vocational rehabilitation.  She was retained by claimant as an 
 
 
 
 
 
                                
 
                                                
 
                                                         
 
         expert witness.  Ms. Jacobs testified she reviewed claimant's 
 
         medical records, and his records from the Easter Seals Center. 
 
         Ms. Jacobs determined that based upon the foregoing records, 
 
         claimant was not competitive in the employment field.  Ms. Jacobs 
 
         emphasized the fact that during claimant's work experience at the 
 
         Easter Seals Center, claimant only achieved just over 50 percent 
 
         of what a normal person could perform.  This witness also 
 
         testified there was no way she could determine whether claimant 
 
         could ever reach a 100 percent performance within the sheltered 
 
         workshop setting.  Ms. Jacobs did testify that claimant's 
 
         progress would be slow and at less than a normal rate.
 
         
 
              Rosalie Sandahl testified at the hearing.  She testified she 
 
         supervised claimant while he was working at the Easter Seals 
 
         Center.  She reported that claimant was experiencing problems 
 
         with his vision while he was collating and labeling.  Ms. Sandahl 
 
         reported that claimant had problems reading left to right and 
 
         that when he sorted zip codes, claimant could not perform without 
 
         errors.  Ms. Sandahl also indicated claimant was not allowed to 
 
         label because of his errors.  She also stated claimant was 
 
         frustrated with himself when he was unable to perform a task.  
 
         Ms. Sandahl also testified that 80 percent of claimant's work 
 
         time was spent inserting and collating, that the jobs he could 
 
         perform he did very well, but that claimant was not versatile.
 
         
 
                                APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on October 26, 1981 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman, 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of October 26, 1981 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
                                                
 
                                                         
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         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, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
                                                
 
                                                         
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton, supra, a worker becomes an 
 
         odd-lot employee when an injury makes the worker incapable of 
 
         obtaining employment in any well-known branch of the labor 
 
         market.  An odd-lot worker is thus totally disabled if the only 
 
         services the worker can perform are so limited in quality, 
 
         dependability, or quantity that a reasonably stable market for 
 
         them does not exist. Id., citing Lee v. Minneapolis Street 
 
         Railway Company, 230 Minn.3l5, 320, 41 N.W.2d 433, 436 (1950).  
 
         The rule of odd-lot allocates the burden of production of 
 
         evidence.  If the evidence of degree of obvious physical 
 
         impairment, coupled with other facts such as claimant's mental 
 
         capacity, education, training or age, places claimant prima facie 
 
         in the odd-lot category, the burden should be on the employer to 
 
         show that some kind of suitable work is regularly and 
 
         continuously available to the claimant. Certainly in such a case 
 
         it should not be enough to show that claimant is physically 
 
         capable of performing light work and then round out the case for 
 
         non-compensable by adding a presumption that light work is 
 
         available.  Guyton, 373 N.W.2d at 105.
 
         
 
              When a worker makes a prima facie case of total disability 
 
         by producing substantial evidence that the worker is not 
 
         employable in the competitive labor market, the burden to produce 
 
                                                
 
                                                         
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker falls in the odd-lot category, the worker is 
 
         entitled to a finding of total disability. Even under the odd-lot 
 
         doctrine, the trier of fact is free to determine the weight and 
 
         credibility of the evidence in determining whether the worker's 
 
         burden of persuasion has been carried.  Only in an exceptional 
 
         case would evidence be sufficiently strong to compel a finding of 
 
         total disability as a matter of law.  Guyton, 373 N.W.2d at 106. 
 
         The court went on to state:
 
         
 
                 The commissioner did not in his analysis address any of 
 
              the other factors to be considered in determining industrial 
 
              disability.  Industrial disability means reduced earning 
 
              capacity.  Bodily impairment is merely one factor in a 
 
              gauging industrial disability.  Other factors include the 
 
              worker's age, intelligence, education, qualifications, 
 
              experience, and the effect of the injury on the worker's 
 
              ability to obtain suitable work.  See Doerfer Division of 
 
              CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984).  When the 
 
              combination of factors precludes the worker from obtaining 
 
              regular employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability.  See 
 
              McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 
 
              1980).
 
         
 
              In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 
 
         (1935) the court, addressing the issue of the meaning of 
 
         disability stated:
 
         
 
                 What is "permanent total disability"?  Does this clause 
 
              refer to "functional disability" or to "industrial 
 
              disability"?
 
 
 
 
 
 
 
                                
 
                                                         
 
         
 
                 For clearness we shall use the term "industrial 
 
              disability" as referring to disability from carrying on a 
 
              gainful occupation--inability to earn wages.  By "functional 
 
              disability" we shall refer to the disability to perform one 
 
              or more of the physical movements which a normal human being 
 
              can perform.
 
         
 
                  ....
 
         
 
                 It is obvious that "disability" here used cannot refer to 
 
              mere "functional disability",...
 
         
 
                 It is...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 terms of percentages of the total physical 
 
              and mental ability of a normal man.
 
         
 
                ....
 
         
 
              ...[T]he Compensation law was passed for the purpose of 
 
              compensating the working man when injured.  The loss which 
 
              this claimant suffered due to the injury which he received 
 
              while in the employ of the company is the inability to carry 
 
              on the work he was doing prior to the time of the injury, or 
 
              any work which he could perform.  This man at fifty-nine 
 
              years of age, after thirty years as a street car motorman, 
 
              with little education, cannot find or hold a position that 
 
              would not require some, manual labor, and, of course, due to 
 
              the condition of his back, he cannot perform such work.  To 
 
              say that he might become a stenographer or a lawyer or a 
 
              clerk or a bookkeeper is to suppose the impossible, for a 
 
              fifty-nine-year old man, with no education, is not capable 
 
              of securing or filling any such position.  His disability 
 
              may be only a twenty-five or thirty per cent disability 
 
              compared with the one hundred per cent perfect man, but, 
 
              from the standpoint of his ability to go back to work to 
 
              earn a living for himself and his family, his disability is 
 
              a total disability, for he is not able to again operate the 
 
              street car and perform the work which the company demanded 
 
              of him prior to the time of the accident.
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         the injury which he sustained on October 26, 1981 is causally 
 
         connected to this claimed disability.  There is medical testimony 
 
         linking claimant's psychological problems to claimant's head 
 
         injury at work.  Dr. Taylor opined:
 
         
 
              Mr. Disbrow was injured in October of 1981 when he was 
 
              struck in the head with a bucket from a backhoe.  The exact 
 
              length of loss of consciousness, if any, is unclear, as is 
 
              the exact length of any period of post traumatic amnesia.  
 
                                                
 
                                                         
 
                   It appears that there was some, but it's difficult to 
 
              determine how long the post traumatic amnesia was.  He had 
 
              ongoing difficulties with headache, visual disturbance.  He 
 
              was evaluated by several physicians.  He had a CAT scan, 
 
              which was interpreted as showing a right parietal occipital 
 
              contusion of the brain. He was found to have visual field 
 
              deficits.  The nonpsychiatric physicians who were treating 
 
              him eventually came to the opinion that they thought Mr. 
 
              Disbrow was able to go back to work, that his visual 
 
              difficulties had stabilized to the point that there would be 
 
              no further improvement expected in his visual difficulties.
 
         
 
              Q.  In following up with Don, did you form an, initial 
 
              diagnosis as to whether or not he had any psychiatric 
 
              disorder as a result of the injury?
 
         
 
              A.  Yes.
 
         
 
              Q.  Did you formulate that diagnosis within a reasonable 
 
              degree of medical certainty?
 
         
 
              A.  Based on the information available to me at that time, 
 
              yes.
 
         
 
              Q.  Did eventually that diagnosis change?
 
         
 
              A.  Yes.
 
         
 
              Q.  What was your initial feeling?
 
         
 
              A.  My initial diagnostic impression was that of major 
 
              depressive disorder.
 
         
 
                 ....
 
         
 
              ...Don was not able to work.  It was my opinion that the 
 
              cause of his not being able to work was the major depressive 
 
              disorder.  It was my opinion that the cause of the major 
 
              depressive disorder was the continuing difficulties that he 
 
              was having as a result of the October 1981 head injury.
 
         
 
         (Taylor Dep., Jt. Ex. 1, p. 7. 1. 21 to p. 9, 11. 1-2, p. 12,
 
         11. 1-6)
 
         
 
              Dr. Winston also noted post-contusional changes in 
 
         claimant's right parietooccipital region.  Dr. Peterson found 
 
         "areas of apparent ischemia posterior laterally on the right side 
 
         of the brain.  Dr. Friedgood found "a very minimal neurologic 
 
         deficit which should cause him very slight disability.  His 
 
         deficit consists of a,slight loss of vision in the lower portion 
 
         of his visual field on the left."
 
         
 
              Dr. Morstad diagnosed claimant as:  "Previous closed head 
 
         injury with residual cognitive and perceptual deficits.  2) 
 
         Chronic anxiety and depression; 3) Some response to Elavil."
 
                                                
 
                                                         
 
         
 
              There is claimant's testimony that none of his symptoms 
 
         appeared until after the work injury occurred on October 26, 
 
         1981. Claimant has established the requisite causal connection.
 
         
 
              The next issue to address is the nature and extent of 
 
         claimant's injuries.  Claimant has been evaluated by a number of 
 
         physicians relative to a functional impairment rating.  Dr. 
 
         Winston has opined claimant has a 60 percent functional 
 
         impairment to the body as a whole.  Dr. Carlstrom has opined 
 
         claimant has sustained a functional impairment of 4 to 6 percent 
 
         of the body as a whole.
 
         
 
              Dr. Friedgood determined "Mr. Disbrow has a very minimal 
 
         neurologic deficit which should cause him very slight disability. 
 
         His deficit consists of a slight loss of vision in the lower 
 
         portion of his visual field on the left....It is very difficult 
 
         for me to assign a disability rating based on these types of 
 
         subjective complaints."
 
         
 
              Dr. Plummer wrote in his letter of May 14, 1982 that 
 
         claimant's incongruous left homonyomous quadrant deficit resulted 
 
         in a 9 percent impairment of the visual system.
 
         
 
              Dr. Taylor, in his deposition, did not provide an impairment 
 
         rating.  Nevertheless, he opined claimant's prognosis was poor. 
 
         As of October 3, 1988, Dr. Taylor opined claimant would never be 
 
         able to return to competitive employment because of.claimant's 
 
         psychological condition.
 
         
 
              Dr. Taylor also distinguished the medical reports of the 
 
         neurologists from his own reports. Dr.  Taylor reported under 
 
         cross-examination:
 
         
 
              A.  The neurologists, as I recall, agree that there was post 
 
              concussion or post contusion syndrome, but primarily 
 
              addressed only the issue of the visual fields.  Most of the 
 
              other physicians don't address -- don't even describe mental 
 
              status.  What I'm saying is we are talking about apples and 
 
              oranges here.  They may say his hand is okay or his foot is 
 
              okay, but they are not saying how his brain is working.
 
         
 
         (Taylor Dep., Jt. Ex. 1, p. 30, 11. 12-20)
 
         
 
              Dr. Taylor also emphasized the following under 
 
         cross-examination:
 
         
 
              A.  In worker's compensation cases or in cases where 
 
              evaluation of a patient is necessary, I don't think that 
 
              Doctor Gordon, a cardiologist, would fall to -- would fault 
 
              me for failing to recognize subtle cardiac symptoms in 
 
              opining that psychiatrically I didn't see any problem with 
 
              somebody going back to work.  I don't fault the other 
 
              physicians who have examined Mr. Disbrow for failing to 
 
              recognize the neuropsychological problems here.
 
                                                
 
                                                         
 
         
 
                 Yes, there is a difference of opinion, and I believe the 
 
              difference of opinion arises because they didn't have all 
 
              the information.
 
         
 
         (Taylor Dep., Jt.. Ex. 1, p. 31. 11. 4-17)
 
         
 
         
 
              Great weight is accorded to the testimony of Dr. Taylor.  He 
 
         saw claimant on seventeen separate occasions.  He was claimant's 
 
         treating psychiatrist.  He saw claimant for purposes other than 
 
         to make an evaluation.  See Reiland v. Palso, Inc. Thirty-Second 
 
         Biennial Report of the Industrial Commissioner 56 (1975); Dickey 
 
         v. ITT Continental Baking Company, Thirty-Fourth Biennial Report 
 
         of the Industrial Commissioner 89 (1979).
 
         
 
              Claimant alleges he is permanently and totally disabled, or 
 
         that in the alternative, claimant alleges he is an odd-lot 
 
         employee under Guyton, supra.  Claimant maintains he is unable to 
 
         return to competitive employment due to claimant's physical and 
 
         psychological condition.
 
         
 
              While claimant asserts the applicability of the odd-lot 
 
         doctrine, it is concluded that whether claimant is an odd-lot 
 
         employee under Guyton, is irrelevant to this case.  The evidence 
 
         presented establishes claimant is permanently and totally 
 
         disabled under the principles recited in Diederich.
 
         
 
              Claimant is 59 years old.  He was 51 at the time of his 
 
         injury.  Claimant's work history is primarily that of a truck 
 
         driver.  With claimant's visual problems, it is evident, he is 
 
         unable to continue in that capacity.  Moreover, since the date of 
 
         the accident, claimant has only driven on one or two occasions.
 
 
 
 
 
 
 
                                
 
 
 
                                                
 
                                                         
 
         
 
              Claimant has a GED.  Further education appears remote since 
 
         claimant has difficulty reading for more than momentary stretches 
 
         of time.  Claimant's current skills do not transfer to sedentary 
 
         jobs.
 
         
 
              Despite claimant's lack of education, the record indicates 
 
         claimant has attempted rehabilitation through Iowa Methodist 
 
         Medical Center.  Claimant, in 1983 and 1584, has attempted 
 
         vocational rehabilitation through the State of Iowa Department of 
 
         Public Instruction, Rehabilitation Education and Services Branch. 
 
         Mr. J. William Birtcher, Counselor, closed claimant's file on 
 
         February 23, 1984 . The counselor determined that given 
 
         claimant's physical and mental condition, there were no services 
 
         available which would benefit claimant in terms of 
 
         employability.
 
         
 
              The record also indicates claimant attempted vocational 
 
         rehabilitation in 1988.  Claimant agreed to placement in a 
 
         sheltered workshop setting.  However, during the course of his 
 
         participation, claimant had visual problems.  He also had 
 
         problems with his feet swelling, he made errors, and he had to be 
 
         reassigned to less visually taxing jobs.  At the end of the 
 
         program, claimant had only reached a 57 percent performance level 
 
         at tasks which did not require visual acuity.  Claimant was by no 
 
         means capable of entering the competitive job market at the close 
 
         of his experience at the Easter Seal Center.
 
         
 
              Even Mr. Vierling, the vocational rehabilitation specialist, 
 
         recognized that factor. Mr. Vierling only attempted to secure a 
 
         probationary position for claimant.  The position would have been 
 
         closely monitored by both the potential employer and Mr. 
 
         Vierling. Had Mr. Vierling believed claimant was capable of 
 
         holding down a full-time position, Mr. Vierling would have sought 
 
         several positions for which claimant was qualified.  That was not 
 
         done.
 
         
 
              It is true, a probationary position similar to the position 
 
         which claimant held at the Easter Seal Center was created for 
 
         him. Nevertheless, claimant refused to attempt such a job.  At 
 
         the time, claimant was experiencing problems with swelling in his 
 
         feet and in his legs.  The swelling was noted in claimant's 
 
         evaluation from the supervisor at the Easter Seal Center.  
 
         Claimant had been moved from a standing position to one which 
 
         included sitting. Claimant had experienced previous problems with 
 
         blood clots in his legs.  It was reasonable for claimant to want 
 
         his swelling cleared up before he attempted his probationary job. 
 
          Besides such a position was only tentative.  It could hardly 
 
         have been described as competitive employment.
 
         
 
              Claimant has established to the satisfaction of the 
 
         undersigned that he is permanently and totally disabled from 
 
         employment during the period of his disability.  See:  Iowa Code 
 
         section 85.34(3).  It is unnecessary to further evaluate 
 
         claimant's status or disability under the Guyton test.  However, 
 
                                                
 
                                                         
 
         even if the factors of Guyton are applicable, claimant is a 
 
         worker incapable of securing employment in any well-known branch 
 
         of the labor market.  Claimant is totally disabled under Guyton.  
 
         The only services claimant can perform are so limited in quality, 
 
         dependability, or quantity that a reasonably stable labor market 
 
         for him does not exist.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  On October 26, 1981, claimant received an injury 
 
         while working for defendant.
 
         
 
              FINDING 2.  As a result of the injury on October 26, 1981, 
 
         claimant has a permanent functional impairment to the body as a 
 
         whole involving claimant's eyes, head, and claimant's 
 
         psychological condition.
 
         
 
              CONCLUSIONS A.  Claimant has met his burden of proving his 
 
         present physical and psychological condition is causally 
 
         connected to his injury on October 26, 1981.
 
         
 
              FINDING 3.  Claimant is a 59-year-old individual who has a 
 
         GED.
 
         
 
              FINDING 4.  Claimant has spent most of his working career 
 
         engaged in physical occupations, and in truck driving.
 
         
 
              FINDING 5.  Claimant has unsuccessfully attempted vocational 
 
         rehabilitation.
 
         
 
              CONCLUSION B.  As a result of his injury on October 26, 
 
         1981, claimant has a permanent total disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant weekly 
 
         benefits for the duration of claimant's period of permanent total 
 
         disability with said benefits commencing on October 26, 1981 and 
 
         running continuously at the stipulated rate of two hundred 
 
         forty-one and 93/100 dollars ($241.93) per week.
 
         
 
              Defendants shall take credit for benefits previously paid 
 
         claimant.
 
         
 
              Accrued benefits are to be paid in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Iowa Code, as amended.
 
         
 
              Costs are taxed to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
                                                
 
                                                         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
              Signed and filed this 16th day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Peter W. Berger
 
         Attorney at Law
 
         1217 Army Post Rd
 
         Des Moines, IA  50315
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines, IA  50309
 
 
 
         
 
 
        
 
 
 
 
 
        
 
        
 
                                       1803
 
                                       Filed June 16, 1989
 
                                       Michelle A. McGovern
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        
 
        DONALD DISBROW,
 
        
 
            Claimant,
 
                                                        File No. 686144
 
        vs.
 
        
 
        DONALDSON CONSTRUCTION,                         A R B I T R A T 
 
        I O N
 
        
 
            Employer,                                  D E C I S I O N
 
        
 
        and
 
        
 
        HOME INSURANCE COMPANY,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        1803
 
        
 
             Claimant awarded permanent total disability subsequent to 
 
             injury resulting in functional impairment of the body as a whole. 
 
             Claimant was 51 years old at the time he sustained a head injury. 
 
             Claimant subsequently sustained visual problems and psychological 
 
             complications. Claimant unsuccessfully attempted vocational 
 
             rehabilitation on several occasions.
 
             
 
        
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBBIE TOFTEE                   File Nos..686176  &  814729
 
          
 
               Claimant,                       R E V I E W
 
          
 
          VS.                              R E 0 P E N I N G-
 
          
 
          WEBSTER CITY PRODUCTS,                   A N D
 
          
 
               Employer,                   A R B I T R A T I 0 N
 
               Self-Insured,
 
               Defendant.                     D E C I S I O N
 
         
 
                                   INTRODUCTION
 
                                        
 
              These two files have been consolidated by Deputy Industrial 
 
         commissioner, Helenjean Walleser.  File number 686176 is a 
 
         review-reopening proceeding.  File number 814729 is an 
 
         arbitration proceeding.  Both actions have been brought by Debbie 
 
         Toftee, claimant, against Webster City.Products, self-insured 
 
         employer, defendant.  The cases were heard by the undersigned in 
 
         Fort Dodge, Iowa on November 9, 1988.
 
         
 
              The record consists of the testimony of claimant, the 
 
         testimony of Lynn Barnhart, and the testimony of Don Gorman.  The 
 
         record is also composed of claimant's exhibits A through L and 
 
         defendant's exhibit number 1.
 
         
 
         As a result of the prehearing reports and orders submitted and 
 
         approved on November 9, 1988, the issues presented by the parties 
 
         are:
 
         
 
              1)  Whether claimant sustained an injury for file 814729 on 
 
         February 18, 1987 which arose out of and in the course of 
 
         employment with employer;
 
         
 
              2)  Whether there is a causal relationship between the 
 
         alleged injury and the disability;
 
         
 
              3)  Whether claimant is entitled to permanent partial 
 
         disability benefits; and,
 
         
 
              4)  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation.
 
         
 
         
 
         
 
         TOFTEE V. WEBSTER CITY PRODUCTS 
 
         Page 2
 
         
 
         
 
                                 FACTS PRESENTED
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant is a 32 year old employee of defendant.  She 
 
         commenced her employment with defendant in Match of 1979 as a 
 
         press operator.
 
         
 
              As early as 1981, claimant had been experiencing problems 
 
         with her right hand, arm and elbow.  Claimant had several 
 
         surgeries for a right carpal tunnel syndrome.  She also had a 
 
         right ulnar release.  An agreement for settlement was approved by 
 
         the Division of Industrial Services on March 29, 1983, for a 10 
 
         percent permanent partial disability of the right upper 
 
         extremity.  Claimant was paid all benefits pursuant to that 
 
         agreement.
 
         
 
              Claimant returned to work after each surgery.  From November 
 
         of 1984 until February of 1987, claimant worked as a Class A 
 
         press operator.  During that time period claimant was required to 
 
         lift and throw scrap metal into a five feet two inch dumpster.  
 
         Medical records for claimant's then surgeon, Arnis B. Grundberg, 
 
         M.D., indicate that as of June 14, 1983, claimant was having pain 
 
         which radiated towards her right shoulder.  Additional medical 
 
         records for.calendar year 1986 also indicate that claimant was 
 
         experiencing shoulder problems.  Despite her shoulder complaints, 
 
         claimant continued to work.
 
         
 
              Claimant testified that on October 30, 1986, while dumping 
 
         scrap metal at work, claimant's "arm caught."  The next day, 
 
         claimant testified she could hardly move her arm or put on her 
 
         shirt or coat.  Claimant reported the incident to the company 
 
         nurse and claimant was referred back to J. X. Latella, D.O., her 
 
         initial treating physician.  Dr. Latella treated claimant with 
 
         hot packs and she continued working.
 
         
 
              Claimant was referred to the University of Iowa Hospitals 
 
         and Clinics by Dr. Latella.  On February 18, 1987, claimant was 
 
         seen by both Curtis M. Steyers, M.D., and James V. Nepola, M.D.
 
         
 
              Dr. Steyers, in his report of February 23, 1987, writes:
 
              
 
              I saw Ms. Debbie Toftee on 2-18-87 for her right shoulder, 
 
              arm and hand discomfort.  She was also seen by Dr. Nepola on 
 
              that day to evaluate her right shoulder.  It is our 
 
              conclusion that she most probably has thoracic outlet 
 
              syndrome as the cause of her numbness and tingling in the 
 
              right hand as well as clinical evidence of glenohumeral 
 
              joint subluxation as an additional cause of right shoulder 
 
              pain.  The glenohumeral subluxation is not causing the 
 
              paresthesias in her right hand, and it is unclear that this 
 
              is related to her work.
 
              
 
              
 
              
 
         TOFTEE V. WEBSTER CITY PRODUCTS 
 
         Page 3
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Nepola in his report of the same date opines:
 
              
 
              I examined the patient, Debbie L. Toftee, at the Orthopaedic 
 
              Clinic of University of Iowa Hospitals and Clinics on 
 
              February 18, 1987 [sic].  This young woman came with a 
 
              history of forearm and shoulder pain, status post carpal 
 
              tunnel release, pronator release and treatment of lateral 
 
              epicondylitis.  She had had electromyographic studies and 
 
              nerve conduction velocities done on February 17, 1986 and 
 
              these were normal.  A great portion of the debilitating pain 
 
              that this woman speaks of, was innating from the shoulder.  
 
              Her history stems from an injury she reportedly sustained 
 
              several years ago in 1981 while working with a press.  At 
 
              that point she said she felt pain in the anterior aspect of 
 
              her shoulder as well as in her hand and wrist and as of 
 
              lately, her shoulder pain has been increasing.  She 
 
              seemingly has markedly decreased power in her shoulder and 
 
              certain attitudes. (positional weakness) Her pain is not 
 
              worse at night and she has tiring when she uses her 
 
              shoulder, but no real pain with overhead activity.  On 
 
              examination, she had full range of motion of her shoulder, 
 
              which was symmetrical.  She had a definite anterior 
 
              apprehension, but a painful area of palpation over the 
 
              biceps tendon and over the humeral head which seems to ride 
 
              high anteriorly when she works in forward elevation from 0 
 
              to 90 degrees (i.e. when she were to be continuously pushing 
 
              something away from her).  On motion in front of her body 
 
              with continuous elevation and lowering of the humerus, one 
 
              can feel crepitus over the anterior aspect of the humeral 
 
              head in the region of the biceps tendon, she has no 
 
              posterior laxity and no inferior laxity that I can detect.  
 
              Diagnosis in this woman is slightly obscure in that she has 
 
              pain somewhat attributable to biceptual tendonitis, however 
 
              on exam which also makes one think of anterior instability 
 
              of the shoulder (i.e. subluxation) in order to differentiate 
 
              this, she was given 5cc Lidocaine injection subacromially 
 
              with 3cc placed in the area of the biceps tendon sheath, 
 
              which relieved most of her anterior pain, she was also given 
 
              12mg of Celestone in the area of the biceptual sheath.  I 
 
              would tentively [sic] give this woman a diagnosis of 
 
              shoulder impingement with biceptual tendonitis secondary to 
 
              chronic overuse syndrome.  She is still under our care and 
 
              will need a period of rest and physical therapy in order to 
 
              bring this problem under control.  It was discussed with the 
 
              patient that these chronical reuse problems
 
         
 
         
 
         
 
         TOFTEE V. WEBSTER CITY PRODUCTS 
 
         Page 4
 
         
 
         
 
              can sometimes take several months in order to heal and must 
 
              be spared vigorous activity during that period in order to 
 
              ensure adequate healing and avoid a chronic inflammation 
 
              pain-type cycle of recurring shoulder ailment.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              (Emphasis added.)
 
         
 
              Various modes of treatment, including several surgeries, 
 
         were performed on claimant in 1987.  An arthrogram was performed 
 
         in Iowa City on March 24, 1987.  Dr. Nepola operated on 
 
         claimant's right shoulder on May 28, 1987 and on October 12, 
 
         1987.
 
         
 
              Claimant testified she remained off work from February 18, 
 
         1987 until April 20, 1988.  When claimant returned to work, she 
 
         was unable to return as a Class A press operator.  Claimant 
 
         became a general production worker.  She was placed in various 
 
         positions upon her return to work.  Only one position had been 
 
         approved by Dr. Nepola and claimant was not assigned the task.  
 
         Claimant was then off work for a period of time during the summer 
 
         of 1988.  She returned to work at the rate of $8.93 per hour.  
 
         Claimant stated she had not been able to obtain as much overtime 
 
         work since she was only a general production worker.  She further 
 
         testified she would make $1,000 less in 1988 as a production 
 
         worker than she had made two years prior as a Class A press 
 
         operator.  Claimant testified she wants to continue working as 
 
         long as possible.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on February 18, 1987 which 
 
         arose out of and in the course of her employment. McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's 
 
         Corp., 255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of 
 
         Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
         
 
         
 
         TOFTEE V. WEBSTER CITY PRODUCTS
 
         Page 5
 
         
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              "An injury occurs in the.course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it."  Cedar Rapids Comm. Sch.  Dist. v. 
 
         Cady, 278 N.W.2d 298 (Iowa 1979); McClure, 188 N.W. 2d  283 (Iowa 
 
         1971); Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 18, 1987 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary. Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language. 
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              In the instant case, claimant received an injury which arose 
 
         out of and in the course of her employment.  Claimant had been 
 
         experiencing some difficulties with her right shoulder in 1983.  
 
         She was engaged in the type of work duties which required the 
 
         repetitive use of her shoulder.  However, claimant was able to 
 
         continue working despite the pain she was experiencing.  Then on 
 
         October 30, 1986, claimant while working, "felt her arm catch." 
 
         She promptly reported the incident to the company nurse.  
 
         Claimant continued to work until February 18, 1987 when Dr. 
 
         Nepola medically restricted claimant from working.
 
         
 
              The fighting issue here is whether the right shoulder injury 
 
         occurred in 1981 when claimant also injured her right
 
         
 
         
 
         
 
         TOFTEE V. WEBSTER CITY PRODUCTS 
 
         Page 6
 
         
 
         
 
         hand and arm or whether the injury occurred at a later time.  The 
 
         undersigned finds the right shoulder injury developed over a 
 
         period of time.  The injury did not relate back to the 1981 work 
 
         injury.  The determination is supported by the record.  Dr. 
 
         Nepola, an assistant professor of orthopaedic surgery at the 
 
         University of Iowa opines: "To whom it may concern, [sic] We feel 
 
         that Ms. Toftee's Rt shoulder impingement has nothing to do with 
 
         and is a separate injury than her carpal tunnel syndrome."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Nepola's opinion is based upon various tests which he 
 
         performed on claimant.  It is true, he initially did not know the 
 
         etiology of claimant's shoulder pain, however, he rendered the 
 
         opinion after various tests had been performed.
 
         
 
              It is apparent this claimant's injury is governed by the 
 
         holding in McKeever Custom Cabinets v. Smith, 379 N.W.2d 368 
 
         (Iowa 1985).  In McKeever, supra, the Iowa Supreme Court has 
 
         recognized the cumulative injury rule.  The cumulative injury 
 
         rule is applied when a disability develops gradually or as a 
 
         result of a repeated trauma.  According to the McKeever court, 
 
         the injury occurs when an employee, because of pain or physical 
 
         inability, can no longer work.  With respect to the case at hand, 
 
         claimant, because of her right shoulder pain, was unable to work 
 
         as of February 18, 1987.  This is the date her injury occurred.
 
         
 
              Because claimant's date of injury is determined to be 
 
         February 18, 1987, this is the date which is considered when 
 
         calculating claimant's gross weekly wages and weekly benefit 
 
         rate.  According to a stipulation made during the hearing, the 
 
         appropriate weekly benefit rate is $221.30 per week since an 
 
         injury date of February 18, 1987 has been found.  The parties 
 
         have also stipulated that in the event such an injury date has 
 
         been found, then the claimant is entitled to additional healing 
 
         period benefits for 55.5 weeks for a total of $2,889.33 in 
 
         additional healing period benefits due to claimant.
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         any permanent partial disability benefits.  Claimant alleges she 
 
         has an industrial disability.  Defendant does not dispute that 
 
         claimant has a functional impairment rating of 10 percent to the 
 
         body as a whole.  However, defendant maintains claimant is still 
 
         gainfully employed at its plant site, and there is no industrial 
 
         disability in the present case.
 
         
 
              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
 
         
 
         
 
         
 
         TOFTEE V. WEBSTER CITY PRODUCTS 
 
         Page 7
 
         
 
         
 
         and inability to engage in employment for which he is fitted.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 
 
         (1963).  Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 
 
         (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added.up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v.Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
         
 
         
 
         TOFTEE V. WEBSTER CITY PRODUCTS
 
         Page 8
 
         
 
         
 
              Claimant has returned to work at defendant's plant.  
 
         However, claimant has not returned as a Class A press operator.  
 
         Because of her shoulder injury, claimant.is unable to perform 
 
         these duties.  In October of 1986, a Class A press operator was 
 
         paid $9.09 per hour.  At the time of the hearing, a Class A press 
 
         operator was paid $9.29 per hour.  Claimant testified that she is 
 
         now employed as a general production worker at the rate of $8.93 
 
         per hour.  Her injury has affected the hourly rate of pay which 
 
         she can receive pursuant to the collective bargaining agreement.  
 
         Claimant also testified that she is now unable to work as much 
 
         overtime as she did prior to her shoulder injury.  According to 
 
         claimant's testimony, she has been informed by her foreman that 
 
         she can have overtime work when there is work available and when 
 
         she is medically capable of performing the work.  Claimant has 
 
         also testified that prior to her shoulder injury she always 
 
         worked the summer three week shut down period.  However, claimant 
 
         has reported that during 1988, she was only allowed to work one 
 
         of the three weeks.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has established that she has been making less per 
 
         hour since her shoulder injury than what she had made prior to 
 
         her injury.  This loss in hourly wages is directly attributable 
 
         to the medical restrictions placed on claimant because of her 
 
         work injury.  Claimant has also established that overtime hours 
 
         are only offered to her for very limited positions and that 
 
         claimant, as a general production worker, cannot have overtime 
 
         work operating a press.  This reduction in overtime work is 
 
         directly attributable to claimant's right shoulder condition.  
 
         Her earning capacity is definitely affected by her injury.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1. On February 18, 1987, claimant was injured while 
 
         working for defendant.
 
         
 
              FINDING 2. As a result of the injury on February 18, 1987, 
 
         claimant sustained injuries to her right shoulder.
 
         
 
              FINDING 3. As a result of her injury on February 18, 1987, 
 
         claimant has a functional impairment of 10 percent of the body as 
 
         a whole.
 
         
 
              FINDING 4. As a result of the injury on February 18, 1987, 
 
         claimant has been unable to return to work as a Class A press 
 
         operator.
 
         
 
         
 
         
 
         TOFTEE V. WEBSTER CITY PRODUCTS
 
         Page 9
 
         
 
         
 
              FINDING 5. As a result of the injury on February 18, 1987, 
 
         claimant has only been able to return to work as a general 
 
         production worker.
 
         
 
              FINDING 6. At the time Of the hearing a general production 
 
         worker made $8.93 per hour and a Class A operator made $9.29 per 
 
         hour.
 
         
 
              FINDING 7. As a result of her injury on February 18, 1987, 
 
         claimant has not been medically capable of working overtime as a 
 
         press operator.
 
         
 
              FINDING 8. Claimant's right shoulder injury is not the 
 
         result of claimant's injury on September 25, 1981.
 
         
 
              FINDING 9. With respect to file number 686176, claimant has 
 
         not had a change of condition since the filing of the agreement 
 
         for settlement.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              CONCLUSION A.. Claimant is not entitled to additional 
 
         benefits from defendant as a result of the review-reopening 
 
         proceeding which was filed for file number 686176.
 
         
 
              CONCLUSION B. Claimant has met her burden of proving she has 
 
         a 20 percent permanent partial disability attributable to her 
 
         injury on February 18, 1987.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant one hundred 
 
         (100) weeks of permanent partial disability benefits at the rate 
 
         of two hundred twenty-one and 30/100 dollars ($221.30) per week.
 
         
 
              Defendant is to pay unto claimant fifty-five point five 
 
         (55.5) weeks of healing period benefits at the rate of two 
 
         hundred twenty-one and 30/100 dollars ($221.30) per week.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendant shall receive credit for benefits previously paid.
 
         
 
              Costs are taxed to defendant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Defendant shall file a claim activity report upon payment of 
 
         this award.
 
         
 
         
 
         
 
         TOFTEE V. WEBSTER CITY PRODUCTS 
 
         Page 10
 
         
 
         
 
              Signed and filed this 31st  day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Bldg.
 
         P. 0. Box 1680
 
         Fort Dodge, Iowa  50501
 
         
 
         Mr. Richard L. Karr 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Attorney at Law 
 
         711 Second St.
 
         Webster City, Iowa  50595
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1106; 1803
 
                                         Filed March 31, 1989
 
                                         MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBBIE TOFTEE,                  File Nos. 686176 & 814729
 
          
 
               Claimant,                 R E V I E W -
 
          
 
          VS.                            R E 0 P E N I N G
 
          
 
          WEBSTER CITY PRODUCTS,         A N D
 
          
 
               Employer,                 A R B I  T R A T I 0 N
 
               Self-Insured,
 
               Defendant.                D E C I S I 0 N
 
         
 
         
 
         
 
         1106
 
         
 
              Claimant found to have new injury shoulder as a result of a 
 
         work related injury separate and distinct from a 1981 injury to 
 
         claimant's arm.
 
         
 
         1803
 
         
 
              Claimant found to have a 20 percent industrial disability as 
 
         a result of an injury to claimant's shoulder; claimant had loss 
 
         of earnings and loss of earning capacity when she returned to 
 
         work at a lesser rate of pay; and, where claimant was unable to 
 
         work as much overtime.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         PAULINE LINN,
 
         
 
              Claimant,                            File No. 686205
 
         
 
         VS.
 
                                                     A P P E A L
 
         WEBSTER CITY PRODUCTS,
 
                                                   D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision denying 
 
         all compensation because claimant failed to establish either a 
 
         change in her physical condition or in her earning capacity not 
 
         considered and contemplated in the prior appeal decision.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and claimant's exhibits 1 through 4.  
 
         Both parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal can be stated as whether claimant has 
 
         established a change of condition causally related to her injury 
 
         affecting her earning capacity.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be set forth 
 
         herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law contained in the review-reopening 
 
         decision are appropriate to the issue and evidence.
 
         
 
              In Johnson v. Schwans Sales Enterprises, Appeal Decision 
 
         filed May 25, 1988, the industrial commissioner denied further 
 
         benefits where claimant failed to establish a change of 
 
         condition.  The commissioner noted that it was impossible to 
 
         determine whether claimant had sustained a change of condition 
 
         since the prior settlement agreement did not specify the 
 
         contemplation of the parties as to claimant's future earning 
 
         capacity.
 
         
 
                                    ANALYSIS
 
         
 
              The deputy's analysis of the evidence in conjunction with 
 

 
         
 
         
 
         
 
         LINN V. WEBSTER CITY PRODUCTS
 
         Page   2
 
         
 
         
 
         the law is adopted.  Claimant has failed to show a change of 
 
         condition since the prior hearings.  It is difficult to determine 
 
         whether claimant has established a change of condition where no 
 
         evidence was introduced at the prior hearings as to claimant's 
 
         future earning potential.  Introducing evidence for the first 
 
         time at this hearing only shows what claimant's present condition 
 
         is--it does not demonstrate that claimant's condition has 
 
         changed.
 
         
 
              The findings of fact, conclusions of law and order of the 
 
         deputy are adopted herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant and her husband testified that the intensity 
 
         and length of her migraine headaches has increased after the 
 
         earlier proceeding.
 
         
 
              2.  Those allegations were not corroborated by any medical 
 
         evidence and by themselves are not shown to be a reliable 
 
         indication of a change in claimant's physical condition.
 
         
 
              3.  Claimant saw Job Service and took a GATB test concerning 
 
         her employability after the earlier proceedings.  The opportunity 
 
         for this test was available to claimant at the time of the 
 
         earlier proceedings.
 
         
 
              4.  Claimant's jewelry party business failed after the 
 
         earlier hearings and decisions.
 
         
 
              5.  One factor in the failure of the jewelry party business 
 
         was the economy in Fort Dodge.
 
         
 
              6.  One reason for fewer jobs in Fort Dodge and lesser 
 
         paying jobs was the economy.
 
         
 
              7.  Claimant made no attempt to find employment prior to the 
 
         earlier hearings and decisions and has not attempted to seek 
 
         employment since the earlier proceedings.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has tailed to show a causal connection between the 
 
         injury and any increased disability.
 
         
 
              Claimant has failed to prove by a preponderance of the 
 
         evidence that she has encountered either a change in her physical 
 
         condition or in her earning capacity not considered and con- 
 
         templated at the earlier hearings and at the time of the appeal 
 
         decision by the industrial commissioner.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing from this proceeding.
 
         
 

 
         
 
         
 
         
 
         LINN V. WEBSTER CITY PRODUCTS
 
         Page   3
 
         
 
         
 
              That claimant is to pay the costs of this proceeding 
 
         including the cost of transcription of the hearing proceeding 
 
         under Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file any reports required by Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 20th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         P.O. Box 1680
 
         503 Snell Building
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Richard Karr
 
         Attorney at Law
 
         711 Second Street
 
         Webster City, Iowa 50595
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.40; 2905
 
                                                  Filed June 20, 1988
 
                                                  David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         PAULINE LINN,
 
         
 
              Claimant,                            File No. 686205
 
         
 
         VS.
 
                                                     A P P E A L
 
         WEBSTER CITY PRODUCTS,
 
                                                   D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.40; 2905
 
         
 
              Claimant's attempt to establish a change of condition by 
 
         introducing evidence concerning her employability available at 
 
         prior hearings but not presented at that time, was rejected.  
 
         Introducing evidence for the first time only shows claimant's 
 
         present condition not that claimantOs condition has changes.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DAVID A. FRANCIS,
 
         
 
              Claimant,
 
                                                     FILE NO. 686450
 
         RYDER TRUCK RENTAL,
 
                                                     D E C I S I 0 N
 
              Employer,
 
                                                           0 N
 
         and
 
                                                     A T T O R N E Y
 
         OLD REPUBLIC INSURANCE CO.,
 
                                                        F E E S
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              The parties waive formal proceedings, formal findings and 
 
         formal decision and ask for a brief decision.  From a review of 
 
         the materials and professional statements presented to the 
 
         undersigned on July 14, 1987, attorney,.Channing Dutton, is 
 
         entitled to the sum of three thousand one hundred eighty and 
 
         60/100 dollars ($3,180.60) from the proceeds of the 85.35 
 
         settlement in this matter currently held in trust by attorneys, 
 
         Cable and Payton, who shall pay said sum to Dutton accordingly.
 
         
 
         
 
              Signed and filed this 16th day of July, 1987.
 
         
 
         
 
         
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         2141 Grand Avenue
 
         P. 0. Box 367
 
         Des Moines, Iowa 50302
 
         
 
         Mr. Ronald G. Cable
 
         Mr. Patrick H. Payton
 
         Attorneys at Law
 
         414 E. Grand
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1000
 
                                                    Filed July 16, 1987
 
                                                    LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         DAVID A. FRANCIS,
 
         
 
              Claimant,
 
                                                     FILE NO. 686450
 
         RYDER TRUCK RENTAL,
 
                                                     D E C I S I 0 N
 
              Employer,
 
                                                           0 N
 
         and
 
                                                     A T T 0 R N E Y
 
         OLD REPUBLIC INSURANCE CO.,
 
                                                         F E E S
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1000
 
         
 
              Prior attorney denied a share of 1/3 contingent fee when 
 
         voluntary payments ended and any further payment rejected before 
 
         involvement of subsequent attorney.
 
 
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        ROBERT E. BRAINARD,
 
        
 
            Claimant,
 
                                                    File No. 686661
 
        vs.
 
        
 
        FORT DODGE LABORATORIES, INC.,                A P P E A L
 
        
 
            Employer,
 
                                                    D E C I S I O N
 
        and
 
        
 
        INSURANCE COMPANY OF                           F I L E D
 
        NORTH AMERICA,
 
                                                     JULY 28, 1989
 
            Insurance Carrier,
 
            Defendants.                          INDUSTRIAL 
 
        SERVICES
 
        
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             Attorney Robert L. Ulstad has sought a determination of an 
 
             attorney's lien and a determination of the amount of attorney 
 
             fees in this case. A deputy's decision filed March 25, 1988, 
 
             established the validity of the attorney's lien and set the 
 
             amount of the attorney's fee. Claimant has appealed that 
 
             decision. All parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
        
 
             Claimant states the following issues on appeal:
 
        
 
                  I. Whether the award of a $10,000.00 attorney lien in 
 
                      connection with the petition for review-reopening of 1984 to 
 
                      attorney Robert Ulstad was excessive.
 
             
 
             II. The decision of the deputy is without authority from 
 
             any statute or provision in the Iowa Code.
 
             
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             The attorney fee decision adequately and accurately reflects 
 
             the pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
             The citations of law in the attorney fee decision are 
 
             appropriate to the issues and the evidence.
 
                                                
 
                                      ANALYSIS
 
        
 
             The analysis of the evidence in conjunction with the law is 
 
             adopted.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. A reasonable fee for the services performed by Robert L. 
 

 
        
 
 
 
 
 
             Ulstad on behalf of Robert Brainard in the second 
 
             review-reopening proceeding is a sum having a present value of 
 
             $10,000 computed as of April 29, 1986. That sum is equivalent to 
 
             17.16 percent of all amounts to be paid to Brainard under the 
 
             structured settlement agreement which was approved as part of the 
 
             overall settlement package.
 
        
 
            2. If the amounts due to Ulstad had been paid at the 
 
        appropriate times, he would have received $5,148 in an initial 
 
        lump sum, $46.50 per month until the final lump sum is paid and a 
 
        final amount of $3,432 upon payment of the final $20,000 lump 
 
        sum.
 
        
 
            3. The sum of $6,229.08 payable on April 29, 1988 is the 
 
        equivalent of the sum of $5,148 payable on April 29, 1986.
 
        
 
            4. The sum of $1,318.44 paid on April 29, 1988 is equal to 
 
        $46.50 paid over a period of two years commencing in April 1986.
 
        
 
            5. The sum of $7,547.52, payable on April 29, 1988, is 
 
        equal to the value of all amounts which would have become payable 
 
        to Ulstad prior to the month of May 1988.
 
        
 
            6. When divided over the remaining eight years of the 
 
        annuity, the sum of $7,547.52 has a present value that is equal 
 
        to $114.29 per month paid each month for the remainder of the 
 
        annuity portion of the structured settlement, commencing with the 
 
        month of May 1988.
 
        
 
            7. Ulstad is entitled to a lien upon the payments payable 
 
        to Brainard in the future in an amount equal to the fees that are 
 
        awarded in this decision.
 
        
 
            8. The testimony of Robert Brainard is not reliable.
 
        
 
            9. The testimony of Robert L. Ulstad is accepted as being 
 
        generally correct in regard to the events that have occurred.
 
        
 
                                 CONCLUSIONS OF LAW
 
             
 
             Approval by the industrial commissioner of the amount of any 
 
             attorney's lien is a prerequisite to the lien being enforceable 
 
             against an employer or an insurance carrier.
 
             
 
             Robert L. Ulstad is awarded attorney fees having a present 
 
             value of $10,000 computed as of April 29, 1986. Ulstad's lien 
 
             upon the amounts payable to Robert Brainard under the structured 
 
             settlement agreement is approved in an amount equal to the fees 
 
             which are awarded to Ulstad herein.
 
        
 
            Ulstad should receive the fees at the rate of 17.16 percent 
 
        of all sums paid in the future as and for the proportionate 
 
        amount of the recovery which is allocable to his fees. Ulstad is 
 
        also entitled to receive an additional amount of $114.29 per 
 
        month payable during the remaining portion of the annuity part of 
 
        the structured settlement to provide an amount which is 
 
        substantially equal to the amounts that would have been paid to 
 
        him if he had received 17.16 percent of all payments which have 
 
        been paid to Brainard prior to the month of May 1988.
 
        
 
            After making adjustments to convert all sums to present 
 
        value, the lien shall be enforced by paying to Ulstad the sum of 
 
        $160.79 per month commencing with the month of May 1988 and 
 
        continuing each month for the remaining eight-year term of the 
 
        annuity portion of the structured settlement agreement. Ulstad 
 
        shall also receive the sum of $3,432 in a lump sum payable from 
 

 
        
 
 
 
 
 
        the $20,000 final lump sum settlement which is part of the 
 
        structured settlement agreement. The remainder should be paid to 
 
        Brainard.
 
        
 
              WHEREFORE, the decision of the deputy is affirmed.
 
             
 
                                           ORDER
 
             
 
             THEREFORE, it is ordered:
 
             
 
             That attorney's fees for Robert L. Ulstad are fixed at an 
 
             amount having a present value of $10,000 on April 29, 1986.
 
        
 
            That Ulstad shall have an attorney's lien upon the 
 
        settlement proceeds in an amount having a present value of 
 
        $10,000 on April 29, 1986.
 
        
 
            That Fort Dodge Laboratories, Inc. and Insurance Company of 
 
        North America satisfy Ulstad's lien by paying to Ulstad, as and 
 
        for attorney's fees rendered on behalf of Robert Brainard, the 
 
        sum of one hundred sixty and 79/100 dollars ($160.79) per month 
 
        commencing in the month of May 1988 and continuing each month 
 
        thereafter throughout the annuity portion of the structured 
 
        settlement agreement and an additional sum of three thousand four 
 
        hundred thirty-two and 00/100 dollars ($3,432.00) at the time of 
 
        the final twenty thousand dollar ($20,000) lump sum payment due 
 
        at the expiration of the ten-year annuity provided by the 
 
        structured settlement.
 
        
 
            That the employer and insurance carrier shall pay the 
 
        amounts to Ulstad from the amounts which would be payable to 
 
        Robert Brainard under the provisions of the structured 
 
        settlement.
 
        
 
             That the costs of this action are assessed against Robert E. 
 
             Brainard pursuant to Division of Industrial Services Rule 
 
             343-4.33.
 
        
 
            That the employer and insurance carrier shall pay to Ulstad 
 
        interest on any unpaid amounts from the date such amounts were 
 
        due until paid.
 
        
 
                  Signed and filed this 28th day of July, 1989.
 
                  
 
                  
 
                  
 
                  
 
                                                               
 
        DAVID E. LINQUIST
 
                                                         INDUSTRIAL 
 
        COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Tito Trevino
 
        Attorney at Law
 
        503 Snell Building
 
        P.O. Box 1680
 
        Ft. Dodge, Iowa 50501
 
        
 
        Mr. Marvin E. Duckworth
 
        Attorney at Law
 
        Suite 111, Terrace Center
 
        2700 Grand Avenue
 
        Des Moines, Iowa 50312
 
        
 

 
        
 
 
 
 
 
        Mr. William H. Habhab
 
        Attorney at Law
 
        1216A Central Avenue
 
        Ft. Dodge, Iowa 50501
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT E. BRAINARD,                         File No. 686661
 
         
 
              Employee,                              D E C I S I O N
 
         
 
         vs.                                           F I X I N G
 
         
 
         FORT DODGE LABORATORIES, INC.,       A T T O R N E Y ' S  F E E S
 
         
 
              Employer,                                   A N D 
 
         
 
         and                                  A T T O R N E Y ' S  L I E N
 
         
 
         INSURANCE COMPANY OF
 
         NORTH AMERICA,                                 F I L E D
 
         
 
                                                       MAR 25 1988
 
              Insurance Carrier,
 
              Defendants.                      IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                    INTRODUCTION
 
         
 
              This is a proceeding commenced by Robert L. Ulstad, against 
 
         Robert E. Brainard, to determine the validity of his purported 
 
         attorney's lien and also to determine the amount of attorney's 
 
         fees which Ulstad is entitled to receive based upon his 
 
         representation of Brainard in the most recent review-reopening 
 
         proceeding.
 
         
 
              The case of Robert E. Brainard against Fort Dodge 
 
         Laboratories, Inc., and its insurance carrier, Insurance Company 
 
         of North America, has been settled through a full commutation.  
 
         The only issues in the case deal with Ulstad's fee and lien.
 
         
 
              The case was heard at Fort Dodge, Iowa on September 9, 1987. 
 
         The evidence in the case consists of plaintiff's exhibits 1 
 
         through 7, defendants' exhibits A through N, testimony from 
 
         Steven E. Ort, Robert Ulstad, Robert E. Brainard and a 
 
         professional statement from Marvin E. Duckworth.  Official notice 
 
         was taken of the agency file in this proceeding.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
                                                
 
                                                         
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              The testimony presented by Brainard and Ulstad was often 
 
         conflicting.  It is sufficient to state that Brainard testified 
 
         he had not paid Ulstad for any work performed in connection with 
 
         the second review-reopening proceeding and had no intention of 
 
         paying any fees to Ulstad.  Brainard testified that he felt 
 
         Ulstad was not entitled to receive any fees because Ulstad had 
 
         acted unethically and had not represented him properly.  Ulstad 
 
         denied wrongdoing and seeks payment of the full amount of the 
 
         contractual fee as provided by the written fee contract which is 
 
         in the record as exhibit 2.
 
         
 
              The pleadings, decisions and other information in the agency 
 
         file show the following information to be well established.  On 
 
         November 20, 1981, Robert E. Brainard injured his lower back in 
 
         an industrial accident for which the employer admitted liability.  
 
         A form 2 filed on February 19, 1982 shows that 4 3/7 weeks of 
 
         temporary total disability compensation and $4,552.90 in medical 
 
         benefits had been paid.  Brainard returned to work on December 
 
         21, 1981.
 
         
 
              Brainard entered into an attorney-client relationship with 
 
         Robert L. Ulstad and signed an attorney fee contract which 
 
         provided for a one-third contingent fee (plaintiff's exhibit 1).  
 
         A petition seeking permanent partial disability compensation was 
 
         filed by Ulstad on Brainard's behalf on May 21, 1982.  Brainard 
 
         continued to perform his duties with Fort Dodge Laboratories, Inc. 
 
         until August 25, 1982, when Brainard was allegedly caught sleeping 
 
         in a supervisor's office and his employment was terminated.
 
         
 
              Brainard then obtained other employment which provided a 
 
         higher level of earnings than those he had experienced at Fort 
 
         Dodge Laboratories.
 
         
 
              A review of the agency file shows that discovery and 
 
         pre-hearing proceedings ensued in an extensive, but otherwise 
 
         relatively normal and unremarkable manner.
 
         
 
              The hearing was conducted on November 22, 1983 with Brainard 
 
         represented by William Habhab in lieu of Ulstad who was not 
 
         available.  Brainard perjured himself at the hearing by 
 
         testifying that he had not been employed since being terminated 
 
         from Fort Dodge Laboratories.  On January 17, 1984, a 
 
         review-reopening decision was issued by Deputy Industrial 
 
         Commissioner Helmut Mueller which awarded Brainard 25% permanent 
 
         partial disability.
 
         
 
              Brainard had continuing medical problems which led him to 
 
         the Sister Kenny Institute.  On May 21, 1984, Brainard underwent 
 
         extensive lumbar surgery at the Sister Kenny Institute under the 
 
         direction of Charles Burton, M.D.  Brainard was discharged from 
 
         the hospital on May 30, 1984 (defendants' exhibit C, pages 20-22) 
 
         
 
                                                
 
                                                         
 
              Brainard executed a second attorney fee contract with Ulstad 
 
         which was substantially identical to the first (plaintiff's 
 
         exhibit 2).  On June 11, 1984, a second review-reopening petition 
 
         was filed by Ulstad on Brainard's behalf.
 
         
 
              Upon recommendation from Dr. Burton for claimant to receive 
 
         pain clinic care, Brainard was referred to the Mercy Hospital 
 
         Medical Center Pain Clinic in May, 1985 (defendants' exhibit C, 
 
         pages 17-19).  Brainard underwent further spinal surgery in the 
 
         summer of 1985.
 
         
 
              In August, 1985, Ulstad and Marvin Duckworth, counsel for 
 
         Fort Dodge Laboratories, Inc. and the Insurance Company of North 
 
         America, negotiated a settlement of claimant's case which provided 
 
         terms essentially the same as those which were eventually 
 
         approved, except that the final lump sum payment was only $10,000 
 
         rather than $20,000.  Duckworth had difficulty obtaining current 
 
         medical reports when he was preparing the settlement documents.  
 
         In December, 1985, settlement documents were prepared and 
 
         submitted to Brainard for signature and also to this agency 
 
         without current medical reports.  Ulstad was not then practicing 
 
         law due to the suspension of his license from November 13, 1985 
 
         until August 1, 1987.  The settlement was a structured settlement 
 
         which provided the following benefits to Brainard:
 
         
 
              1.  Thirty thousand dollars ($30,000.00) to be paid upon 
 
         approval of the settlement;
 
         
 
              2.  Two hundred seventy-one dollars ($271.00) per month for 
 
         a period of ten years; and,
 
         
 
              3.  Twenty thousand dollars ($20,000.00) at the expiration 
 
         of the ten year period.
 
         
 
              Brainard signed the settlement documents and they were 
 
         presented to Deputy Industrial Commissioner Steven E. Ort for 
 
         approval.  The first set of settlement documents provided that 
 
         $20,000.00 of the initial payment was to be held in escrow 
 
         pending determination of the amount of Ulstad's fees (defendants' 
 
         exhibit C, pages 6-15).  Ort rejected the proposed settlement 
 
         (defendants' exhibit A).  Ort indicated that the fee dispute 
 
         would be heard by the time the settlement application was finally 
 
         determined.  On April 29, 1986, Ort approved a settlement 
 
         arrangement substantially identical to the one rejected in 
 
         January, 1986, except that it allowed the proceeds to be paid 
 
         directly to Brainard without any provision for attorney fees or 
 
         an attorney's lien (defendants' exhibits D and E).
 
         
 
              Prior to the time that the first settlement was rejected, 
 
         Brainard had written to the agency setting forth objections to 
 
         paying any fees to Ulstad.  The letter was filed December 19, 
 
         1985.  Pursuant to instructions from the agency, Brainard filed a 
 
         petition on January 7, 1986 seeking to avoid payment of fees.  On 
 
         that same date, Ulstad filed a document with the agency entitled 
 
         "Attorney's Lien."  Ulstad answered Brainard's petition on 
 
                                                
 
                                                         
 
         January 9, 1986.  The case proceeded to a pre-hearing conference 
 
         and was scheduled for hearing to be held on September 24, 1986.  
 
         On September 8, 1986, Brainard dismissed his petition.  Ulstad 
 
         then filed a petition to determine fees and the hearing of 
 
         September 9, 1987 resulted.  The agency has not yet made any 
 
         ruling upon the amount of Ulstad's lien.
 
         
 
              Plaintiff's exhibit 5 is a copy of Ulstad's office file 
 
         dealing with Brainard's cases.  It measures five inches in 
 
         thickness.  A substantial amount of work was performed on those 
 
         cases as can also be observed from examining the contents of the 
 
         exhibit.
 
         
 
              On March 3, 1986, Tito Trevino entered his appearance on 
 
         behalf of Brainard.  He assisted in completing the settlement 
 
         which was eventually approved.  On April 4, 1986, Ulstad withdrew 
 
         from representing Brainard.
 
         
 
                            APPLICABLE LAW AND ANALYSIS
 
         
 
              Section 86.39 of the Iowa Code states:
 
         
 
              All fees or claims for legal, medical, hospital, and burial 
 
              services rendered under this chapter and chapters 85 and 87 
 
              shall be subject to the approval of the industrial 
 
     
 
                            
 
                                                         
 
              commissioner, and no lien for such service shall be 
 
              enforceable without the approval of the amount thereof by 
 
              the industrial commissioner.  For services rendered in the 
 
              district court and appellate courts, the attorney's fee 
 
              shall be subject to the approval of a judge of the district 
 
              court.
 
         
 
              The factors to be considered when determining an appropriate 
 
         attorney's fee have been defined in Kirkpatrick v. Patterson, 172 
 
         N.W.2d 259, 261 (Iowa 1969) and in Disciplinary Rule 2-106, Iowa 
 
         Code of Professional Responsibility for Lawyers.  An hourly fee, 
 
         rather than a contingent fee, is generally considered appropriate 
 
         in a case where the only benefit sought is a commutation.  
 
         Paulson v. Central States Power Ltd, II Iowa Industrial 
 
         Commissioner Report, 304 (App. Decn. 1982); Baldwin v. 
 
         Carter-Waters Corp., II Iowa Industrial Commissioner Report, 16 
 
         (1981).  Where the amount of an award is reduced to present value 
 
         through a commutation, the attorney's fee should also be reduced 
 
         accordingly.  Larsen v. Haag Drug Company, I Iowa Industrial 
 
         Commissioner Report, 201 (1980).
 
         
 
              Attorney liens exist by virtue of statute as found in Iowa 
 
         Code sections 602.10116 through 602.10120.  Disciplinary Rule 
 
         9-102 also deals with the procedure to be followed when a dispute 
 
         regarding attorney's fees exists.  A recent decision of the.Iowa 
 
         Supreme Court in an attorney disciplinary proceeding indicated 
 
         that Disciplinary Rule 9-102(A)(B) was the applicable standard of 
 
         conduct.  The funds in question were the proceeds of a workers' 
 
         compensation award.  The court did not discuss the issues of 
 
         exemptions or liens.  Committee on Professional Ethics and 
 
         Conduct of the Iowa State Bar Association v. Shirley G. Steele, 
 
         414 N.W.2d 108 (Iowa 1987).
 
         
 
              According to Ort, the total present value of the settlement 
 
         agreement was approximately $58,000.  Of that amount, 
 
         approximately $3,755 represents the additional $10,000 which 
 
         Brainard negotiated for himself to be paid at the end of the 
 
         ten-year period.  This makes the present value of the package 
 
         negotiated by Ulstad approximately $54,000.  Accordingly, if 
 
         Ulstad were entitled to a full one-third fee, the amount would be 
 
         $18,000.  Ulstad did not, however, complete the settlement due to 
 
         the suspension of his license.  Under the contract, and under the 
 
         controlling law, the attorney's fees should be based upon the 
 
         fair and reasonable value of the services performed by Ulstad.  
 
         The fee contract may be considered, but it is not controlling.  A 
 
         review of defendants' exhibit K shows that the bulk of the work 
 
         performed by Ulstad was performed in connection with the first 
 
         hearing that was conducted on November 22, 1983.  Exhibit K shows 
 
         only 15 letters having been written since November 7, 1983.  
 
         Defendants' exhibit K also shows that Ulstad engaged in a number 
 
         of conferences with Brainard and Duckworth.  Ulstad also 
 
         conferred with a representative of the Social Security 
 
         Administration in order to arrange a settlement method which 
 
         would avoid any Social Security offset.  Ulstad had assisted 
 
         Brainard in obtaining Social Security disability without charging 
 
                                                
 
                                                         
 
         a fee.  Brainard has not claimed that the avoidance of the offset 
 
         as arranged by Ulstad had failed to perform its intended 
 
         purpose.
 
         
 
              While section 85.27 provides lifetime medical care to an 
 
         injured worker, there is always the issue of intervening injuries 
 
         and intervening causes which are a frequent subject of litigation 
 
         when a worker seeks to enforce that future medical care.  There 
 
         is also no accurate way to precisely predict the amount or cost 
 
         of medical care that a person may require in the future.  It is 
 
         certainly proper for an attorney to receive a fee for recovering 
 
         payment of medical expenses from an adverse party, regardless of 
 
         whether the expense has already been incurred or is an expense 
 
         which can be anticipated in the future.  If the negotiated amount 
 
         for future medical exceeds the actual expense, the attorney has 
 
         provided a quite valuable service for the client in negotiating 
 
         that lump sum payment for future medical.
 
         
 
              The structured settlement, the basis of which was negotiated 
 
         by Ulstad, is certainly more favorable to claimant than would 
 
         have been the regular weekly payment of weekly compensation of an 
 
         equal amount of permanent partial disability due to the Social 
 
         Security offset.  Further, in view of the Medicaid availability 
 
         to the claimant, the lump sum representing future medical was 
 
         also a likely benefit to Brainard.  When all the factors which go 
 
         into determining a reasonable attorney's fee are considered, it 
 
         is determined that a reasonable fee for the services performed by 
 
         Robert L. Ulstad in this case would be an amount having a present 
 
         value of $10,000 on April 29, 1986.
 
         
 
              It should be noted that Brainard's credibility has been 
 
         severely impaired by the perjury he practiced at the first 
 
         hearing, a number of conflicting statements he has made through 
 
         the course of this case and the fact that he seeks to avoid 
 
         payment of any fee whatsoever to Ulstad, despite the fact that 
 
         Ulstad did provide a very substantial benefit to Brainard.  It 
 
         should likewise be noted that Ulstad's professional reputation 
 
         and standing has been severely impaired by the suspension of his 
 
         license.  It was necessary for Brainard to obtain services of 
 
         other counsel in order to complete the settlement which had been 
 
         initiated by Ulstad.
 
         
 
              The manner in which Ulstad's lien notice was handled has 
 
         presented a quite substantial problem in this case.  A lien is a 
 
         security interest, it is not a transfer of ownership.  The 
 
         purpose of an attorney's lien, like an artisan's lien or 
 
         mechanic's lien, is to permit one who has in essence created a 
 
         res to be paid from that res.
 
         
 
              It appears that Ulstad complied with Iowa Code section 
 
         602.10116(3) when he mailed his attorney's lien to Marvin 
 
         Duckworth as shown by the proof of service shown on the second 
 
         page of the document.  Section 86.39, in particular the last 
 
         phrase thereof which states, "...and no lien for such service 
 
         shall be enforced without the approval of the amount thereof by 
 
                                                
 
                                                         
 
         the industrial commissioner" comes into play.  If approval of the 
 
         amount of the lien is a prerequisite to giving notice under Code 
 
         section 602.10116(3), Ulstad has no lien until the amount of the 
 
         lien is affixed in this decision.  If approval is a prerequisite, 
 
         the failure of the agency to set the amount of any claimed lien 
 
         effectively denies the attorney the ability to obtain a lien.  
 
         The agency does not have any specific rules setting forth the 
 
         procedure to be used when seeking the approval of the amount of 
 
         an attorney's lien.
 
         
 
              It is sufficient to say that sections 86.39 and 602.10116 
 
         through 602.10120 of The Code and Disciplinary Rule 9-102 are not 
 
         readily reconcilable, particularly if obtaining the approval of 
 
         the amount of an attorney's lien is a contested case proceeding, 
 
         with the provisions of Chapter 17A of The Code of Iowa and 
 
         approval is delayed until after the case in chief is determined.  
 
         A lien in the amount of the fees awarded is now specifically 
 
         approved to secure payment of Ulstad's fees.
 
         
 
              The normal rule when dealing with contingency fees is that 
 
         the attorney fee is paid at the same time as the recovery is paid 
 
         to the client.  Such cannot be done in this case since Brainard 
 
         has already received the initial lump sum payment and has 
 
         indicated that he will not voluntarily pay anything to Ulstad.  
 
         As a practical matter, if Ulstad is to be paid at all for the 
 
         services he rendered in this case, the payment will have to come 
 
         directly from the employer or its insurance carrier.
 
         
 
              The difficult question to resolve is whether defendants are 
 
         responsible for payment of the April 29, 1986 equivalent of 
 
         $10,000 to Ulstad in a lump sum at the present time in view of 
 
         the notice of lien which he provided to them, with defendants to 
 
         then adjust Brainard's remaining payments accordingly to 
 
         compensate for the lump sum payment to Ulstad or whether Ulstad 
 
         must receive his payments from the remaining amounts due to 
 
         Brainard.  In view of the fact that the amount of Ulstad's lien 
 
         was not previously approved, the latter is determined to be the 
 
         appropriate course.
 
         
 
              It is therefore determined that the $10,000 fee provided for 
 
         Ulstad in this decision was due and payable to Ulstad on the same 
 
         date as the settlement was approved, namely, April 29, 1986.  It 
 
         is further determined that Robert L. Ulstad is approved a lien 
 
         against the amounts payable to Robert Brainard, said lien being 
 
         in the amount of $10,000.  In view of the events that have 
 
         thusfar transpired, it is not possible for Ulstad to receive 
 
         those fees directly from the insurance carrier at the same time 
 
         as the benefits are paid to Brainard.  Ort found the present 
 
         value of the annuity to have been $20,562.  Such valuation is 
 
         accepted as being substantially correct and is used as the basis 
 
         for the further computations made herein.  The sum of $271 per 
 
         month has a present value of $20,562.  The final lump sum of 
 
         $20,000 has a present value of $7,711.  The total value of the 
 
         settlement was therefore $58,273.  Ulstad's $10,000 in attorney's 
 
         fees represents 17.16% of the total.  Accordingly, Ulstad should 
 
                                                
 
                                                         
 
         have received $5,148 at the time the initial lump sum was paid, 
 
         $46.50 from each monthly payment and $3,432 at the time the final 
 
         lump sum is paid.  For purposes of allowing the parties time in 
 
         which to adjust payment methods, the provisions of this order are 
 
         determined to become effective with all payments due in or after 
 
         the month of May, 1988.  The final payment of $3,432, payable in 
 
         1996, shall be paid to Ulstad at the time the final $20,000 
 
         payment comes due.  The monthly sum of $46.50 shall be paid to 
 
         Ulstad monthly as the payments to Brainard come due.
 
         
 
              An additional monthly amount is needed to provide for the 
 
         amounts which should have been paid to Ulstad up to the present 
 
         time.  As of April 29, 1988, two full years will have passed 
 
         since the settlement was approved.  Ulstad is therefore entitled 
 
         to a sum which, as of April 29, 1988, has a value equal to a sum 
 
         which had a present value of $5,148 on April 29, 1986.  That sum 
 
         is determined by applying 10% interest, compounded annually, to 
 
         an initial lump sum of $5,148 payable on April 29, 1986.  This 
 
         computes to $6,229.08 payable on April 29, 1988.  Applying the 
 
         commutation tables to $46.50 per month payable over 24 months 
 
         provides a present value of $1,089.62 for the monthly payments if 
 
         computed as of April 29, 1986.  Again applying 10% interest, 
 
         compounded annually, this provides a total value of $1,318.44 as 
 
         of April 29, 1988.  The sum of the present value of the past due 
 
         payments to Ulstad, computed as of April 29, 1988, is therefore 
 
         $7,547.52.
 
         
 
              Eight years remain to be paid in monthly payments.  That 
 
         represents a period of 416 weeks and provides a factor of 286.1694 
 
         under the commutation tables.  During those eight years, Ulstad is 
 
         entitled to receive an amount which is equal to the sum of 
 
         $7,547.52 if it was paid to him on April 29, 1988.  The sum of 
 
         $7,547.52 divided by 286.1694 weeks equals $26.374308 per week. 
 
 
 
                            
 
                                                         
 
         When converted to a monthly figure, it is $114.29 per month.  
 
         Ulstad should therefore be paid an additional $114.29 per month, 
 
         in addition to the previous entitlement of $46.50 per month, in 
 
         order to recover the full amount of fees awarded in this case.  
 
         The monthly total payable to Ulstad is $160.79.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  A reasonable fee for the services performed by Robert L. 
 
         Ulstad on behalf of Robert Brainard in the second 
 
         review-reopening proceeding is a sum having a present value of 
 
         $10,000 computed as of April 29, 1986.  That sum is equivalent to 
 
         17.16% of all amounts to be paid to Brainard under the structured 
 
         settlement agreement which was approved as part of the overall 
 
         settlement package.
 
         
 
              2.  If the amounts due to Ulstad had been paid at the 
 
         appropriate times, he would have received $5,148 in an initial 
 
         lump sum, $46.50 per month until the final lump sum is paid and a 
 
         final amount of $3,432 upon payment of the final $20,000 lump 
 
         sum.
 
         
 
              3.  The sum of $6,229.08 payable on April 29, 1988 is the 
 
         equivalent of the sum of $5,148 payable on April 29, 1986.
 
         
 
              4.  The sum of $1,318.44 paid on April 29, 1988 is equal to 
 
         $46.50 paid over a period of two years commencing in April, 
 
         1986.
 
         
 
              5.  The sum of $7,547.52, payable on April 29, 1988, is 
 
         equal to the value of all amounts which would have become payable 
 
         to Ulstad prior to the month of May, 1988.
 
         
 
              6.  When divided over the remaining eight years of the 
 
         annuity, the sum of $7,547.52 has a present value that is equal 
 
         to $114.29 per month paid each month for the remainder of the 
 
         annuity portion of the structured settlement, commencing with the 
 
         month of May, 1988.
 
         
 
              7.  Ulstad is entitled to a lien upon the payments payable 
 
         to Brainard in the future in an amount equal to the fees that are 
 
         awarded in this decision.
 
         
 
              8.  The professional statement from Marvin Duckworth is 
 
         fully credible.
 
         
 
              9.  The computations as described by Steven E. Ort in his 
 
         testimony as the same relate to the present value of the various 
 
         portions of the structured settlement agreement are accepted as 
 
         correct.
 
         
 
              10.  The testimony of Robert Brainard is not reliable.
 
         
 
              11.  The testimony of Robert L. Ulstad is accepted as being 
 
         generally correct in regard to the events that have occurred.
 
                                                
 
                                                         
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Approval by the industrial commissioner of the amount of 
 
         any attorney's lien is a prerequisite to the lien being 
 
         enforceable against an employer or an insurance carrier.
 
         
 
              3.  Robert L. Ulstad is awarded attorney fees having a 
 
         present value of $10,000 computed as of April 29, 1986.  Ulstad's 
 
         lien upon the amounts payable to Robert Brainard under the 
 
         structured settlement agreement is approved in an amount equal to 
 
         the fees which are awarded to Ulstad herein.
 
         
 
              4.  Ulstad should receive the fees at the rate of 17.16% of 
 
         all sums paid in the future as and for the proportionate amount 
 
         of the recovery which is allocable to his fees.  Ulstad is also 
 
         entitled to receive an additional amount of $114.29 per month 
 
         payable during the remaining portion of the annuity part of the 
 
         structured settlement to provide an amount which is substantially 
 
         equal to the amounts that would have been paid to him if he had 
 
         received 17.16% of all payments which have been paid to Brainard 
 
         prior to the month of May, 1988.
 
         
 
              5.  After making adjustments to convert all sums to present 
 
         value, the lien shall be enforced by paying to Ulstad the sum of 
 
         $160.79 per month commencing with the month of May, 1988 and 
 
         continuing each month for the remaining eight-year term of the 
 
         annuity portion of the structured settlement agreement.  Ulstad 
 
         shall also receive the sum of $3,432 in a lump sum payable from 
 
         the $20,000 final lump sum settlement which is part of the 
 
         structured settlement agreement.  The remainder should be paid to 
 
         Brainard.
 
         
 
                                     ORDER
 
         
 
              IT IS THEREFORE ORDERED that attorney's fees for Robert L. 
 
         Ulstad are fixed at an amount having a present value of $10,000 
 
         on April 29, 1986.
 
         
 
              IT IS FURTHER ORDERED that Ulstad shall have an attorney's 
 
         lien upon the settlement proceeds in an amount having a present 
 
         value of $10,000 on April 29, 1986.
 
         
 
              IT IS FURTHER ORDERED that Fort Dodge Laboratories, Inc. and 
 
         Insurance Company of North America satisfy Ulstad's lien by 
 
         paying to Ulstad, as and for attorney's fees rendered on behalf 
 
         of Robert Brainard, the sum of one hundred sixty and 79/100 
 
         dollars ($160.79) per month commencing in the month of May, 1988 
 
         and continuing each month thereafter throughout the annuity 
 
         portion of the structured settlement agreement and an additional 
 
         sum of three thousand four hundred thirty-two and 00/100 dollars 
 
         ($3,432.00) at the time of the final twenty thousand dollar 
 
                                                
 
                                                         
 
         ($20,000) lump sum payment due at the expiration of the ten-year 
 
         annuity provided by the structured settlement.
 
         
 
              IT IS FURTHER ORDERED that the employer and insurance 
 
         carrier shall pay the amounts to Ulstad from the amounts which 
 
         would be payable to Robert Brainard under the provisions of the 
 
         structured settlement.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against Robert E. Brainard pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 25th day of March, 1988.
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Building
 
         P.O. Box 1680
 
         Fort Dodge, Iowa  50501
 
         
 
         Mr. William H. Habhab
 
         Attorney at Law
 
         1216A Central Avenue
 
         Fort Dodge, Iowa  50501
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa  50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1000, 1001, 1001.10
 
                                            Filed March 25, 1988
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT E. BRAINARD,
 
         
 
              Employee,                               File No. 686661
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         FORT DODGE LABORATORIES, INC.,                 F I X I N G
 
         
 
              Employer,                        A T T O R N E Y ' S  F E E S
 
         
 
         and                                               A N D
 
         
 
         INSURANCE COMPANY OF                  A T T O R N E Y ' S  L I E N
 
         NORTH  AMERICA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1000, 1001, 1001.10
 
         
 
              In computing fees, all amounts were converted to present 
 
         value as of the date a full commutation settlement was approved. 
 
         The attorney was awarded an amount equal to 17.16% of the 
 
         proceeds despite a written one-third contingency fee contract.  
 
         The attorney's license was suspended prior to the time that the 
 
         settlement was completed and it was necessary for the worker to 
 
         obtain other counsel.  Where a major initial lump sum had been 
 
         paid to the worker, without any being paid to the attorney, the 
 
         attorney was provided payment from the portions of the structured 
 
         settlement which remain unpaid at the time the decision was 
 
         issued.  A lien in an amount equal to the fees awarded was also 
 
         approved.
 
         
 
         
 
 
         
 
 
 
 
 
                                          1000
 
                                          Filed July 28, 1989
 
                                          DAVID E. LINQUIST
 
             
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        ROBERT E. BRAINARD,
 
        
 
            Claimant,
 
                                                  File No. 686661
 
        vs.
 
                                                    A P P E A L
 
            Employer,
 
                                                  D E C I S I O N
 
        and
 
        
 
        INSURANCE COMPANY OF
 
        NORTH AMERICA,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        1000
 
        
 
            Claimant's attorney instituted action, but his license to 
 
        practice was suspended prior to settlement. Claimant sought 
 
        to avoid paying his attorney any fee. Deputy's detailed 
 
        analysis and calculations, which included reducing the 
 
        attorney's fee for that portion of the settlement the attorney 
 
        was not involved in and calculating current value of the fee, 
 
        was approved.
 
        
 
 
            
 
 
 
 
 
 
 
                  
 
                                            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         PATRICK ALAN GRAY,
 
         
 
              Claimant,
 
                                                     File No. 687229
 
         
 
         VS.
 
                                                       A P P E A L
 
          
 
          GRIFFIN WHEEL COMPANY,
 
                                                     D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from a review-reopening decision awarding 
 
         claimant benefits for an additional industrial disability of ten 
 
         percent of the body as a whole.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing; claimant's exhibits 4 through 8; and 
 
         defendant's exhibits 3 through 6 (claimant's exhibit 8 is the 
 
         same as defendant's exhibit 5).  Official notice was taken of the 
 
         file.  Both parties filed briefs on appeal.
 
         
 
                                   ISSUES
 
         
 
              Defendant states the issues on appeal as:
 
         
 
              I.  Is deputy commissioner's finding that claimant was not 
 
         rehired due to his injury unsupported by the evidence?
 
         
 
              II.  Can the defendant be required to rehire employee 
 
         because said employee had previously suffered a work-related 
 
         injury, when said employee would otherwise not be rehired because 
 
         of poor deportment and mediocre job performance?
 
         
 
              III.  Did the deputy commissioner err in his application of 
 
         McSpadden, Blacksmith holdings to the facts and evidence 
 
         adduced?
 
         
 
              IV.  Was the award of an additional 10% industrial 
 
         disability excessive?
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not reiterated 
 

 
         
 
         
 
         
 
         GRAY V. GRIFFIN WHEEL COMPANY
 
         Page   2
 
         
 
         
 
         herein.
 
         
 
              Briefly stated, claimant sustained an injury to his left 
 
         shoulder on November 2, 1981 arising out of and in the course of 
 
         his employment with defendant.  Claimant was subsequently 
 
         released to return to work on March 15, 1982.  However, claimant 
 
         was unable to return to work at that time because he was on 
 
         layoff status.  Defendant had conducted a general layoff on 
 
         January 2, 1981 which included claimant and did not begin 
 
         recalling workers until October 1983.  A review-reopening hearing 
 
         was held on December 13, 1982.  In the decision filed thereafter 
 
         claimant was awarded 25 weeks of permanent partial disability 
 
         benefits for a five percent permanent disability of the body as a 
 
         whole.  The deputy based his determination on his own experience 
 
         rather than on the medical evidence which at that time suggested 
 
         a zero percent permanent impairment using the AMA Guides for 
 
         evaluation of permanent impairment.  No appeal was taken from 
 
         that decision.  When defendant began recalling workers in October 
 
         1983 it did not contact those workers who had lost their 
 
         seniority and had not notified the defendant of their 
 
         availability for return to work.  Defendant states claimant's 
 
         seniority ended on July 2, 1982.
 
         
 
              Claimant waited for defendant to call him back to work but 
 
         they did not do so.  He attempted to contact the personnel 
 
         director by telephone but was unsuccessful.  He also went to the 
 
         plant but was prevented from entering by a guard.  On April 16, 
 
         1984 claimant sent a letter to defendant requesting an 
 
         application or that he be rehired.  Defendant acknowledges 
 
         receipt of this letter but states that at that time they were not 
 
         accepting applications.
 
         
 
              At the time claimant was working for defendant he was 
 
         earning $7.00 to $8.00 per hour and working 40 hours per week.  
 
         Claimant currently is employed as a full time auto mechanic and 
 
         is earning $4.00 per hour.
 
         
 
              Bruce L. Sprague, M.D., opines that claimant currently has a 
 
         three percent impairment of the upper extremity because of the 
 
         lack of full abduction.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision  are
 
         appropriate to the issues and the evidence.
 
         
 
         
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has not established by a preponderance of the 
 
         evidence a change in his medical condition.  However,  claimant 
 
         has established by a preponderance of the evidence that defendant 
 
         refused him employment because of his work-related injury 
 
         resulting in a reduction in his earnings.  The analysis of this 
 
         .issue set out in the review-reopening decision is thorough and 
 
         accurate.  Therefore, it is adopted herein.
 
         
 
              Claimant is entitled to additional benefits for industrial 
 

 
         
 
         
 
         
 
         GRAY V. GRIFFIN WHEEL COMPANY
 
         Page   3
 
         
 
         
 
         disability equal to ten percent of the body as a whole.
 
         
 
              The finding of fact, conclusions of law and order are 
 
         adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On November 2, 1981 claimant received an injury arising 
 
         out of and in the course of his employment with defendant.
 
         
 
              2.  On February 25, 1983 it was found that as a result of 
 
         his injury claimant suffered an industrial disability equal to 
 
         five percent of the body as a whole.
 
         
 
              3.  At the time of hearing in the first proceeding claimant 
 
         was on layoff status due to a reduction in defendant's labor 
 
         force.
 
         
 
              4.  At the time of hearing in the first proceeding it was 
 
         anticipated that claimant would return to work for defendant when 
 
         the labor force was returned to full status.
 
         
 
              5.  Defendant's labor force has been returned to 
 
         substantially full status, but claimant was not called back to 
 
         work.
 
         
 
              6.  Claimant was not called back to work by defendant 
 
         because of his work injury.
 
         
 
              7.  Claimant has suffered an actual loss of earning because 
 
         defendant will not return him to its employ.
 
         
 
              8.  Claimant's industrial disability has increased by ten 
 
         percent since the decision of February 25, 1983.
 
         
 
              9.  Claimant's rate of compensation is $180.54.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         there has been a significant change in his disability since the 
 
         decision of February 25, 1983.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         as a result of the significant change in his disability that he 
 
         has suffered an additional industrial disability of ten percent 
 
         of the body as a whole.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay unto claimant fifty (50) weeks of 
 
         compensation at his rate of one hundred eighty and 54/100 dollars 
 
         ($180.54) commencing from the date hereof until paid in full.
 
         
 
              That the costs of this action are taxed to the defendant.
 
         
 
              That defendant file a claim activity report upon payment of
 

 
         
 
         
 
         
 
         GRAY V. GRIFFIN WHEEL COMPANY
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 18th day of February, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                                 ROBERT C. LANDESS
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa 52632-1066
 
         
 
         Mr. John E. Kultala
 
         Attorney at Law
 
         511 Blondeau Street
 
         Keokuk, Iowa 52632
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                                 1402.40 - 1803
 
                                                 Filed February 18, 1987
 
                                                 ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         PATRICK ALAN GRAY,
 
         
 
              Claimant,
 
                                                       File No. 687229
 
         VS.
 
                                                         A P P E A L
 
         
 
         GRIFFIN WHEEL COMPANY,
 
                                                       D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         1402.40 - 1803
 
         
 
              Deputy affirmed in award of additional permanent disability 
 
         benefits where the claimant established by a preponderance of the 
 
         evidence that defendant refused him employment because of his 
 
         work-related injury resulting in a reduction in his earnings.
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES BROWN,
 
         
 
              Claimant,
 
                                                     File No. 688217
 
         vs.
 
                                                       A P P E A L
 
         DES MOINES ASPHALT &
 
         PAVING COMPANY,                             D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       JUN 29 1988
 
         UNITED STATES FIDELITY
 
         AND GUARANTY COMPANY,                IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening decision denying 
 
         additional healing period benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing, claimant's exhibits 1 through 9 and 
 
         defendants' exhibits 1 through 3.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                    ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  Whether or not Claimant is entitled to healing period 
 
              from May 11, 1982 until September 6, 1983.
 
         
 
              2.  Whether the Claimant was entitled for [sic] healing 
 
              period from March 15, 1985 to December 16, 1985.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be set forth 
 
         herein.
 
         
 
                                 APPLICABLE LAW
 
         
 
              The citations of law contained in the review-reopening 
 
         decision are appropriate to the issues and evidence.
 
         
 
                                                
 
                                                         
 
                                     ANALYSIS
 
         
 
              The analysis of the deputy in conjunction with the issues 
 
         and evidence presented is adequate and accurate and adopted 
 
         herein.
 
         
 
              The findings of fact and conclusions of law and order of the 
 
         deputy is adopted herein.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  On September 9, 1981 claimant received an injury to his 
 
         right arm.
 
         
 
              2.  As a result of the injury claimant was off work from 
 
         September 9, 1981 to May 11, 1982.
 
         
 
              3.  Claimant returned to work for defendants on May 11, 1982 
 
         and voluntarily quit on July 9, 1982.
 
         
 
              4.  Claimant quit working for defendants on July 9, 1982 for 
 
         personal or unknown reasons.
 
         
 
              5.  On August 6, 1982 claimant obtained a partial 
 
         commutation of benefits at which time he represented to the 
 
         industrial commissioner that his healing period terminated May 
 
         10, 1982.
 
         
 
              6.  As a result of his injury claimant suffered a permanent 
 
         partial impairment of his right upper extremity equal to ten 
 
         percent.
 
         
 
              7.  Between May 10, 1982 and November 18, 1982 claimant did 
 
         not seek medical treatment or consultation.
 
         
 
              8.  Claimant consulted a physician on November 18, 1982.
 
         
 
              9.  Between July 9, 1982 and September 6, 1983 claimant was 
 
         capable of engaging in employment substantially similar to that 
 
         in which he was engaged at the time of his injury.
 
         
 
              10.  On September 6, 1983 claimant sought additional medical 
 
         treatment which resulted in surgery to resect the distal clavicle 
 
         of his right shoulder .
 
         
 
              11.  As a result of his surgery, claimant was temporarily 
 
         totally disabled from September 6, 1983 to July 1, 1984.
 
         
 
              12.  On July 1, 1984 claimant returned to work for Weaver 
 
         Construction Company.
 
         
 
              13.  Claimant has been less than candid.
 
         
 
              14.  Claimant returned to work on July 1, 1984 without a 
 
         release from his doctor.
 
                                                
 
                                                         
 
         
 
              15.  Claimant failed to disclose to his doctor that he 
 
         returned to work on July 1, 1984.
 
         
 
              16.  In December 1984 claimant underwent surgery for chronic 
 
         tendonitis and bursitis of the right shoulder.
 
         
 
              17.  The opinion of Dr. Crouse that claimant's second 
 
         surgery was the result of his injury of September 9, 1981 is not 
 
         reliable because of claimant's failure to provide Dr. Crouse with 
 
         a complete and accurate history of his activities prior thereto.
 
         
 
              18.  Claimant has been paid all permanent partial disability 
 
         benefits to which he is entitled.
 
         
 
              19.  Claimant has been paid the following temporary total 
 
         and/or healing period benefits:
 
         
 
              September 10, 1981 to May 10, 1982
 
              August 7, 1983 to May 10, 1984
 
              September 26, 1984 to May 23, 1986
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         he is entitled to temporary total disability benefits from 
 
         September 6, 1983 to July 1, 1984.
 
         
 
              Defendants are entitled to credit against any additional or 
 
         future benefits due claimant in an amount equal to the excess 
 
         benefits they have paid to claimant.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing from these proceedings.
 
         
 
              That all costs are taxed to claimant including the cost of 
 
         the transcription of the hearing proceeding.
 
         
 
              Signed and filed this 29th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
                                                
 
                                                         
 
         Mr. David S. Wiggins
 
         Attorney at Law
 
         700 West Towers
 
         1200 35th Street
 
         West Des Moines, Iowa  50265
 
         
 
         Mr . Thomas E. Leahy
 
         Mr. Ross H. Sidney
 
         Attorneys at Law
 
         2222 Grand Avenue
 
         P. O. Box 10434
 
         Des Moines, Iowa  50306
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1801 - 1802
 
                                            Filed June 29, 1988
 
                                            DAVID E. LINQUIST
 
                   
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER         
 
         
 
         JAMES BROWN,
 
         
 
              Claimant,
 
         
 
         vs.                                             File No. 688217
 
         
 
         DES MOINES ASPHALT &                              A P P E A L
 
         PAVING COMPANY,
 
                                                         D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         UNITED STATES FIDELITY
 
         AND GUARANTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1801 - 1802
 
         
 
              Claimant failed to establish entitlement to further healing 
 
         period or temporary total disability benefits.  Claimant found to 
 
         be less than candid.
 
 
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES BROWN,
 
         
 
              Claimant,                              File No. 688217
 
         
 
         VS.                                          R E V I E W -
 
         
 
         DES MOINES ASPHALT &                       R E 0 P E N I N G
 
         PAVING COMPANY,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         UNITED STATES FIDELITY
 
         AND GUARANTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by James 
 
         Brown, claimant, against Des Moines Asphalt and Paving Company, 
 
         employer, and United States Fidelity and Guaranty Company, 
 
         insurance carrier, for the recovery of further benefits as the 
 
         result of an injury he received arising out of and in the course 
 
         of his employment on September 9, 1981.  This case was heard 
 
         October 7, 1986 at the office of the Division of Industrial 
 
         Services in Des Moines, Iowa.  It was considered fully submitted 
 
         at the conclusion of the hearing.
 
         
 
              The record consists of the testimony of claimant, Merlin F. 
 
         Hopper, Frank Moyer and Larry S. Brown; claimant's exhibits 1 
 
         through 9; and, defendants' exhibits 1 through 3.
 
         
 
                             STIPULATIONS AND ISSUES
 
         
 
              Pursuant to the prehearing report and order approving the 
 
         same, the parties stipulated as follows:
 
         
 
              1.  Claimant received an injury arising out of and in the 
 
         course of his employment on September 9, 1981;
 
         
 
              2.  Claimant's injury caused temporary total or healing 
 
         period disability and ten percent permanent partial disability to 
 
         the right upper extremity; and,
 
              
 
              3.  Claimant's rate of compensation is $264.30.
 
         
 
              The issues to be determined in this proceeding are:
 
         
 

 
         
 
         
 
         
 
         BROWN V. DES MOINES ASPHALT & PAVING CO.
 
         Page   2
 
         
 
         
 
              1.  Whether claimant is entitled to healing period 
 
         benefits for the period from May 11, 1982 to September 6, 1983; 
 
         and,
 
         
 
              2.  Whether claimant is entitled to healing period 
 
         benefits from March 15, 1985 to December 16, 1985.
 
         
 
                             EVIDENCE PRESENTED
 
         
 
              Claimant testified that he was a truck driver for defendant. 
 
          He explained in detail his job duties and the use of his right 
 
         arm to perform them.  Claimant advised that defendant's business 
 
         was that of an asphalt paver and seasonal in nature.  He said he 
 
         injured his right arm in September 1981 about three-fourths of 
 
         the way through the season.
 
         
 
              Claimant first sought treatment for his injury from his 
 
         family physician but later came under the care of Martin S. 
 
         Rosenfeld, D.O.  Dr. Rosenfeld apparently treated claimant 
 
         conservatively.  He last saw Dr. Rosenfeld on May 10, 1985.  
 
         Claimant said he returned to work in the spring of 1985 but 
 
         contended he could not handle the job.  He said he then moved to 
 
         Cedar Falls, Iowa.
 
         
 
              In November 1982 claimant consulted James E. Crouse, M.D.  
 
         Dr. Crouse suggested the possibility of surgery to excise 
 
         claimant's right distal clavicle.  Surgery was performed in 
 
         October 1983.  Claimant said he had a second surgery in December 
 
         1984.  For a period of time in July 1984 claimant worked for 
 
         Weaver Construction Co.  Claimant said he was released for light 
 
         duty work following his December 1984 surgery on March 15, 1985.  
 
         Claimant said he sought work from defendant but was not hired 
 
         back.  He said other efforts to find light work were 
 
         unsuccessful.  Claimant contended he had a setback in his 
 
         recovering from the second surgery in April 1985 while lifting 
 
         weights.
 
         
 
              On cross-examination claimant admitted he had been 
 
         represented in this matter since May 1982.  He denied making 
 
         representations he could work between May 1982 and September 
 
         1983.  He admitted he did not seek medical treatment from May 
 
         until November 1982.  Claimant stated he went to defendant 
 
         following his light duty release in March 1985 but did not tell 
 
         them he was available for light duty work.
 
         
 
              Claimant stated he worked for Weaver Construction Company in 
 
         July 1983 or 1984.  Claimant said he received a full release to 
 
         return to work on December 16, 1985.
 
         
 
              Merlin F. Hopper testified that he is the vice president in 
 
         charge of sales for defendant.  He said his duties also include 
 
         overseeing employees and some work with workers' compensation 
 
         claims.  He said he has followed claimant's injury since 
 
         September 1981.
 
         
 
              Mr. Hopper advised that claimant returned to work in May 
 
         1982 for a short period of time.  He said he did not know why 
 
         claimant left his employment with defendant and has had no 
 
         contact with him until April 1986.  He said that the defendant 
 

 
         
 
         
 
         
 
         BROWN V. DES MOINES ASPHALT & PAVING CO.
 
         Page   3
 
         
 
         
 
         received no notice that claimant could return to light duty work 
 
         in March 1985.  He said defendant would have had light duty work 
 
         available for claimant within the light duty restrictions.
 
         
 
              He said that claimant came looking for a truck driving job 
 
         in April 1986.  No such jobs were available at the time, but Mr. 
 
         Hopper checked on claimant's driving record nonetheless.  The 
 
         driving record is in evidence as defendants' exhibit 3.  On 
 
         cross-examination Mr. Hopper stated that claimant would not have 
 
         been hired due to his driving record.
 
         
 
               Frank Moyer testified that he is employed by defendant as a 
 
         purchasing agent, truck foreman, and shop foreman.  He said 
 
         claimant returned to work following his injury in may 1982.  In 
 
         July 1982 claimant called in to work reporting he would be absent 
 
         due to appointments with lawyers.  Claimant did not report to 
 
         work thereafter.  Mr. Moyer stated that after claimant returned 
 
         to work he reported soreness in his shoulder but did not request 
 
         special consideration.
 
         
 
              Larry S. Brown testified that he is a claims adjuster for 
 
         the insurance carrier.  He stated that he took over management of 
 
         claimant's file from another employee.  He said he had reviewed 
 
         the file and found no reference to a request for additional 
 
         benefits for the period from May 1982 to September 1983.  He 
 
         contended that normal office procedure would have been to note in 
 
         the file any such inquiries.  Mr. Brown advised that the file 
 
         reflected that in July 1983 there was a conversation with 
 
         claimant's attorney about continued problems with claimant's 
 
         shoulder.
 
         
 
              Claimant's exhibit 1 is the deposition testimony of James E. 
 
         Crouse, M.D., given September 30, 1986.  Dr. Crouse advised that 
 
         he is an orthopedic surgeon practicing in Waterloo, Iowa.  The 
 
         doctor reported that his first contact with claimant was November 
 
         18, 1982 at which time he took a history from and examined 
 
         claimant.  Based upon that history and examination Dr. Crouse 
 
         diagnosed claimant's condition as a sprain of the 
 
         acromioclavicular joint with disruption of the cartilage in the 
 
         joint and cystic changes in the joint.  He causally related 
 
         claimant's condition to his injury of September 1981.  Dr. Crouse 
 
         believed it would be necessary to excise this distal portion of 
 
         claimant's clavicle, to relieve the shoulder problem.
 
         
 
              Dr. Crouse  said he next saw claimant on September 8, 1983. 
 
          The purpose of  this visit was further consideration of shoulder 
 
         surgery which was performed October 24, 1983.  Dr. Crouse stated 
 
         that based upon claimant's statement that he could not work and 
 
         job description, it was his opinion that claimant could not do 
 
         many of his job activities between November 1982 and October 
 
         1983.
 
         
 
              Dr. Crouse went on to testify about his follow-up care of 
 
         claimant through the fall of 1983 and spring and summer of 1984. 
 
          He said that on March 22, 1984 claimant was doing quite well 
 
         although he would have a lot of soreness in his shoulder with 
 
         lifting activity.  When claimant was seen on June 26, 1984, Dr. 
 
         Crouse diagnosed chronic impingement of the subacromial space 
 
         which he related to the injury of September 1981.  Dr. Crouse 
 

 
         
 
         
 
         
 
         BROWN V. DES MOINES ASPHALT & PAVING CO.
 
         Page   4
 
         
 
         
 
         advised that claimant was not released to return to work at that 
 
         time.  The same problem was noted August 27, 1984 at which time a 
 
         second surgery was planned.  Claimant was not released to return 
 
         to work.  The second surgery was to be for acromioplasty and 
 
         exploration of the rotator cuff.
 
         
 
              Claimant's second surgery was performed December 3, 1984.  
 
         No rotator cuff tear was found.  A portion of the acromion was 
 
         excised along with the bursa and a tight ligament was released.  
 
         The doctor indicated these procedures were necessary to treat 
 
         persistent bursitis and tendonitis.  Dr. Crouse followed claimant 
 
         through the winter of 1985.  Claimant was released to return to 
 
         light duty work on March 14, 1985.  Dr. Crouse next saw claimant 
 
         December 16, 1985, April 25, 1985, and then again in August and 
 
         October.  The doctor advised that when he saw claimant on 
 
         December 16, 1985 he had achieved maximum medical recovery.
 
         
 
              Claimant's exhibits 2 and 3 are medical reports and office 
 
         notes from Dr. Crouse.  The substance of these reports and notes 
 
         has been adequately reviewed through the doctor's testimony and 
 
         need not be set forth again.  It is interesting to note, however, 
 
         that in the doctor's letter of November 18, 1982 to claimant's 
 
         counsel, Dr. Crouse estimated claimant would need two or three 
 
         months post surgery rehabilitation before returning to work.
 
         
 
              Claimant's exhibits 4 and 5 are copies of reports from 
 
         Martin S. Rosenfeld dated February 18, 1982 and May 20, 1982 
 
         respectively.  In his first letter Dr. Rosenfeld reviews the 
 
         history of claimant's injury and his findings on physical 
 
         examination.  Dr. Rosenfeld diagnosed a traumatic blow to the 
 
         femoral branch of the brachial plexus with resolving neuritic 
 
         pain.  In his letter of May 20, 1982 the doctor noted that 
 
         claimant had residual right shoulder and right acromioclavicular 
 
         pain.  He assigned a permanent impairment of ten percent of the 
 
         right upper extremity.
 
                
 
                Claimant's exhibit 6 is a copy of the transcript of 
 
         hearing on December 9, 1982 in the Iowa Department of Job Service 
 
         hearing number 83R-VI-2180-OT.  This is reviewed in conjunction 
 
         with defendants' exhibit 2 which is a copy of a claims deputy's 
 
         decision in the same file dated September 23, 1982.  These 
 
         documents disclose that the Department of Job Service found that 
 
         claimant voluntarily quit his employment with defendant on July 
 
         9, 1982 without explanation.  In that proceeding claimant 
 
         admitted he returned to work for defendant in May 1982.  He also 
 
         admitted that he did not advise defendant as to his reason for 
 
         leaving work.  He admitted that he did not seek medical treatment 
 
         prior to leaving his employment or thereafter until November 
 
         1982.  Claimant also stated at the hearing that during the 
 
         pendency of his claim for benefits he continued to seek 
 
         employment which apparently included truck driving jobs.
 
         
 
              Claimant's exhibits 7 and 8 are his answers and 
 
         clarifications thereof to defendants' interrogatories.  These 
 
         answers provide little additional information.  It is noted that 
 
         claimant's answers filed August 1, 1984 do not disclose his July 
 
         1984 employment with Weaver Construction Co.  See interrogatory 
 
         10 and 20.  This employment was disclosed in his answers filed 
 
         September 10, 1986.  The answers to interrogatories also include 
 
         a January 7, 1985 report from Dr. Crouse.
 

 
         
 
         
 
         
 
         BROWN V. DES MOINES ASPHALT & PAVING CO.
 
         Page   5
 
         
 
         
 
         
 
              Claimant's exhibit 9 is a copy of claimant's deposition 
 
         testimony given September 20, 1984.  Claimant explains in 
 
         considerable detail the circumstances of his injury.  He also 
 
         outlines his course of treatment to date.  Claimant states he was 
 
         employed by Weaver Construction Co. in July 1983.  Claimant 
 
         testified that he did tell defendant he was having problems with 
 
         his shoulder after his return in May 1982 and that he returned to 
 
         Dr. Rosenfeld.  Claimant indicated that when he left Des Moines 
 
         in 1982 he moved to Iowa Falls and lived with a girlfriend.
 
         
 
              Defendants' exhibit 1 is a copy of a summary of compensation 
 
         .payments made to claimant.  Defendants' exhibit 3 is a copy of 
 
         claimant's driving record.  This record shows eleven traffic 
 
         convictions including OMVUI from July 28, 1978 to January 31, 
 
         1986.  Two license revocations for alcohol related problems, an 
 
         April 23, 1985 accident, and a December 23, 1985 license 
 
         suspension.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Analysis of this case must begin with what appears to be 
 
         some degree of inconsistency in both claimant's version of the 
 
         facts and his theories of recovery.  First, claimant argues that 
 
         he is entitled to healing period benefits commencing May 11, 1982 
 
         and continuing to September 6, 1983.  He contends that none of 
 
         the requirements of section 85.34(l) were met during this period 
 
         of time.  He argues this position notwithstanding his August 6, 
 
         1982 application to the industrial commissioner for a partial 
 
         commutation of benefits in which he and his counsel represented 
 
         that the period of his disability had been definitely determined 
 
         as of that date.  See section 85.45(l) and R.C.P. 80(a).  
 
         Claimant's present testimony is that in August 1982 his condition 
 
         was so disabling he could not work at all.  He further argues 
 
         that he did not return to work in May 1982, thus terminating 
 
         healing period benefits.  The record, however, contains ample 
 
         evidence including claimant's sworn testimony at a job service 
 
         hearing and sworn answers to interrogatories that he returned to 
 
         work for defendant in May 1982 and continued in their employ 
 
         until July 1982.
 
         
 
              Claimant stated in his deposition that after he returned to 
 
         work in May 1982 he developed shoulder pain and consulted Dr. 
 
         Rosenfeld.  At this hearing and at the job service hearing 
 
         claimant said he did not return to Dr. Rosenfeld after May 10, 
 
         1982.  Claimant has contended throughout his sworn testimony that 
 
         he quit work at defendant in July 1982 because of severe shoulder 
 
         and arm pain.  He admitted at his job service hearing, however, 
 
         that he did not inform the defendant that this was the reason for 
 
         his leaving.  His deposition reveals that he left Des Moines to 
 
         move in with a girlfriend in Iowa Falls.  In addition, even 
 
         though claimant contends he had to quit work because of 
 
         continuing shoulder pain, he did not request or seek additional 
 
         medical treatment until November 1982.  Claimant conceded he had 
 
         the benefit of legal counsel throughout this period.
 
         
 
               In addition, claimant was apparently employed by Weaver 
 
         Construction Co. in either July 1983 or 1984.  His job was to 
 

 
         
 
         
 
         
 
         BROWN V. DES MOINES ASPHALT & PAVING CO.
 
         Page   6
 
         
 
         
 
         push asphalt with a lute and lasted from four to six weeks.  
 
         Claimant's deposition testimony suggests he had this job in July 
 
         1983.  His testimony at this hearing and answers to 
 
         interrogatories indicate July 1984.  Since claimant's hearing 
 
         testimony relates this to a period when he was under the care of 
 
         Dr. Crouse, it would seem July 1984 is the more likely date for 
 
         that employment.  Thus, claimant was gainfully employed at the 
 
         very time he had Dr. Crouse convinced that he was so disabled he 
 
         could not work.  There is not a single reference to this 
 
         employment in any of Dr. CrouseOs notes nor in his deposition 
 
         testimony.  It would further appear that claimant did not bother 
 
         to notify defendants of this employment.  Even claimant's August 
 
         7, 1984 answers to interrogatories fail to disclose employment he 
 
         had had less than two weeks earlier.  This employment was not 
 
         disclosed until September 1986.
 
         
 
              In addition to his nondisclosure of employment, claimant's 
 
         driving record discloses he was involved in an auto accident on 
 
         April 23, 1985.  The record does not reveal the nature or 
 
         circumstances of this accident.  There is no reference to this 
 
         accident in Dr. CrouseOs office notes.  There is no reference in 
 
         claimant's answers to interrogatories.  It is noted, however, 
 
         that it was two days later, April 25, 1985, that claimant 
 
         reported to Dr. Crouse a "bit of a setback" in his recovery.  The 
 
         setback was attributed to lifting weights.
 
         
 
              Claimant denied at hearing that he made any representations 
 
         to anyone that he was capable of employment between the period of 
 
         May 11, 1982 and September 6, 1983.  It was during this period 
 
         that claimant was seeking unemployment compensation benefits.  
 
         See section 96.4(3). It is also noted that claimant did not seek 
 
         medical treatment from Dr. Crouse until after he had been denied 
 
         unemployment benefits from job service on the basis of a 
 
         voluntary separation of his employment from defendant.
 
         
 
              These inconsistencies, omissions, and lack of candor on 
 
         behalf of claimant render exceedingly suspect any medical opinion 
 
         based upon claimant's history or complaints of pain.  It is the 
 
         claimant's burden to prove by a preponderance of the evidence 
 
         that the injury of September 9, 1981 is the cause of the 
 
         disability upon which he now bases his claim.  Bodish v. Fischer, 
 
         Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         issue of such a relationship is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris Hardware, 220 
 
         N.W.2d 903 (Iowa 1974).  An opinion of an expert based upon an 
 
         incomplete history is not binding upon the commissioner, but must 
 
         be weighed together with the other disclosed facts and 
 
         circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867.  The expert 
 
         medical evidence must be considered with all other evidence 
 
         introduced bearing on the causal connection between the injury 
 
         and the disability.  Burt, 247 Iowa 691, 73 N.W.2d 732.  In 
 
         regard to medical testimony, the commissioner is required to 
 
         state the reasons on which testimony is accepted or rejected. 
 

 
         
 
         
 
         
 
         BROWN V. DES MOINES ASPHALT & PAVING CO.
 
         Page   7
 
         
 
         
 
         Sondag, 220 N.W.2d 903.
 
         
 
              Section 85.34(l), Code of Iowa, provides that healing period 
 
         benefits are payable to an injured worker who has suffered 
 
         permanent partial disability until (1) he has returned to work; 
 
         (2) is medically capable of returning to substantially similar 
 
         employment; or, (3) has achieved maximum medical recovery.  The 
 
         industrial commissioner has recognized that healing period 
 
         benefits can be interrupted or intermittent.  Willis v. Lehigh 
 
         Portland Cement Company, Vol. 2-1, State of Iowa Industrial 
 
         Commissioner Decisions, 485 (1984).
 
         
 
              Claimant's argument that none of the prerequisites of 
 
         section 85.34(l) had been met on May 11, 1982 is rejected.  Even 
 
         if Dr. Rosenfeld's impairment rating did not accurately reflect 
 
         the date claimant achieved maximum medical recovery, claimant did 
 
         in fact return to work.  The exact date of claimant's return was 
 
         not disclosed at hearing.  In the absence of evidence to the 
 
         contrary, however, May 11, 1982 is adopted.  This was the date 
 
         claimant represented to the industrial commissioner in order to 
 
         obtain his August 6, 1982 partial commutation.  It is thus clear 
 
         that the termination of claimant's healing period benefits on May 
 
         10, 1982 was proper on the basis of two of the three requirements 
 
         of the statute; he had achieved maximum recovery and he had 
 
         returned to work.  The only question is whether he was entitled 
 
         to have those benefits reinstated at a later date.
 
         
 
              Claimant contends that he quit his employment on July 9, 
 

 
         
 
         
 
         
 
         BROWN V. DES MOINES ASPHALT & PAVING CO.
 
         Page   8
 
         
 
         
 
         1982 because of pain and discomfort from his injury.  He has not 
 
         been persuasive on this point.  He did not request that defendant 
 
         accommodate his difficulties; he did not request or seek 
 
         additional medical treatment; and, he did not even tell defendant 
 
         that he was leaving because he could not do the work.  It was not 
 
         until November 1982 that claimant sought additional advice on his 
 
         condition.  Further, claimant's deposition suggests personal 
 
         motives for wanting to move from Des Moines to Iowa Falls.
 
         
 
              Claimant has also failed to establish that healing period 
 
         benefits should be reinstated in November 1982 when he first 
 
         visited Dr. Crouse.  Claimant did not pursue any treatment with 
 
         Dr. Crouse until September 1983.  Also, his permanent impairment 
 
         did not improve.  In fact, his permanent impairment of ten 
 
         percent of the extremity has not changed since May 10, 1982.  
 
         Claimant cannot extend his temporary disability merely by failing 
 
         to follow medical advice.  The only date which would reasonably 
 
         support a recommencement of temporary total or healing period 
 
         benefits is September 8, 1983 when he returned to Dr. Crouse for 
 
         actual treatment of his condition.
 
         
 
              The next question is when, or if, claimant's temporary 
 
         disability terminated following the September 8, 1983 
 
         recommencement date.  Again, it would appear section 85.34(l) is 
 
         controlling.  The record shows that claimant returned to work in 
 
         July 1984 for Weaver Construction Co. This employment lasted four 
 
         to six weeks.  Absent any clarity as to dates, it will be found 
 
         that claimant returned to work on July 1, 1984 and quit on or 
 
         about August 4, 1984.  On June 26, 1984 Dr. Crouse noted that 
 
         claimant had improved but still had weakness and restricted 
 
         motion.  Claimant was advised to continue a rehabilitation 
 
         program.  He was not released to return to work.  By August 27, 
 
         1984 claimant's condition had deteriorated to the point where a 
 
         second surgery was necessary.
 
         
 
              Dr. Crouse causally relates claimant's need for the second 
 
         surgery to the original injury of September 1981.  It is clear, 
 
         however, that Dr. CrouseOs opinion was based upon an incomplete 
 
         history and inaccurate information provided him by claimant.  
 
         There is no indication that Dr. Crouse knew claimant had returned 
 
         to work in the construction industry in July 1984 contrary to his 
 
         recommendation for a conservative therapy treatment program.  It 
 
         is not possible to determine on this record whether the 
 
         persistent bursitis and tendonitis which necessitated the surgery 
 
         would have been present had claimant followed the doctor's 
 
         advice.  Thus, Dr. CrouseOs opinion as to causation between the 
 
         original injury and claimant's second surgery must be 
 
         disregarded.  It is equally possible that claimant's second 
 
         surgery was necessitated by his failure to follow the advice of 
 
         his treating physician.  The ultimate objective of the workers' 
 
         compensation law is to return the injured employee to work.  The 
 
         accomplishment of this goal requires the cooperation of all 
 
         parties and an employer should not be penalized for an employee's 
 
         unreasonable refusal to accept medical treatment.  Johnson v. 
 
         Tri-City Fabricating & Welding Company, Thirty-Third Biennial 
 
         Report of the Industrial Commissioner 179 (1977).
 
         
 
              Based upon the above and foregoing, claimant has failed to 
 
         establish that he is entitled to additional healing period 
 

 
         
 
         
 
         
 
         BROWN V. DES MOINES ASPHALT & PAVING CO.
 
         Page   9
 
         
 
         
 
         benefits for the period from May 11, 1982 to September 6, 1983.  
 
         Claimant has further failed to prove that there is a causal 
 
         relationship between his injury and the disability he suffered 
 
         from March 15, 1985 to December 16, 1985.
 
         
 
              To the extent that the defendants may have overpaid 
 
         claimant, they are entitled to credit against any future benefits 
 
         to which the claimant may be entitled.  The industrial 
 
         commissioner is without authority to order claimant to reimburse 
 
         defendants for any overpayment.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, the following facts are found:
 
         
 
              1.  On September 9, 1981 claimant received an injury to his 
 
         right arm.
 
         
 
              2.  As a result of the injury claimant was off work from 
 
         September 9, 1981 to May 11, 1982.
 
         
 
              3.  Claimant returned to work for defendants on May 11, 1982 
 
         and voluntarily quit on July 9, 1982.
 
         
 
              4.  Claimant quit working for defendants on July 9, 1982 for 
 
         personal or unknown reasons.
 
         
 
              5.  On August 6, 1982 claimant obtained a partial 
 
         commutation of benefits at which time he represented to the 
 
         industrial commissioner that his healing period terminated May 
 
         10, 1982.
 
         
 
              6.  As a result of his injury claimant suffered a permanent 
 
         partial impairment of his right upper extremity equal to ten 
 
         percent.
 
         
 
              7.  Between May 10, 1982 and November 18, 1982 claimant did 
 
         not seek medical treatment or consultation.
 
         
 
              8.  Claimant consulted a physician on November 18, 1982.
 
         
 
              9.  Between July 9, 1982 and September 6, 1983 claimant was 
 
         capable of engaging in employment substantially similar to that 
 
         in which he was engaged at the time of his injury.
 
         
 
             10.  On September 6, 1983 claimant sought additional medical 
 
         treatment which resulted in surgery to resect the distal clavicle 
 
         of his right shoulder.
 
         
 
             11.  As a result of his surgery, claimant was temporarily 
 
         totally disabled from September 6, 1983 to July 1, 1984.
 
         
 
             12.  On July 1, 1984 claimant returned to work for Weaver 
 
         Construction Company.
 
         
 
             13.  Claimant has been less than candid.
 
         
 
             14.  Claimant returned to work on July 1, 1984 without a 
 
         release from his doctor.
 

 
         
 
         
 
         
 
         BROWN V. DES MOINES ASPHALT & PAVING CO.
 
         Page  10
 
         
 
         
 
         
 
             15.  Claimant failed to disclose to his doctor that he 
 
         returned to work on July 1, 1984.
 
         
 
             16.  In December 1984 claimant underwent surgery for chronic 
 
         tendonitis and bursitis of the right shoulder.
 
         
 
             17.  The opinion of Dr. Crouse that claimant's second surgery 
 
         was the result of his injury of September 9, 1981 is not reliable 
 
         because of claimant's failure to provide Dr. Crouse with a 
 
         complete and accurate history of his activities prior thereto.
 
         
 
             18.  Claimant has been paid all permanent partial disability 
 
         benefits to which he is entitled.
 
         
 
             19.   Claimant has been paid the following temporary total 
 
         and/or healing period benefits:
 
         
 
              September 10, 1981 to May 10, 1982
 
              August 7, 1983 to May 10, 1984
 
              September 26, 1984 to May 23, 1986
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              IT IS THEREFORE CONCLUDED that claimant has proven by a 
 
         preponderance of the evidence that he is entitled to temporary 
 
         total disability benefits from September 6, 1983 to July 1, 
 
         1984.
 
         
 
              IT IS FURTHER CONCLUDED that defendants are entitled to 
 
         credit against any additional or future benefits due claimant in 
 
         an amount equal to the excess benefits they have paid to 
 
         claimant.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from 
 
         these proceedings.
 
         
 
              All costs are taxed to claimant.
 
         
 
         
 
              Signed and filed this 28th day of January, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             STEVEN E. ORT
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. David S. Wiggins
 
         Attorney at Law
 
         700 West Towers
 

 
         
 
         
 
         
 
         BROWN V. DES MOINES ASPHALT & PAVING CO.
 
         Page  11
 
         
 
         
 
         1200 35th Street
 
         West Des Moines, Iowa 50265
 
         
 
         Mr. Thomas E. Leahy
 
         Mr. Ross H. Sidney
 
         Attorneys at Law
 
         2222 Grand Avenue
 
         P. 0. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1302; 1108.50; 1802
 
                                                 Filed:  January 28, 1987
 
                                                 STEVEN E. ORT
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JAMES BROWN,
 
         
 
              Claimant,
 
                                                     File No. 688217
 
         VS.
 
                                                      R E V I E W -
 
         DES MOINES ASPHALT &
 
         PAVING COMPANY,                            R E 0 P E N I N G
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         UNITED STATES FIDELITY
 
         AND GUARANTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50; 1302; 1802
 
         
 
              Employee brought an action to establish further payments of 
 
         temporary total disability following defendants termination of 
 
         voluntary payments.  It was held 1) the condition for which 
 
         claimant sought additional compensation was known to him at the 
 
         time the agreement for settlement was approved; 2) claimant was 
 
         entitled to additional benefits for the period from September 
 
         1983 to July 1, 1984; 3) claimant was not entitled to benefits 
 
         after July 1, 1984 because the expert opinion upon which he 
 
         relied was made without benefit of relevant and material 
 
         information and was thus unreliable; and, 4) industrial 
 
         commissioner is without power to order claimant to repay 
 
         defendants for voluntary payments made to him for which he was 
 
         not liable.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            STUART HALL,   :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 688256
 
            BACKMAN SHEET METAL,     :
 
                      :        R E M A N D
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            IOWA CONTRACTORS' WORKERS'    :
 
            COMPENSATION GROUP, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            On April 2, 1991, the Iowa Court of Appeals issued a 
 
            decision in the above-captioned case, remanding the case to 
 
            this agency for further proceedings.   
 
            ACCORDINGLY, IT IS ORDERED:
 
            Defendants shall pay to claimant healing period benefits in 
 
            the amount of seven thousand seventy-one and 70/100 dollars 
 
            ($7,071.70) plus interest.
 
            Defendants are entitled to a credit for overpayment of 
 
            permanent partial disability benefits of seven thousand six 
 
            hundred twenty-five and 92/100 dollars ($7,625.92) plus 
 
            interest.
 
            Signed and filed this ____ day of June, 1991.
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Arthur C. Hedberg, Jr.
 
            Attorney at Law
 
            840 Fifth Ave.
 
            Des Moines, Iowa 50309
 
            
 
            Mr. John A. Templer, Jr.
 
            Mr. Dean C. Mohr
 
            Attorneys at Law
 
            3737 Woodland, Suite 437
 
            West Des Moines, Iowa 50265
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STUART G. HALL,
 
         
 
              Claimant,
 
                                                    FILE NO. 688256
 
         vs.
 
                                                    R E V I E W -
 
         HACKMAN SHEET METAL,
 
                                                    R E 0 P E N I N G
 
              Employer,
 
                                                     D E C I S I O N
 
         and
 
         
 
         IOWA CONTRACTORS' WORKERS                      F I L E D
 
         COMPENSATION GROUP,
 
                                                       MAY 25 1988
 
              Insurance Carrier,
 
              Defendants.                     IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              Stuart G. Hall, the claimant, filed a review-reopening 
 
         petition on May 28, 1986.  Defendants are Backman Sheet Metal, 
 
         employer, and Iowa Contractors' Workers Compensation Group, 
 
         insurance carrier.  The petition seeks additional benefits under 
 
         the Iowa Workers' Compensation Act as a result of an injury on 
 
         November 5, 1981.  The case was heard and submitted at Des 
 
         Moines, Iowa on February 15, 1988, before the undersigned.
 
         
 
              Claimant, in a previous review-reopening hearing on November 
 
         20, 1984, resulting in the decision filed February 25, 1985, was 
 
         awarded benefits based on a 32 percent permanent partial 
 
         disability to his right hand and the entitlement to certain 
 
         future medical benefits.  The record in this February 15, 1988 
 
         hearing consists of the testimony of claimant and exhibits 
 
         numbered 1 through 12 with the first four being introduced by 
 
         claimant and the remaining eight being introduced by defendants.  
 
         Official notice is taken of prior proceedings in this case.
 
         
 
                                   ISSUES
 
         
 
              The issues to be considered are:
 
         
 
              1.  Whether or not claimant has proved a changed condition 
 
         to support review-reopening.
 
         
 
              2.  Whether or not claimant is entitled to healing period 
 
         benefits from February 15, 1985 to July 15, 1985.
 
         
 
                               FACTS PRESENTED
 
         
 
                                                
 
                                                         
 
              A deputy commissioner concluded from the hearing on November 
 
         20, 1984, that:
 
         
 
                   Claimant has established that his disability is 
 
              causally connected to his November 5, 1981 injury and is an 
 
              occupational disease under chapter 85A.
 
         
 
                   Claimant is entitled to permanent partial disability 
 
              benefits equal to thirty-two percent (32%) of the right 
 
              hand....
 
         
 
                   Claimant is entitled to further medical treatment 
 
              including surgical excision and resuture of his carpal 
 
              tunnel decompression scar under the direction of Dr. Anthony 
 
              Ivan Pakiam.
 
         
 
              . . .
 
         
 
              The deputy, based upon the above conclusions of law, 
 
              ordered:
 
         
 
              . . .
 
         
 
                   Defendants provide claimant care under the direction 
 
              and control of Dr. Pakiam to the extent necessary to secure 
 
              the recommended surgical excision and resuture of his carpal 
 
              tunnel decompression scar and prescribed follow-up 
 
              procedures.
 
              [Emphasis supplied]
 
         
 
                  Defendants pay accrued amounts in a lump sum.
 
              . . .
 
         
 
              Claimant's hand was treated pursuant to the deputy 
 
         commissioner's order.  Claimant's treatment was described by A. 
 
         Ivan Pakiam, M.D., as conservative treatment and that for a time 
 
         a TENS unit was applied.  Claimant testified that the TENS unit 
 
         was applied to his right arm and wrist and the TENS unit 
 
         restricted the use of his right arm so that claimant was unable 
 
         to carry out ordinary functions when the arm was involved.  Dr. 
 
         Pakiam, a reconstructive and plastic surgeon, performed a second 
 
         surgery on the claimant's right hand on July 16, 1985.
 
         
 
              The claimant never returned to his regular employment as a 
 
         sheet metal worker, nor did he work at all between February 25, 
 
         1985 and July 15, 1985.  The claimant was paid healing period 
 
         benefits after the surgery but was not compensated from February 
 
         25, 1985 to July 15, 1985.  Dr. Pakiam indicated that claimant 
 
         "should be off work" from February 25, 1985 to July 15, 1985 and 
 
         the.parties stipulated the healing period to be as Dr. Pakiam 
 
         advised.
 
         
 
              Claimant introduced evidence that impairment had been 
 
         reduced in his right hand since the second surgical operation.
 
         
 
                                                
 
                                                         
 
                                APPLICABLE LAW
 
         
 
              The governing statute in review-reopening proceedings is 
 
         Iowa Code section 86.14(2) which reads:
 
         
 
              In a proceeding to reopen an award for payments or agreement 
 
              for settlement as provided by section 86.13, inquiry shall 
 
              be into whether or not the condition of the employee 
 
              warrants an end to, diminishment of, or increase of 
 
              compensation so awarded or agreed upon.
 
         
 
              The operative burden on the petitioning party in a 
 
         review-reopening proceeding is to show there has been a change in 
 
         condition in the employee's condition subsequent to the time of 
 
         the former award setting adjudication.  Henderson v. Iles, 250 
 
         Iowa 787, 96 N.W.2d 321 (1959).  Stice v. Consolidated Ind. Coal 
 
         Co., 228 Iowa 1031, 291 N.W. 452 (1940); Lawyer & Higgs, Iowa 
 
         Workers' Compensation - Law and Practice, section 20-2.
 
         
 
              The Supreme Court of Iowa has held that in review-reopening 
 
         cases if a claimant is fully aware of compensable injuries at the 
 
         time of a prior settlement or award and fails to assert these 
 
         injuries, he cannot for the first time on a review-reopening 
 
         proceeding claim additional benefits.  But, "...if a claimant 
 
         does not know of other employment connected injuries or 
 
         disability at time of any prior agreement or adjudication, he is 
 
         not ordinarily barred from later asserting it as a basis for 
 
         additional benefits."  Gosek v. Garmer & Stiles Company, 158 
 
         N.W.2d 731, 733 (Iowa 1968).
 
         
 
              Healing period is provided for and defined in Iowa Code 
 
         section 85.34(1)(1981):
 
         
 
              It an employee has suffered a personal injury causing 
 
              permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, the 
 
              employer shall pay to the employee compensation for a 
 
              healing period, as provides in section 85.37 [compensation 
 
              schedule], beginning on the date of the injury, and until he 
 
              has returned to work or competent medical evidence indicates 
 
              that recuperation from said injury has been accomplished, 
 
              whichever comes first.
 
         
 
              A healing period may terminate and later begin again. 
 
         Riesselman v. Carroll Health Center, III Iowa Industrial 
 
         Commissioner Report 209, 210 (1982); Teel v. McCord, 394 N.W.2d 
 
         405, 406 (Iowa 1986).
 
         
 
              In the situation where there is an overpayment of benefits, 
 
         credit is allowed for the overpayment.  Wilson Food Corp. v. 
 
         Cherry, 315 N.W.2d 756 (Iowa 1982).
 
         
 
                                  ANALYSIS
 
         
 
              Exhibit 12 is a letter written by Dr. Pakiam indicating the 
 
                                                
 
                                                         
 
         claimant's present disability to his right hand had decreased. 
 
         Claimant objected to the introduction of defendants' exhibit 12 
 
         during the hearing on the basis that credit had been not raised 
 
         before as an issue.  The objection was taken under advisement 
 
         during the hearing and is now overruled.  Exhibit 12 is admitted 
 
         as being relevant to the case as showing a change of condition. 
 
         Defendants next moved to amend their answer to raise the question 
 
         of credit, which was also then taken under advisement.  The 
 
         motion to amend is overruled since credit is taken into 
 
         consideration under the present issues.  Wilson, at 757 and 758.
 
         
 
              A change of condition must be shown to maintain a 
 
         review-reopening proceeding.  If the action for review-reopening 
 
         is appropriate, then an additional award for healing period 
 
         benefits and credit for overpayment may be considered.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         there is a change in his condition.  Claimant has shown Dr. 
 
         Pakiam's request that he be "off-work" from "...February 25th, 
 
         1985, and up to the surgery on July 15th, 1985,..." (Claimant's 
 
         Exhibit 1).  Further, evidence was introduced by claimant showing 
 
         surgery on his hand and that there has been a decrease in 
 
         claimant's functional impairment since the prior determination 
 
         that claimant had functional disability in his right hand of 32 
 
         percent.
 
              
 
                                                         
 
         
 
              Claimant testified he can now clench his right fist and that 
 
         his right hand is better to the extent that he can grip objects 
 
         and manipulate his right hand in performing work although there 
 
         are limitations on the functioning of the hand.
 
         
 
              Defendants introduced, as exhibit 12, a letter of Dr. Pakiam 
 
         written after he had performed surgery on claimant's hand on July 
 
         16, 1985.  The letter, dated September 25, 1987, stated:
 
         
 
              I have worked out the partial permanent disability to Mr. 
 
              Hall's hand to be 20% according to the Guides to the 
 
              Evaluation of Permanent Impairment publishes by the A.M.A., 
 
              2nd Edition.
 
         
 
              Although Dr. Pakiam opined claimant had permanent disability 
 
         to the hand of 20 percent, it is clear that he was using the AMA 
 
         Guides and was speaking of permanent impairment.  The permanent 
 
         partial disability of claimant's hand is also 20 percent.
 
         
 
              As stated earlier claimant had the burden of proving a 
 
         change in condition before he is entitled to a review-reopening.  
 
         Once claimant has established a change in condition has occurred, 
 
         he has the burden of proving his present disability.  The report 
 
         of Dr. Pakiam (Ex. 12) is the only evidence which was presented 
 
         which establishes claimant's present impairment or disability.
 
         
 
              Claimant has met his burden in proving entitlement to 
 
         healing period benefits for the period between February 15, 1985 
 
         and July 15, 1985.  Claimant's evidence stands undisputed that 
 
         Dr. Pakiam released him from work for this period.  However, it 
 
         is also undisputed that defendants have overpaid claimant's 
 
         permanent partial disability benefits in that claimant's 
 
         permanent partial disability is less than was anticipated by the 
 
         prior decision.
 
         
 
              Claimant's argument that the issue of credit for overpayment 
 
         was not raised prior to the hearing is without merit.  Claimant's 
 
         petition for review-reopening automatically raised the issue of 
 
         claimant's present disability and, therefore, the issue that an 
 
         overpayment may have occurred.
 
         
 
                               FINDINGS OF FACT
 
         
 
              Finding 1.  Claimant met his burden of proof for a 
 
         review-reopening proceeding by showing changed condition.
 
         
 
              Finding 2.  A prior decision directed that claimant should 
 
         have further medical treatment and that permanent partial 
 
         disability was then 32 percent for his right hand.
 
         
 
              Finding 3.  Claimant received medical treatment for his 
 
         right hand including a second surgical operation from his 
 
         treating doctor.
 
         
 
                                                
 
                                                         
 
              Finding 4.  Claimant's treating doctor prescribed that he 
 
         not work after February 25, 1985, until surgery was performed on 
 
         July 15, 1985.
 
         
 
              Finding 5.  Claimant did not work from February 25, 1985 to 
 
         July 15, 1985.
 
         
 
              Finding 6.  Claimant's present permanent partial disability 
 
         to his right hand is 20 percent.
 
         
 
              Finding 7.  Defendants have overpaid claimant 22.8 weeks of 
 
         permanent partial disability benefits.
 
         
 
              Finding 8.  Healing period benefits should be allowed from 
 
         February 25, 1985 to July 15, 1985 which is 21.143 weeks.
 
         
 
              Finding 9.  The stipulated rate of compensation is $334.47 
 
         per week.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              A.  Claimant has met his burden of proving he is entitled to 
 
         healing period benefits from February 25, 1985 to July 15, 1985, 
 
         or a total of 21.143 weeks at $334.47 per week.
 
         
 
              B.  Defendants are entitled to a credit for overpayment of 
 
         claimant's permanent partial disability of 22.8 weeks.
 
         
 
              C.  Defendants' credit exceeds claimant's entitlement to 
 
         healing period by 1.657 weeks.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              1.  Claimant shall take nothing from these proceedings.
 
         
 
              2.  Each party shall pay their own costs.  Defendants shall 
 
         pay the costs of the court reporter.
 
         
 
         
 
              Signed and filed this 25th day of May, 1988.
 
         
 
         
 
         
 
         
 
                                            G. WOODWARD
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Arthur C.Hedberg, Jr.
 
         Attorney at Law
 
         840 Fifth Avenue
 
                                                
 
                                                         
 
         Des Moines, Iowa  50309-1398
 
         
 
         Mr. John A. Templer, Jr.
 
         Ms. Ann M. Ver Heul
 
         Attorneys at Law
 
         3737 Woodland, Suite 437
 
         West Des Moines, Iowa  50265
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1700, 1802, 2905
 
                                            Filed May 25, 1988
 
                                            GARRY D. WOODWARD
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STUART G. HALL,
 
         
 
              Claimant,
 
                                                      FILE NO. 688256
 
         vs.
 
                                                        R E V I E W -
 
         HACKMAN SHEET METAL,
 
                                                     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.
 
         
 
         
 
         1700; 1802; 2905
 
         
 
              A credit is given for overpayment of permanent partial 
 
         disability payments against healing period benefits.
 
         
 
              Review-reopening is supported by a changed condition of 
 
         improvement of claimant's hand impairment or which an award of 
 
         permanent partial disability had previously been made.
 
         
 
              A changed condition occurred supporting a review-reopening 
 
         proceedings when the treating physician prescribed that claimant 
 
         be "off work."