BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOHN A. ALBRIGHT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File Nos. 696983/682771
 
         
 
         WILSON FOODS CORP.,
 
                                                       A P P E A L
 
              Employer,
 
         
 
              Self-Insured,                          D E C I S I 0 N
 
         
 
         and
 
         
 
         THE SECOND INJURY FUND
 
         OF IOWA,
 
         
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant-Wilson Foods Corp. (hereinafter Wilson), appeals 
 
         from a consolidated review-reopening decision in which claimant 
 
         was awarded permanent partial disability benefits for 30 percent 
 
         industrial disability.  The deputy found that the second injury 
 
         fund was liable for three weeks of claimant's entitlement to 
 
         permanent partial disability benefits.  Claimant cross-appeals.
 
         
 
              The record on appeal consists of the transcript of the 
 
         hearing and the joint exhibits A through F together with the 
 
         briefs and filings of all parties on appeal.  Pursuant to 
 
         agreement of the parties the following answers to interrogatories 
 
         were reviewed: 1) Claimant's answers to interrogatories 
 
         propounded by Wilson filed November 29, 1984; 2) Claimant's 
 
         answers to interrogatories propounded by The Second Injury Fund 
 
         of Iowa, filed December 28, 1984 (the fund propounded 23 
 
         interrogatories, claimant answered 2, 4, 7, 8, 9, 10, 19, 20, and 
 
         24); and 3) claimant's amended answers to interrogatories filed 
 
         February 12, 1985.  On pages 50-51 of his deposition of March 20, 
 
         1985 claimant, through his attorney, refined or modified some of 
 
         his answers to interrogatories.
 
         
 
                                      ISSUES
 
         
 
              The defendant-Wilson states the following issues on appeal:
 
         
 
              1.  Whether the evidence supports the finding of present 
 
              industrial disability.
 
              
 
              2.  Whether a finding of industrial disability attributable 
 
              solely to a second compensable injury is required or 
 
              appropriate in this case.
 
         
 
              3.  If industrial disability relating to the second injury 
 
              only must be determined, whether the record supports the 
 
              finding relating to the second injury.
 
         
 
              On cross-appeal claimant suggests two additional findings of 
 

 
         
 
         
 
         
 
         ALBRIGHT V. WILSON FOODS CORP.
 
         Page   2
 
         
 
         
 
         fact be made.  The first of these findings is that there has been 
 
         no physical effect outside the legs from either,of these two 
 
         injuries.  The second is that the overall industrial disability 
 
         which has been found is a result of a combination of the two 
 
         injuries and is not solely attributable to the second injury.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be reiterated 
 
         herein.
 
         
 
              Briefly stated, claimant sustained an injury to his right 
 
         knee while Ochanging grates" at work on September 9, 1981.  He 
 
         subsequently underwent an arthroscopy and arthrotomy with medial 
 
         meniscectomy of the right knee, which was performed by Martin F. 
 
         Roach, M.D.  Claimant returned to work on December 1, 1981 with 
 
         no work restrictions, although he did experience some 
 
         difficulties which required further physical therapy.  Claimant's 
 
         job upon his return was boiler room maintenance person which was 
 
         the same job he was doing at the time of the September 9, 1981 
 
         injury.
 
         
 
              Claimant sustained a second injury on February 9, 1982 which 
 
         was to his left knee.  Again, this injury occurred while claimant 
 
         was "changing grates.O  Subsequently, claimant underwent an 
 
         arthrotomy with removal of the meniscus, on the left knee on 
 
         March 15, 1982.  This surgery was performed by L.C. Strathman, 
 
         M.D.  Dr. Strathman released claimant for light duty on May 3, 
 
         1982 and for regular duty on May 19, 1982.  However, the job to 
 
         which claimant returned, boiler room utility man, involves less 
 
         climbing, no changing grates, and he is able to sit down when his 
 
         knees bother him.
 
         
 
              The boiler room utility job pays fifteen cents an hour less 
 
         than the boiler room maintenance job, but the boiler room utility 
 
         job rotates between shifts which allows claimant to earn a shift 
 
         premium which actually improves the amount of claimant's total 
 
         wages.
 
         
 
              Dr. Strathman opines that claimant has functional impairment 
 
         of ten percent for each leg related to the loss of meniscus in 
 
         each knee.
 
              Claimant is 47 years old and a high school graduate with a 
 
         work history involving manual labor.  Claimant has worked for 
 
         Wilson (now Farmstead Foods) since he was discharged from the 
 
         navy in 1961.  Claimant is subject to being bumped from his 
 
         current job by a Wilson employee with more seniority.  He 
 
         continues to complain of pain in his knees when standing on 
 
         concrete floors for over 45 minutes or when the weather is cold 
 
         or damp.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Assessment of industrial disability sustained as a result of 
 
         a second injury is appropriate only when the second injury 
 
         extends to the body as a whole.  Fulton v. Jimmy Dean Meat 
 
         Company, Appeal Decision, July 28, 1986.  Fulton represents the 
 
         current agency interpretation of Second Injury Fund v. Mich Coal 
 

 
         
 
         
 
         
 
         ALBRIGHT V. WILSON FOODS CORP.
 
         Page   3
 
         
 
         
 
         Company, 274 N.W.2d 300 (1970).  Applying the holding in Fulton 
 
         to the record, it is found that the employer's liability is 
 
         limited to the functional impairment of each scheduled member as 
 
         there is no evidence presented that the second knee injury that 
 
         claimant sustained extends to his body as a whole.
 
         
 
              Accordingly, the second injury fund is liable for any 
 
         industrial disability which claimant has sustained over the 
 
         combined scheduled losses.  Therefore, a determination of the 
 
         extent of claimant's industrial disability must be made.  When 
 
         the record as a whole is considered it is found that claimant has 
 
         sustained industrial disability of 30 percent.  Thus, the second 
 
         injury fund would be liable for 106 weeks of permanent partial 
 
         disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant is 47 years old.
 
         
 
              2.  Claimant is a high school graduate with a work history 
 
         of solely manual labor.
 
         
 
               3.  Claimant was discharged from the U.S. Navy on July 7, 
 
         1961.
 
         
 
               4.  After discharge from the navy, claimant started work 
 
         for Wilson (now Farmstead Foods) in Cedar Rapids; he has worked 
 
         for Wilson for more than 24 years.
 
         
 
               5.  Claimant worked in Wilson's beef boning department for 
 
         about 17 years.
 
         
 
               6.  After the beef boning department closed, claimant 
 
         worked at other manual labor jobs at Wilson.
 
         
 
         
 
              7.  On September 9, 1981, claimant injured his right knee 
 
         while working as a boiler room maintenance person at Wilson; this 
 
         job is also referred to as boiler room mechanic.
 
         
 
              8.  Claimant had surgery on his right knee and was off work 
 
         for about ten weeks.
 
         
 
              9.  Claimant returned to work without medically imposed 
 
         restrictions because of his right knee, but experienced pain in 
 
         his right knee on the job.
 
         
 
             10.  On February 9, 1982, claimant injured his left knee 
 
         while working as a boiler room maintenance person at Wilson.
 
         
 
             11.  Claimant had surgery on his left knee and was off work 
 
         for about seven weeks.
 
         
 
             12.  Claimant currently works for Wilson as a boiler room 
 
         utility person, because in this capacity he is allowed to sit 
 
         when he physically needs to do so.
 
         
 
             13.  Most of the approximately 1500 jobs at Wilson are not 
 
         the type of jobs that would allow a person to sit at will.
 

 
         
 
         
 
         
 
         ALBRIGHT V. WILSON FOODS CORP.
 
         Page   4
 
         
 
         
 
         
 
             14.  Claimant could be bumped from his current job by a 
 
         Wilson employee with more seniority.
 
         
 
             15.  Claimant sustained ten percent permanent partial 
 
         impairment to each of his knees as a result of the injuries on 
 
         September 9, 1981 (right knee) and February 9, 1982 (left knee).
 
         
 
             16.  The disability from the second injury claimant sustained 
 
         does not extend into the body as a whole.
 
         
 
             17.  Claimant has difficulty climbing, lifting, stooping, 
 
         crawling, and working on his knees, and this is a result of his 
 
         work-related injuries to his knees.
 
         
 
             18.  Claimant's industrial disability as it relates to the 
 
         body as a whole because of the combined effects of his two knee 
 
         injuries is 30 percent.
 
         
 
             19.  Pursuant to stipulation, the rate for the injury of 
 
         February 9, 1982 is $300.46 and the date for commencing payment 
 
         of permanent disability benefits is May 3, 1982.  The rate for 
 
         the injury of September 9, 1981 is $280.45 and the date for 
 
         commencing payment of permanent disability benefits is December 
 
         1, 1981.
 
         
 
             20.  The two injuries in this case are separate and 
 
         distinct.
 
         
 
         
 
         
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The compensable value of the permanent injury to the right 
 
         leg is 22 weeks.
 
         
 
              The compensable value of the permanent injury to the left 
 
         leg is 22 weeks.
 
         
 
              The overall industrial disability as a result of the 
 
         combined effects of both permanent injuries is equal to 150 
 
         weeks.
 
         
 
              The obligation of the second injury fund is 106 weeks of 
 
         permanent partial disability benefits.
 
         
 
              The obligation of the second injury fund commences October 
 
         4, 1982 and ends October 14, 1984.
 
         
 
              WHEREFORE, the decision of the deputy is modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That Wilson Foods Corp. pay claimant twenty-two (22) weeks 
 
         of permanent partial disability benefits commencing May 3, 1982 
 

 
         
 
         
 
         
 
         ALBRIGHT V. WILSON FOODS CORP.
 
         Page   5
 
         
 
         
 
         through October 3, 1982 at the weekly rate of three hundred and 
 
         46/100 dollars ($300.46).
 
         
 
              That the Second Injury Fund of Iowa pay claimant one hundred 
 
         six (106) weeks of permanent partial disability benefits 
 
         commencing October 4, 1982 through October 14, 1984 at the weekly 
 
         rate of three hundred and 46/100 dollars ($300.46).
 
         
 
              That Wilson Foods Corp. pay claimant twenty-two (22) weeks 
 
         of permanent partial disability benefits commencing December 1, 
 
         1981 through May 4, 1982 at the weekly rate of two hundred eighty 
 
         and 45/100 dollars ($280.45).
 
         
 
              That Wilson Foods Corp. be given credit for benefits already 
 
         paid.
 
         
 
              That accrued benefits are to be paid in a lump sum together 
 
         with interest pursuant to section 85.30, The Code.
 
         
 
              That Wilson Foods Corp. and Second Injury Fund each pay 
 
         one-half of the costs of this action in accordance with Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
         
 
         
 
              That defendants shall file claim activity reports, pursuant 
 
         to Rule 343-3.1(2), as requested by the agency.
 
         
 
         
 
         
 
              Signed and filed this 27th day of April, 1987.
 
         
 
         
 
         
 
         
 
                                              ROBERT C. LANDESS
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Phillip Vonderhaar
 
         Attorney at Law
 
         840 Fifth Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         P.O. Box 2107
 
         Cedar Rapids, Iowa 52406
 
         
 
         Mr. Charles Lavorato
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      3201
 
                                                      Filed April 27, 1987
 
                                                      ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JOHN A. ALBRIGHT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                              File Nos. 696983/682771
 
         WILSON FOODS CORP.,
 
                                                     A P P E A L
 
              Employer,
 
              Self-Insured,                       D E C I S I 0 N
 
         
 
         and
 
         
 
         THE SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         3201
 
         
 
              Assessment of industrial disability sustained as a result of 
 
         a second injury is appropriate only when the second injury 
 
         extends to the body as a whole.  Fulton v. Jimmy Dean Meat 
 
         Company, Appeal Decision, July 28, 1986.  Applying the holding in 
 
         Fulton to the record, it is found that the employer's liability 
 
         is limited to the functional impairment of each scheduled member 
 
         as there is no evidence presented that the second knee injury 
 
         that claimant sustained extends to his body as a whole.
 
 
 
         
 
 
            
 
 
 
 
 
              
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         MICHAEL PETERS,
 
         
 
              Claimant,
 
                                                 File No. 697708
 
         VS.
 
                                                   A P P E A L
 
         SWIFT INDEPENDENT PACKING
 
         COMPANY,
 
                                                 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 he.failed to establish a causal 
 
         connection between his work injury and the disability on which he 
 
         bases his claim.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening hearing and joint exhibits 1 and 2. Both parties 
 
         filed briefs on appeal.
 
         
 
                                   ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  Did the issue of causation from the March 11, 1982, 
 
         injury become moot by the prior 2% permanent disability payment 
 
         by the Defendants in this Review-Reopening?
 
         
 
              2.  Is not the principal issue in the Review-Reopening 
 
         whether the Claimant has sustained as of this time more than the 
 
         2% industrial disability earlier paid by Defendant?
 
         
 
              3.  Alternatively, whether the Claimant met his burden of 
 
         proof of showing permanent disability arising from the March 11, 
 
         1982, accident.
 
         
 
              4.  Alternatively, whether the Claimant has sustained 
 
         greater than a 2% industrial disability from the March 11, 1982, 
 
         accident.
 
                
 
                           REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 

 
         
 
         PETERS V. SWIFT INDEPENDENT PACKING COMPANY     
 
         Page   2
 
         
 
 
 
         reflects the pertinent evidence and it will not be fully 
 
         reiterated herein.
 
         
 
              On March 11, 1982 claimant sustained a work-related injury 
 
         to his back when a jowl chute fell on his head knocking him to 
 
         the floor so that his middle back struck a metal stand.  Claimant 
 
         was off work for a period of time before returning to the meat 
 
         trimming job he was doing before the injury.  Claimant states 
 
         that he bid into a night sanitation job so he could avoid the 
 
         lifting required in the meat trimming job.  Claimant's testimony 
 
         further indicates that he performed jobs after the work injury 
 
         which involved long periods of standing, constant repetition, and 
 
         some lifting (see Tr., pp. 40-46).
 
         
 
              Claimant had suffered prior back problems in 1975 and 1980.  
 
         Claimant was symptomatic from 1980 onward and under the care of 
 
         John P. McCarthy, D.C. Dr. McCarthy treated claimant after the 
 
         March 11, 1982 work injury.  His diagnoses prior to the work 
 
         injury and after the work injury are similar.  John J. Dougherty, 
 
         M.D., and R. I. Sprague, D.C., also examined claimant.  Dr. 
 
         Dougherty opines that in view of claimant's continuing back 
 
         problems it is difficult to tell how much of those problems are 
 
         the result of claimant's injury or just an aggravation of his 
 
         preexisting problems.  Dr. Sprague assigns a functional 
 
         impairment rating to claimant's back but does not comment on the 
 
         cause of claimant's back condition.
 
         
 
              Claimant now works as a rod man for a surveying company in 
 
         Texas since the defendant-employer's plant closing in August 
 
         1985.  This job requires claimant to walk and bend more than he 
 
         had anticipated.  Claimant describes his back condition as a 
 
         dull, constant ache in the low back with sharp pain on lifting.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                  ANALYSIS
 
         
 
              In his brief claimant argues that causal connection was not 
 
         an issue at the time of hearing.  A review of the prehearing 
 
         order, prehearing report and order approving same, and the trial 
 
         transcript reveal that both parties understood that whether there 
 
         was a causal relation between the alleged injury and the 
 
         disability was in dispute.  Claimant, in bringing this action for 
 
         review-reopening, is seeking additional benefits.  It is 
 
         claimant's burden to show such an entitlement.
 
         
 
              Claimant failed to prove that any permanent impairment 
 
         resulted from the injury on March 11, 1982.  The fact that a 
 
         person has a serious injury does not mean that permanent 
 
         impairment results.  Many serious injuries only result in a 
 
         temporary condition or a temporary aggravation of a preexisting 
 
         condition.
 
         
 
              The deputy analyzed the medical evidence and came to the 
 
         conclusion that claimant failed to meet his burden in proving a 
 
         causal connection between his injury on March 11, 1982 and any 
 

 
         
 
         
 
         PETERS V. SWIFT INDEPENDENT PACKING COMPANY      
 
         Page   3
 
         
 
         
 
         further benefits.  After review of the record, the undersigned 
 
         comes to the same conclusion.
 
         
 
              Contrary to claimant's assertions, the greater weight of 
 
         medical evidence would indicate that any permanent problems which 
 
         claimant may be experiencing preexisted the March 11, 1982 
 
         injury.  Such a conclusion is supported by the testimony of Dr. 
 
         McCarthy, whose testimony is given the greatest weight because of 
 
         the period of time over which he treated claimant.  As indicated 
 
         by the deputy, the diagnosis of claimant's condition in 1980 and 
 
         1984 are remarkably similar.  Dr. Dougherty's statement regarding 
 
         claimant's prior problems lends further support to that 
 
         determination.
 
         
 
              Claimant's failure to causally connect his injury with the 
 
         disability upon which he is basing this claim makes it 
 
         unnecessary to comment on the question of disability.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  Claimant received an injury arising out of and in the 
 
         course of his employment on March 11, 1982 when a chute hit him 
 
         on the head, knocked him to the floor, and hit him on his back.
 
         
 
              2.  Claimant had had prior back problems in 1975 and 1980.
 
         
 
              3.  Claimant had been symptomatic and under Dr. McCarthy's 
 
         care from 1980 onward.
 
         
 
              4.  Dr. McCarthy's diagnoses for claimant in 1980 and 1984 
 
         were remarkably similar.
 
         
 
              5.  Claimant's injury of March 11, 1982 resulted in no 
 
         permanent impairment.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to established a causal relationship 
 
         between his March 11, 1982 injury and the disability on 
 
         which he bases his claim.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
                                        
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing further from this proceeding.
 
         
 
            That claimant pay the cost of the review-reopening proceeding
 
         along with the costs of the appeal.
 
         
 
         
 
                  Signed and filed this 22nd day of July, 1987.
 
          
 

 
         
 
         
 
         PETERS V. SWIFT INDEPENDENT PACKING COMPANY    
 
         Page   4
 
                                          
 
                                          
 
 
 
 
 
                                          
 
                                          DAVID E. LINQUIST
 
                                          ACTING INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         SiOux City, Iowa 51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Building
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.5-1302.1-1402.50
 
                                                 1803-2905
 
                                                 Filed July 22, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         MICHAEL PETERS,
 
         
 
              Claimant,
 
                                                 File No. 697708
 
         VS.
 
                                                   A P P E A L
 
         SWIFT INDEPENDENT PACKING
 
         COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         
 
         1108.5 - 1302.1 - 1402.50 - 1803 - 2905
 
         
 
              Claimant failed to establish causal connection between 
 
         injury and claimed disability.  Prior back problems.  Work after 
 
         injury no less strenuous.  Affirmed.
 
 
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         MICHAEL E. McDANEL,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 698042
 
         CHEMPLEX COMPANY,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         THE CONTINENTAL INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision awarding 
 
         temporary total disability benefits.  Defendants have cross 
 
         appealed.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding; and joint exhibits 1 through 25.  Both 
 
         parties filed briefs on appeal, and claimant has filed a reply 
 
         brief.
 
         
 
                                  ISSUES
 
         
 
              The parties state the following issues on appeal:
 
         
 
              1.  Whether claimant's claim was barred by Iowa Code section 
 
         85.26.
 
         
 
              2.  Whether claimant's present disability is causally 
 
         related to his injury of December 14, 1981.
 
         
 
              3.  The extent of claimant's disability.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Briefly stated, claimant was 32 years old at the time of the 
 
         hearing and was employed by defendant Chemplex as a mechanical 
 
         maintenance worker.  While using a wrench at shoulder height on 
 
         December 14, 1981, claimant felt a pain and a burning sensation 
 
         in his left shoulder.
 
         
 
              Claimant testified that he experienced additional pain on 
 

 
         March 7, 1982.  He was examined on March 17, 1982 by L. H. 
 
         Barnes, an orthopedic specialist, and found to have left 
 
         bicipital tendonitis.  On that date, Dr. Barnes signed a note 
 
         stating claimant should not return to work for two.weeks,'and the 
 
         employer's workers' compensation insurance carrier was notified.  
 
         An employee manual for Chemplex provides in part:
 
         
 
              If an injury should occur at work, you are covered by 
 
              the Workmen's Compensation Law of Iowa which provides 
 
              for medical and hospital care as well as weekly 
 
              benefits.  In addition, Chemplex will supplement these 
 
              benefits so that you will receive the same benefits as 
 
              provided in the Income Protection Plan.
 
         
 
         (Joint Exhibit 20)
 
         
 
              Defendant employer filed a first report of injury December 
 
         15, 1981.  On March 22, 1982, defendant employer filed a revised 
 
         report indicating claimant had sustained a lost time injury.
 
         
 
              Claimant testified he left work pursuant to Dr. Barnes' 
 
         orders.  Ronald Reiser, safety manager for Chemplex, testified 
 
         that at that time Chemplex was involved in a safety program 
 
         wherein the company was trying to achieve 1,000,000 man hours 
 
         without a lost time injury.  He stated that the company was "very 
 
         interested" in achieving this goal, and posted a sign by the 
 
         front gate showing the number of hours achieved.
 
         
 
              Ronald Reiser also testified that a representative of the 
 
         company spoke with Dr. Barnes about the safety program, and as a 
 
         result of that conversation Dr. Barnes revised his statement to 
 
         allow claimant to return to restricted work.  Claimant testified 
 
         that after six days absence he was requested to return to work 
 
         and did so.  Claimant was paid full salary while off work and 
 
         testified he was told his medical bills would be paid under 
 
         workers' compensation.  The company achieved its safety goal, and 
 
         a celebratory dinner was held for the employees, which claimant 
 
         attended.
 
         
 
              Claimant continued to experience pain in his shoulder, and 
 
         this was reported to Dr. Barnes in various appointments occurring 
 
         on March 17, March 31, April 19, and May 3, 1982.
 
         
 
         
 
              Martin F. Roach, M.D., examined claimant on April 7, 1982 
 
         and concluded:
 
         
 
              Examination of the shoulder reveals he has just about 
 
              full range of motion, lacks about 5     o full forward 
 
              flexion.  Internal rotation is uncomfortable for him 
 
              but he does not appear to be in any acute pain ....
 
         
 
                   X-Rays taken in January of this year on Mr. 
 
              McDanel do not show any significant abnormalities of 
 
              the glenohumeral joint ... Essentially, these x-rays 
 
              are unremarkable...
 
         
 
                   X-rays of his shoulder including axillary view are 
 
              normal.
 
         
 
                   It is my impression that he probably had a rotator 
 
              cuff strain, maybe has some mild residual tendonitis on 
 
              the left side.  I think a lot of this is functional.
 
         
 

 
         
 
         
 
         
 
         McDANEL V. CHEMPLEX COMPANY
 
         Page   3
 
         
 
         
 
                   Would send him back to work and tell him that with 
 
              tincture of time this should improve.  Do not 
 
              anticipate any disability.
 
         
 
         (Jt.  Ex. 9a)
 
         
 
              Claimant was next examined by John R. McKee, M. D., on April 
 
         8, 1982, who stated, in part: "[T]he symptoms are not suggestive 
 
         of a condition needing surgical repair at the present time but 
 
         more a matter of rest, physical therapy as needed, and largely a 
 
         matter of time." (Ex. 10)
 
         
 
              A report from Doctors Welch and Pontarelli, dated August 30, 
 
         1982, concluded:
 
         
 
              It was explained to the patient that treatment to this 
 
              point has been proper and complete and that there was 
 
              nothing else that we could add.  It was explained that 
 
              it was difficult to determine the extent of disability 
 
              the patient may have in relation to range of motion but 
 
              stated that whatever residual he had at one year post 
 
              injury would probably be the full extent of his 
 
              recovery.
 
         
 
         (Jt. Ex. 12)
 
         
 
              Claimant had normal results on both a bone scan and 
 
         arthrogram in 1982.  Claimant had no medical examinations from 
 
         August 30, 1982 until October 7, 1984.
 
         
 
         
 
              Claimant experienced increased shoulder pain in September 
 
         1984.  Richard Kreiter, M.D., performed surgery on claimant's 
 
         shoulder on November 30, 1984.
 
         
 
              Dr. Kreiter continued to see claimant over the next several 
 
         months.  On November 25, 1985, Dr. Kreiter gave the following 
 
         opinion:
 
         
 
                   Historically Michael had no disability or problem 
 
              with his shoulder until the event at work as mentioned 
 
              in the history.  I would feel the progressive problem 
 
              in the shoulder was there related to the injury.  In 
 
              regard to a disability rating, resection of the distal 
 
              end of a clavicle gives one a 5% permanent physical 
 
              impairment, loss of physical function to the whole arm 
 
              as a result of that surgery.  This rating is taken from 
 
              the Manual for Orthopaedic Surgeons in Evaluating 
 
              Permanent Physical Impairment as published by the 
 
              American Academy of Orthopaedic Surgeons.
 
         
 
         (Jt.  Ex. 16)
 
         
 
              Claimant testified he had no shoulder pain or problem prior 
 
         to the injury.  He also testified he knew of no other incident, 
 
         work-related or non-work-related, that may have caused his 
 
         disability.  Claimant also testified that his weight lifting and 
 
         volleyball were in part therapy recommended by Dr. Kreiter, and 
 
         that none of the doctors recommended he cease those activities.  
 

 
         
 
         
 
         
 
         McDANEL V. CHEMPLEX COMPANY
 
         Page   4
 
         
 
         
 
         The parties stipulated that claimant's rate was $267.57.
 
         
 
                                APPLICABLE LAW
 
         
 
              The arbitration decision cites law appropriate to the issues 
 
         therein.
 
         
 
                                  ANALYSIS
 
         
 
              Claimant's injury occurred December 14, 1981.  Prior to July 
 
         1, 1982, an employer's failure to file a memorandum of agreement 
 
         within thirty days of commencing weekly benefits tolled the 
 
         statute of limitations under section 85.26(1).
 
         
 
              The benefits paid to claimant in 1982 were perceived by him 
 
         to be in lieu of workers' compensation benefits.  The employer 
 
         filed a first report of injury that treated the injury as a lost 
 
         time injury.  The claimant was told his medical bills would be 
 
         paid by workers' compensation.  The company's employee manual 
 
         provided for full salary payments in the event of a workers' 
 
         compensation injury.  Although the company's policy was to 
 
         request the signing over to the company of workers' compensation 
 
         benefits checks when full salary was paid, there is no evidence 
 
         this was done.  This may very well be because the company desired 
 
         not to record the salary payments as workers' compensation 
 
         benefits in order to maintain its safety record.  Indeed, the 
 
         company went to the length of requesting Dr. Barnes to change his 
 
         recommendation on claimant's work status to mask the true nature 
 
         of claimant's absence from work.  Based on what was communicated 
 
         to him and what the employee manual stated, claimant reasonably 
 
         perceived his continued salary as workers-I compensation 
 
         payments.  The company's efforts to disguise the nature of those 
 
         payments in order to maintain a safety record do not change their 
 
         nature.  Claimant was off work for six days in March 1982 and 
 
         received full salary therefore.  These were in the nature of 
 
         workers' compensation benefits paid.  No memorandum of agreement 
 
         was filed.  As this tolls the statute of limitations, his action 
 
         is not barred.
 
         
 
              Claimant has the burden of showing that his disability on 
 
         which he bases his claim is causally connected to his injury of 
 
         December 14, 1981.  Claimant was treated by Dr. Barnes, who 
 
         referred him to other specialists such as Dr. Roach, Dr. McKee, 
 
         Dr. Welch and Dr. Pontarelli.  Their general consensus was that 
 
         claimant had suffered a rotator cuff tear and tendonitis on April 
 
         17, 1982.  Dr. Roach opined that claimant's condition would 
 
         improve, and that he did not anticipate any disability.  Claimant 
 
         also had a normal arthrogram and a normal bone scan in 1982.  He 
 
         did not visit any of his doctors from August 30, 1982 until 
 
         October 1984.
 
         
 
              There are also references in the record to claimant's 
 
         recreational or nonemployment activities, such as chopping wood, 
 
         playing softball and volleyball, and weight lifting subsequent to 
 
         his injury.
 
         
 
              Dr. Kreiter offered the opinion that claimant's disability 
 
         was caused by his December 14, 1981 injury.  However, Dr. 
 
         Kreiter's opinion is based on his examinations of claimant 
 

 
         
 
         
 
         
 
         McDANEL V. CHEMPLEX COMPANY
 
         Page   5
 
         
 
         
 
         beginning in October of 1984, nearly three years after his 
 
         injury.  Dr. Kreiter's opinion was based on the history provided 
 
         to him by claimant.  Although his opinion refers to claimant's 
 
         condition as "progressive," the record, in fact, discloses that 
 
         claimant's condition improved following the injury for a 
 
         substantial period of time from August 30, 1982 to September or 
 
         October 1984.  Claimant had no need to seek medical attention.  
 
         During this time, he was engaged in activities that could very 
 
         well have caused his present disability, such as upper body and 
 
         overhead weight lifting, and playing sports that involved the 
 
         exertion of his arm and shoulder muscles, such as volleyball and 
 
         softball.  Significantly, the opinion of Dr. Roach in April of 
 
         1982 was that claimant would not suffer any disability as a 
 
         result of his injury.  Dr. Roach's opinion was rendered less than 
 
         four months after claimant's injury, as opposed to the opinion of 
 
         Dr. Kreiter, which was given after an intervening period of 
 
         nearly three years.  The opinion of Dr. Roach is therefore 
 
         entitled to the greater weight.  Claimant's normal arthrogram and 
 
         EMG in 1982 also support the conclusion that he suffered no 
 
         continuing disability from his injury in December of 1981.
 
         
 
              Claimant has failed to carry his burden of proving by a 
 
         preponderance of the evidence that his disability was causally 
 
         related to his injury of December 14, 1981.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  On December 14, 1981 claimant injured his left shoulder 
 
         while working for defendant employer.
 
         
 
              2.  Claimant was off work for six days in March of 1982 as a 
 
         result of that injury but was able to return to his work.
 
         
 
              3.  Claimant was paid full salary while off work.
 
         
 
              4.  Defendant employer had a policy of paying full salary to 
 
         workers entitled to workers' compensation benefits.
 
         
 
              5.  Claimant reasonably believed his salary was paid in lieu of 
 
         workers' compensation benefits.
 
         
 
              6.  Defendant employer did not file a memorandum of agreement.
 
         
 
              7.   Claimant was diagnosed as suffering from a possible 
 
         rotator cuff tear and tendonitis.
 
         
 
              8.  Claimant had a normal arthrogram and a normal bone scan in 
 
         1982.
 
         
 
              9.  Claimant engaged in weight lifting, volleyball and softball 
 
         subsequent to his injury.
 
         
 
              10.  Claimant experienced increased symptoms in August or 
 
         September 1984.
 
         
 
              11.  Claimant did not see a doctor in regard to his shoulder 
 
         from August 30, 1982 until October 1984.
 
         
 
              12.  Claimant underwent shoulder surgery in November 1984.
 

 
         
 
         
 
         
 
         McDANEL V. CHEMPLEX COMPANY
 
         Page   6
 
         
 
         
 
         
 
              13.  Claimant's surgery in November 1984 was not causally 
 
         connected to his injury of December 14, 1981.
 
         
 
              14.  Claimant's rate of compensation is $257.57.
 
         
 
         
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              1.  Claimant's action for workers' compensation benefits is not 
 
         barred by Iowa Code section 85.26.
 
         
 
              2.  Claimant has failed to establish that the injury of 
 
         December 14, 1981 is causally connected to the permanent disability 
 
         on which he bases his claim.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants are to pay claimant temporary total 
 
         disability benefits for point eight five seven (.857) weeks at 
 
         the rate of two hundred sixty-seven and 57/100 dollars ($267.57). 
 
         Defendants shall receive credit for benefits paid under its 
 
         income protection plan.
 
         
 
              That defendants shall file claim activity reports pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), as requested 
 
         by the agency.
 
         
 
              That the costs of the arbitration proceeding are charged to 
 
         defendants and the costs of appeal including the cost of the 
 
         transcription of the proceeding is to be shared equally by 
 
         defendants and claimant.
 
         
 
         
 
              Signed and filed this 22nd day of December, 1987.
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. J. Drew Chambers
 
         Attorney at Law
 
         P.O. Box 3055
 
         Clinton, Iowa 52732
 
         
 
         Mr. Craig A. Levien
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2402 - 1108.50
 
                                                 Filed  December  22, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         MICHAEL E. McDANEL,
 
         
 
              Claimant,
 
                                                 File No. 698042
 
         VS.
 
         
 
         CHEMPLEX COMPANY,
 
                                                   A P P E A L 
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         THE CONTINENTAL INSURANCE
 
         COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         2402
 
         
 
              Defendants paid claimant full salary while off work for a 
 
         work-related injury under a company policy providing for full 
 
         salary as a supplement to workers' compensation benefits.  
 
         Defendants' subjective classification of such benefits as not 
 
         being in lieu of workers' compensation, in order to maintain a 
 
         safety record, did not change their nature.  The statute of 
 
         limitations was therefore tolled.
 
         
 
         1108.50
 
         
 
              Claimant failed to carry his burden to show his disability 
 
         was causally connected to his shoulder injury where his first 
 
         doctor expected his injury to improve and not result in 
 
         disability, nearly two years elapsed without the need for medical 
 
         attention, claimant had intervening normal arthrogram and EMG, 
 
         medical expert testimony as to causal connection was rendered 
 
         nearly three years after injury and claimant engaged in sports 
 
         and weight-lifting activities that could have caused his current 
 
         disability.
 
         
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         OSCAR L. MULDER,                             File No. 698080
 
         
 
              Claimant,                                R E V I E W -
 
         
 
         vs.                                         R E O P E N I N G
 
         
 
         GILBERTVILLE MILLING COMPANY,                D E C I S I O N
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            FEB 06 1989
 
         
 
         HAWKEYE-SECURITY INSURANCE CO.,            INDUSTRIAL SERVICES
 
         
 
              Insurance Company,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by Oscar L. 
 
         Mulder, claimant, against Gilbertville Milling Company, employer, 
 
         and Hawkeye-Security Insurance,Company, insurance carrier, 
 
         defendants, for benefits as a result of an injury that occurred 
 
         on March 18, 1982.  An agreement for settlement under Iowa Code 
 
         section 86.13 was approved on April 18, 1984 under which claimant 
 
         was paid  $10,393.69 in healing period benefits and $14,199.83 in 
 
         permanent partial disability benefits and all of claimant's 
 
         medical expenses were paid as of that date.  A hearing was held 
 
         in Waterloo, Iowa on December 14 and 15, 1987 and the case was 
 
         fully submitted at the close of the hearing, with one exception.  
 
         Nancy Meany was present to testify on December 14, 1987, but did 
 
         not testify on that date.  Due to bad weather, Nancy Meany was 
 
         unable to return to the hearing on December 15, 1987.  The 
 
         industrial commissioner, David E. Linquist, gave permission for 
 
         Nancy Meany to testify by deposition after the hearing.  The 
 
         record consists of the testimony of Oscar L. Mulder, claimant, 
 
         Nils R. Varney, Ph.D., clinical neuropsychologist, Brad S. 
 
         Mulder, claimant's son, Kayla J. Mulder, claimant's wife, 
 
         Laurence Falk, claimant's neighbor, Chris Ann Marie Boleyn, 
 
         defendants' daughter, Gerald C. Delagardelle, defendant, and 
 
         Victor Laughlin, private investigator, joint exhibits 1 through 
 
         54, and the Nancy Meany deposition which was taken on December 
 
         21, 1987 is marked as joint exhibit 55.  Joint exhibit 40, two 
 
         photographs taken by Nancy Meany were borrowed by defendants' 
 
         counsel at the time of the hearing to use in the deposition of 
 
         Nancy Meany.  These two photographs were not returned to the 
 
         record with the deposition and defendants' counsel said that he 
 
         was unable to find them. Therefore, joint exhibit 40, two 
 
         photographs, are missing from the record.
 
         
 
                                   STIPULATIONS
 
                                                
 
                                                         
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the.time of the injury;
 
         
 
              That claimant sustained an injury on March 18, 1982 which 
 
         arose out of and in the course of his employment with employer;
 
         
 
              That the rate of compensation in the event of an award is 
 
         $146.39 per week;
 
         
 
              That defendants claim no credits for benefits paid under an 
 
         employee nonoccupational group health plan or workers' 
 
         compensation benefits paid after the settlement on April 18, 1984 
 
         and before the hearing on December 14, 1987; and,
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained a change of condition after the 
 
         settlement agreement on April 18, 1984;
 
         
 
              Whether the injury was the cause of any additional temporary 
 
         disability;
 
         
 
              Whether the injury was the cause of any additional permanent 
 
         disability;
 
         
 
              Whether claimant is entitled to any additional temporary 
 
         disability benefits and if so, the nature and extent of 
 
         benefits;
 
         
 
              Whether claimant is entitled to any additional permanent 
 
         disability benefits and if so, the nature and extent of 
 
         benefits;
 
         
 
              Whether claimant is entitled to scheduled member benefits or 
 
         industrial disability benefits, in the event claimant is entitled 
 
         to additional benefits.
 
         
 
              Whether claimant is an odd-lot employee;
 
         
 
              Whether claimant is entitled to additional medical benefits; 
 
         and,
 
         
 
              Whether claimant unreasonably refused to accept medical 
 
         treatment and if so, the effect of that refusal on his 
 
         entitlement to benefits.
 
         
 
                                                
 
                                                         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant was 45 years old at the time of the injury and 51 
 
         years old at the time of the hearing.  He is married and has two 
 
         adult children.  He is a high school graduate and served in the 
 
         United States Army for one and one-half or two years in Korea
 
         
 
              At the hearing, claimant testified that he had memory and 
 
         concentration problems.  Therefore, most of the following 
 
         employment and health information came from his wife's 
 
         testimony.
 
         
 
              Prior to this employment, claimant worked for Titus 
 
         Manufacturing Company for 11 years from approximately April of 
 
         1964 until 1975.  He began as a laborer.  A year later he became 
 
         a foreman.  When the plant closed he was the assistant plant 
 
         manager and was secretary of the management club.  Claimant then 
 
         worked for Insul-Sound for approximately two years as a foreman 
 
         and later as office manager.  Claimant was unemployed for a 
 
         period of time and then began work for employer in approximately 
 
         1979 or 1980 as a truck driver.
 
         
 
              In addition to these employments, claimant has farmed his 
 
         own small home farm of 50 acres of which 35 acres is tillable. 
 
         Claimant also farmed the land owned by his wife's parents for 
 
         them.
 
         
 
              Claimant's wife denied that he had any health problems prior 
 
         to the injury of March 18, 1982 except:  (1) he suffered a severe 
 
         cut to the right hand while working for Titus Manufacturing 
 
         Company and lost one-fourth of the grip in the right hand; (2) in 
 
         1968 while working for Titus Manufacturing Company, he was taken 
 
         to Allen Hospital for violent headaches.  Claimant's wife 
 
         testified that it was determined that claimant had high 
 
         cholesterol and needed glasses, but the main reason for the 
 
         headaches was an allergic reaction to chocolate.  Claimant's wife 
 
         testified that prior to this injury claimant danced, fished, 
 
         hunted, camped, snowmobiled and played basketball regularly.
 
         
 
              On March 18, 1982, claimant was unloading bulk feed into a 
 
         customer's bin when the power shaft broke and flew out and struck 
 
         him in the left leg.  Claimant's wife testified that she saw him 
 
         in intensive care and that claimant said he hurt his leg and his 
 
         head.  She saw that his leg was red above and below the knee and 
 
         she observed swelling on his temple on the right side of his 
 
         head. She testified that claimant was conscious, but incoherent, 
 
         confused and had to be restrained.  She said claimant did not 
 
         recall going to the hospital.  Claimant's wife related that when 
 
         he came home from the hospital, he was unusually confused, quiet 
 
         and moody.  He complained a great deal about his leg and received 
 
         no more treatment for his head.
 
         
 
                                                
 
                                                         
 
              Claimant testified that he remembers leg pain and severe 
 
         headache pain in the hospital.  He testified that he does not 
 
         remember coming home from the hospital.  Claimant testified that 
 
         when the pain in his head went away, his memory went away too. 
 
         Claimant's wife testified that his leg got progressively worse up 
 
         until the time of the settlement, but that he had no headache or 
 
         right temple pain.
 
         
 
              The settlement was approved on April 18, 1984.  Claimant 
 
         testified that he remembers the conference when he settled his 
 
         case.  He and his wife were there.  When it was or what attorney 
 
         represented them, he does not remember.  Claimant averred that he 
 
         gets upset easily with people.  Claimant's wife testified that he 
 
         has grown more quiet, tried to work around the farm with the hogs 
 
         and the garden, but never returned to work for employer and has 
 
         not sought any other employment.
 
         
 
              It was asserted that all claimant can do now is to feed the 
 
         chickens and gather the eggs.  He tries to help his son mow the 
 
         yard.  In the house, all he can do without direction from his 
 
         wife is to do the dishes.  He tries to help in the garden but 
 
         just sits on his hands and knees and pulls grass.  He has no 
 
         memory for dates, names and places.  His wife gives him written 
 
         lists of what he is supposed to do and puts appointments on a 
 
         large calendar for him.  Claimant drives short distances to town 
 
                             
 
                                                
 
                                                         
 
         and back, but gets confused on long trips.  Claimant and his wife 
 
         did take a long vacation trip to Canada after the settlement.
 
         
 
              Claimant used to know how much seed and fertilizer to order, 
 
         but now he cannot remember.  He used to manage the family 
 
         finances and write the checks, but now his wife has to do it.  He 
 
         used to be able to work on the equipment, but now he cannot 
 
         figure it out. He cannot remember how much oil to put in the 
 
         vehicles on an oil change anymore.  He has to be reminded to 
 
         bathe.  He cannot smell anything since the accident and has lost 
 
         the sense of taste. Claimant's son lives at home and has to help 
 
         him with anything that requires thinking.  Most of claimant's 
 
         responses to questions on direct examination and 
 
         cross-examination were "I don't know," "I don't recall," and "I 
 
         don't remember."
 
         
 
              Claimant's wife testified that after the settlement he 
 
         became less active, quieter, talked less, avoided making decision 
 
         and stayed in the house more, close to her.  He forgot things and 
 
         blamed her.  He refused to handle the finances.  He became 
 
         ill-tempered and they had disagreements.  He would lose his 
 
         temper, have mood swings, then forget his bad conduct.  
 
         Claimant's wife said that he has had vision changes, changed his 
 
         glasses twice and has to change them again soon.
 
         
 
              Claimant's wife said that he did not renew the lease on her 
 
         parents' farm and he did not even want to talk about it.  He 
 
         loses things, like the planter book.  He forgot her birthday.  He 
 
         gets mad and loses patience with other drivers when he tries to 
 
         drive on a long trip.  He cannot find his way without directions 
 
         and help from her.  He is very dependent upon.her.  He got his 
 
         clothing caught in the PTO once and had a very close call which 
 
         only scraped his right knee.
 
         
 
              Claimant's wife testified that she works with brain-damaged, 
 
         learning disabled children and she sees the same things in her 
 
         husband that she sees in them.  His attention span is about 
 
         twenty minutes.  When he stands up, he puts out his right leg 
 
         first, then guards the left one from pain when he walks.  He is 
 
         not able to bend or stoop.  When their son required brain surgery 
 
         in 1980 after a motorcycle accident, she had to sign the papers 
 
         because claimant went to pieces.
 
         
 
              Claimant testified that he could not operate his red 
 
         International tractor with a left foot clutch due to the 
 
         condition of his left leg.  The John Deere tractor has a hand 
 
         clutch and he can operate it.  Claimant testified that he can 
 
         stand only about three minutes without a cane.  He said he can 
 
         stand 10-15 minutes with a cane.  Claimant said that he falls 
 
         down a lot due to his left leg.  He said he can walk only 100 
 
         feet with a cane.  He cannot run at all.  He said that he has 
 
         mowed with the John Deere tractor, but not for very long.  
 
         Claimant denied any back problems, head problems or left leg 
 
         problems prior to this injury on March 18, 1982.  Claimant 
 
         testified that he takes four pain pills now, but that he does not 
 
                                                
 
                                                         
 
         take any nerve medication. Claimant admitted that he did take a 
 
         nerve medication after his daughter left home and he admitted 
 
         that he was very upset at that time.  Claimant admitted that he 
 
         has not had.any medical treatment for his leg since 1983 and for 
 
         his head since 1982, except for pills prescribed by his personal 
 
         physician, R. N. Bremner, M.D., for headache.
 
         
 
              Claimant testified that he called employer once about 
 
         returning to work, but he does not remember what employer told 
 
         him.  Other than that, he has not applied for a job any place.  
 
         He has not looked in the newspaper and he did not go to Job 
 
         Service looking for a job.  He did apply for Social Security 
 
         disability. Claimant's wife testified that claimant is unable to 
 
         work.  Their son, Brad, does work.  They hire custom work.  They 
 
         rent a house to Laurence Falk even though this does not appear on 
 
         their 1986 income tax return.
 
         
 
              Claimant gave a deposition on July 13, 1987.  In this 
 
         deposition and at the hearing, he said that he had to walk with a 
 
         cane to keep from falling down (exhibit 37, page 40).  He said 
 
         that he cannot lift more than 20 pounds, can walk only 100 feet 
 
         and can drive for only about two hours (exhibit 37, pages 11-15). 
 
         He can no longer play basketball, hunt, fish like he used to, 
 
         dance, go to sales or auctions, play horseshoes, ride horseback 
 
         or sit through a movie.  He cannot drive a car, truck or tractor 
 
         that requires a clutch and he cannot do field work (exhibit 37, 
 
         pages 15-20).  He said he cannot smell or taste.  He has 
 
         difficulty speaking or thinking.  He said that he is no longer 
 
         able to buy or sell or to handle financial matters.  He cannot 
 
         figure out how much fertilizer or herbicides to apply to the 
 
         fields.  He is forgetful.  He is losing his hearing and his 
 
         vision.  He has changed his glasses twice in one year (exhibit 
 
         37, pages 20-25). He said that he involuntarily kicks his left 
 
         leg in his sleep. Social gatherings make him nervous.  He is 
 
         irritable and cries easily.  He worries a lot and is anxious 
 
         (exhibit 37, pages 25-30).
 
         
 
              Claimant did not tell his doctor about his memory and 
 
         thinking problems when his leg was being treated because they did 
 
         not bother him then.  Claimant testified that these problems 
 
         started two years ago (exhibit 37, pages 32 and 33).  Two years 
 
         prior to the deposition date would be July of 1985.
 
         
 
              Claimant said that the nurse discovered a big bump on the 
 
         side of his head when his leg was treated (exhibit 37, pages 33 
 
         and 34).  Claimant stated that he was taking no medication for 
 
         his head injury (exhibit 37, page 39).  Claimant testified that 
 
         the only work he can do now is to feed the chickens and to work 
 
         in the garden (exhibit 37, pages 40 and 41).  He admitted that he 
 
         had not made any job applications since March of 1982, he had not 
 
         looked in the classified advertisements and he had not contacted 
 
         Job Service (exhibit 37, page 42).  He said that employer had 
 
         never contacted him about returning to work (exhibit 37, page 
 
         47).
 
         
 
                                                
 
                                                         
 
              Claimant's wife also gave a deposition prior to hearing on 
 
         July 13, 1987 in which she generally corroborated claimant's 
 
         testimony.  She said that claimant's loss of smell became more 
 
         pronounced three or four years ago (exhibit 36, page 13).  Three 
 
         years ago would be July of 1984 and four years ago would be July 
 
         of 1983.  She said that claimant's eyesight is getting worse, he 
 
         suffers headaches, loses patience, sleeps restlessly and turns 
 
         and kicks a lot in his sleep.  She said that his family physician 
 
         prescribed Xanax for his nerves after their daughter ran away 
 
         from home on Labor Day in 1983, but he never took all of that 
 
         prescription and has not taken any of these pills since then 
 
         (exhibit 36, pages 16-18).
 
         
 
              Claimant's wife testified that the personality change 
 
         occurred in the last two years.  Two years prior to the 
 
         deposition would be July of 1985.  She said the loss of memory 
 
         and lack of decision-making occurred back in 1982 (exhibit 36, 
 
         page 24).
 
         
 
              Bradley S. Mulder, claimant's son, testified that he is age 
 
         24 and lives at home with his parents.  He was last employed on 
 
         October 1, 1987.  He terminated that employment in order to help 
 
         out at home because his dad could not handle the farm.  He 
 
         testified that he has worked with claimant a lot before he was 
 
         injured and previously they have hunted and fished together.  He 
 
         saw his dad in the hospital.  There was no visible head injury 
 
         and he had no head pain.  When he came home from the hospital, he 
 
         had leg pain, trouble sleeping and had to walk with a cane.  
 
         Since his father settled the workers' compensation case, his 
 
         condition is the same except for his memory loss, which he 
 
         noticed a short time later.  The witness testified that, on 
 
         mechanical matters, claimant could not remember what part went 
 
         where or how to change oil in the tractor.  The son said that he 
 
         has done the farming of the home place for the last couple of 
 
         years.  He stated that his dad watches, or runs errands, but does 
 
         not get involved.  He added that claimant only does things that 
 
         do not require thinking.  He said that claimant changes his mind 
 
         often and forgets things.
 
         
 
              The witness said that he is responsible for the chickens, 
 
         but that claimant feeds and waters them.  Claimant's son 
 
         testified that he is responsible for the garden and runs the 
 
         roto-tiller. His dad gardens on his hands and knees, tries to 
 
         help, but loses his concentration.  The witness said that 
 
         claimant is around in the summer, but cannot do much because his 
 
         leg tires in 20 minutes and he has to sit down.  In the winter he 
 
         stays in the house and comes out only occasionally to feed the 
 
         horse.  He said that this past March, claimant got on the John 
 
         Deere tractor and started it up one or two times to warm it up, 
 
         but he does not drive it.  He said that he plans to stay at home 
 
         and continue to help out because he believes that some day it 
 
         will be his place, however, he might also leave at some future 
 
         time.
 
         
 
              Chris Ann Marie Boleyn testified that she is the daughter of 
 
                                                
 
                                                         
 
         Gerald Delagardelle, the defendant in this case.  In recent 
 
         years, she has-worked at three business establishments that 
 
         claimant has patronized and that she has had the opportunity to 
 
         observe him on a number of occasions.  When she worked at the 
 
         Gilbertville Mini-Mart from October of 1980 to June of 1984, she 
 
         saw claimant come in and buy gas.  Boleyn testified that claimant 
 
         did not use a cane and claimant did not limp.  It was her opinion 
 
         that he did limp after he saw her and identified her.
 
         
 
              She testified that she worked at the Family Mart from June 
 
         of 1984 to July of 1986, but she did not recall seeing claimant 
 
         while she was employed there.  However, she did see claimant 
 
         outside of her job driving his truck on the road.
 
         
 
              She stated that she worked at Bradfields Jack and Jill Store 
 
         beginning in September of 1986.  She stated that she saw claimant 
 
         there once with his wife in October of 1987.  She stated that 
 
         claimant walked without a cane at that time.  On 
 
         cross-examination, she admitted that she had not seen claimant 
 
         much in the last couple of years.
 
         
 
              Gerald C. Delagardelle testified that he is age 62 and 
 
         employed by Gilbertville Milling Company, Inc.  Claimant never 
 
         asked to be reemployed by employer.  He understood claimant could 
 
         not work at all after the injury, but he observed him shingling 
 
         the roof of his house and he photographed him on the roof with 
 
         two other men on October 18, 1983.  Also, on June 14, 1984, he 
 
         photographed claimant driving his tractor hauling a load of grain 
 
         to town (exhibit 39).  He testified that claimant was driving the 
 
         red International 556 tractor with the left foot clutch. 
 
         Delagardelle also testified that he has observed claimant several 
 
         times driving his tractor or his pickup truck alone in 1985 and 
 
         in 1986.  The witness stated that he lives near the claimant's 
 
 
 
                             
 
                                                         
 
         home, that claimant has to drive past his house and that he saw 
 
         claimant four or five times in 1983 and 1984 hauling grain with 
 
         the red International tractor which requires the left foot 
 
         clutch. Delagardelle said that, in 1983, prior to the settlement, 
 
         he saw claimant plowing a field that claimant rents from 
 
         nonrelatives. Delagardelle's son-in-law reported to him that he 
 
         saw claimant roto-till his garden a year ago in 1985.  
 
         Delagardelle said that his wife reported to him that she saw 
 
         claimant repairing a door on his rental house and that she saw 
 
         him run across the yard and back in 1987.
 
         
 
              Delagardelle testified that claimant had a concussion in 
 
         1981.  He reported it on workers' compensation, but claimant was 
 
         probably not off work long enough to be paid.  Delagardelle 
 
         testified that he has seen claimant driving frequently.  He also 
 
         saw him carrying his grandchild across the bank parking lot 
 
         without a limp and without a cane, but he does not recall when 
 
         that was.
 
         
 
              Delagardelle acknowledged on cross-examination that he saw 
 
         claimant standing on his roof, but he did not see him shingling. 
 
         He saw a ladder at the front of the house, but he does not know 
 
         how claimant got up on the roof.  He stated that he did not 
 
         terminate claimant's employment.  Claimant just did not come back 
 
         to work.  Delagardelle granted that no vocational rehabilitation 
 
         was offered, but that he had no control over that as the 
 
         insurance company was the one who would handle that.  He admitted 
 
         that he did not try to reemploy claimant.
 
         
 
              Laurence Falk, who rents a house on claimant's property, has 
 
         been a neighbor for approximately one and one-half years and he 
 
         shares the same driveway with claimant.  He testified that 
 
         claimant's ability to farm is limited.  He testified that 
 
         claimant's son, Brad, does the work.  Claimant basically feeds 
 
         the chickens, waters the horse and mows the lawn and that takes 
 
         him all day.  Claimant cannot do much physically.  He limps and 
 
         lacks mobility.  Witness has had to help him on and off his 
 
         horse.  He testified that claimant is forgetful, changes his mind 
 
         often, gets angry easily and is becoming increasingly more 
 
         aggressive.  He does walk without a cane sometimes to the barn 
 
         and to the chicken house.
 
         
 
              Victor Laughlin testified that he has been a private 
 
         investigator since 1978.  It was stipulated that he is a 
 
         qualified private investigator and also a professional 
 
         photographer.  He understands that he is to report what he sees 
 
         and not give his opinions.  He carried out surveillance on 
 
         claimant in August of 1986 on three separate dates and took 
 
         photographs.  Exhibit 38 contains 56 photographs and exhibit 54 
 
         contains three photographs taken by Laughlin.
 
         
 
              Laughlin testified that, at 9:00 a.m. on August 4, 1986, he 
 
         approached claimant's farm by way of a wooded area, a swamp and 
 
         some tall trees.  At approximately 10:00 a.m., he observed 
 
         claimant get on a tractor, start it up and mow a very large field 
 
                                                
 
                                                         
 
         which was approximately 150 yards long and 150 yards wide 
 
         (exhibit 54).  Laughlin testified that claimant mowed this field 
 
         for approximately two and one-half hours from approximately 10:00 
 
         a.m. to approximately 12:30 p.m.  He stated that claimant drove 
 
         the John Deere tractor with the hand clutch.
 
         
 
              Laughlin said that claimant then moved to another area, 
 
         mostly out of sight, at the top of a hill and mowed up there. 
 
         Laughlin also stated that claimant cleaned up some junk and 
 
         debris like some old tires, a roll of fence wire and some boards 
 
         on the ground near the garage and near the house.  Laughlin 
 
         stated that claimant bent over, picked these items up, lifted 
 
         them up and placed them over the fence onto the other side 
 
         without apparent difficulty so that he could mow that area.
 
         
 
              The private investigator also took several photographs of 
 
         claimant working in the garden with his wife for approximately 30 
 
         minutes.  In the photographs, claimant is bending over, stooping 
 
         down on his right knee, kneeling and carrying buckets of produce. 
 
         He threw vegetables out of the garden.  He carried pails in the 
 
         garden and picked tomatoes.  He picked up pails full of corn and 
 
         carried the pails for approximately 100 yards.  He got down on 
 
         all fours and was digging in the garden (exhibit 38).
 
         
 
              Laughlin testified that, during all of these activities, 
 
         claimant did not limp or need a cane or any supports of any kind 
 
         to stand or walk.  Laughlin testified that claimant walked up and 
 
         down the steps to his house without any difficulty at all.  He 
 
         said claimant had no balance problems.  He said claimant did not 
 
         have to grab his knee.  He testified that claimant did not appear 
 
         to be in any pain.  Laughlin testified that claimant walked like 
 
         a normal person.  Laughlin added that claimant did not appear to 
 
         be mentally handicapped in any manner.
 
         
 
              The witness stated that he returned to claimant's farm on 
 
         August 7, 1987, but did not observe claimant on that date.  The 
 
         witness then returned to claimant's farm on August 11, 1987 and 
 
         was setting up to take pictures when he was attacked by 
 
         claimant's dog.  Laughlin told claimant's son that he was a 
 
         member of the Audubon.Society and that he was there to photograph 
 
         woodpeckers. The detective testified that he called his wife on 
 
         his two-way radio to,pick him up.  Claimant and his son then 
 
         chased Laughlin's wife in her van.  Laughlin's wife reported to 
 
         him that claimant tried to run her off the road and pointed 
 
         what.appeared to be a gun at her.  This was the end of the 
 
         surveillance.
 
         
 
              On rebuttal, claimant testified that he first got a cane in 
 
         the winter after the injury because he needed it for balance, 
 
         security and support; but sometimes he walked without a cane or 
 
         left it in the car or at home.  Claimant's wife testified that 
 
         she called Dr. Bremner and asked for a cane for claimant after 
 
         the summer of 1985, when claimant fell after he sawed tree limbs.  
 
         She testified that she felt he would need it for better footing 
 
         in the winter.  She paid for it because workers' compensation 
 
                                                
 
                                                         
 
         would not pay for it since she did not have a doctor's 
 
         prescription for the cane.
 
         
 
              The medical records show that Philip E. Rohrbaugh, M.D., 
 
         reported that claimant got hit in the left side with a metal 
 
         object, fell down and in the process, hit his head against a 
 
         truck.  He was admitted to the CCU unit at St. Francis Hospital 
 
         on March 18, 1982 for three days for a contusion of the left 
 
         knee, sprain of the left thigh, injury to the left leg with nerve 
 
         injury and head trauma (exhibit 1).
 
         
 
              On June 10, 1982, Ashok Nakhasi, M.D., a board-certified 
 
         neurologist, reported that he saw claimant on April 9, 1982.  He 
 
         said claimant was injured on March 18, 1982 at which time 
 
         claimant reported pain over the left eye, pain in the left lower 
 
         quadrant of the abdomen and left thigh tenderness.  Extensive 
 
         x-rays were normal.  He saw claimant again on May 7, 1982.  Dr. 
 
         Nakhasi said that claimant's neurological examination was normal 
 
         except for decreased strength of the dorsiflexors of the left 
 
         ankle.  Motor strength, DTR and plantar reflexes were normal.  He 
 
         said claimant did have sensory symptoms and numbness of the 
 
         plantar aspect of the left foot, however, there was no objective 
 
         abnormality and no further investigation was advised (exhibit 3, 
 
         page 1).  The St. Francis Hospital clinical history dated March 
 
         18, 1982, states that there is a past history of one episode of 
 
         loss of consciousness.  Claimant was hospitalized and the initial 
 
         workup was negative.  He had not had any further episodes after 
 
         that (exhibit 3, page 2; exhibit 41, page 2).
 
         
 
              Dr. Nakhasi reported again on June 24, 1982 that claimant 
 
         complained of tingling in the distal plantar aspect of the left 
 
         foot and pain in the left knee when standing from sitting. 
 
         Physical examination revealed that strength in all muscle groups 
 
         in both upper and lower extremities was within normal limits. 
 
         Reflexes were normal.  Sensory exam to position, vibration and 
 
         pin were within normal limits.  Dr. Nakhasi said that claimant's 
 
         minimal sensory symptoms were not disabling and said that 
 
         claimant could return to normal work (exhibit 4).
 
         
 
              Claimant was sent to the University of Iowa Hospitals and 
 
         Clinics on August 5, 1986 for severe pain and weakness in the 
 
         left leg which prevented claimant from working since the date of 
 
         the accident on March 18, 1982.  Heat medication, and TENS had 
 
         not helped.  E. Peter Bosch, M.D., of the department of neurology 
 
         examined and evaluated claimant.  He said that nerve conduction 
 
         studies of the peroneal, tibial and sural nerves were normal. 
 
         Needle EMGs revealed no denervation.  Orthopaedic consultation 
 
         found no cause for patient's pain.  Dr. Bosch concluded that it 
 
         was his impression that claimant did not have a neurologic 
 
         injury. Claimant declined to be seen at the pain clinic (exhibit 
 
         5, pages 1 and 2; exhibit 47, pages 14 and 15).
 
         
 
              Claimant was examined by Michael Z. Piburn, Jr., M.D., of 
 
         Psychological Medicine Associates who said on September 8, 1982 
 
         that claimant reported numbness and diffuse weakness in his left 
 
                                                
 
                                                         
 
         leg that prevented him from working because he could not operate 
 
         a clutch to drive a truck.  Claimant also complained of insomnia 
 
         and left leg thrashing at night and also left leg restlessness 
 
         during the day.  Dr. Piburn said that claimant had a legitimate 
 
         pain syndrome related to the accident of March 18, 1982 (exhibit 
 
         6).
 
         
 
              Dr. Piburn reported on September 13, 1982 that he felt 
 
         claimant may have causalgia from the severe blow even though his 
 
         neurological examination was normal (exhibit 7).
 
         
 
              Dr. Piburn reported on three different occasions that 
 
         claimant was opposed to a sympathetic nerve block.  He said that 
 
         unless claimant has some treatment with a sympathetic nerve 
 
         block, he would not be able to tell how reversible his pain is 
 
         (exhibit 9).
 
         
 
              On December 6, 1982, Dr. Piburn said that, unless claimant 
 
         improves, he will be limited in walking and standing ability and 
 
         will not be able to use his left leg to use a clutch or brake on a 
 
         motor vehicle.  He said that claimant should not lift more than 
 
         20-25 pounds or do anything to cause him to squat or kneel.  Dr. 
 
         Piburn said that, if claimant undergoes sympathetic nerve blocks, 
 
         he may improve more.  If claimant does not undergo sympathetic 
 
         nerve blocks, then he has reached maximum medical improvement.  
 
         Dr. Piburn added that the idea of sympathetic nerve blocks 
 
         frightens claimant so badly that he did not know if he could 
 
         undergo them (exhibit 10).
 
         
 
              On January 11, 1983, Dr. Piburn rated claimant with a 30% 
 
         functional loss of the entire lower left leg which he said would 
 
         correspond to 15% of the total body (exhibit 11).
 
                             
 
                                                
 
                                                         
 
              Dr. Rohrbaugh, claimant's personal physician and family 
 
         physician who practices with Dr. Bremner, succinctly summarized 
 
         his care of claimant for this injury from April 2, 1982 for 
 
         several visits to September 7, 1982.  At that time, his opinion 
 
         was resolving contusion of the left lower extremity with 
 
         persistent pain, paresthesias and painful limb syndrome.  He said 
 
         he referred claimant to Dr. Piburn for pain control as 
 
         recommended by the University of Iowa (exhibit 12).
 
         
 
              Claimant was examined for defendants by Arnold E. Delbridge, 
 
         M.D., an orthopaedic surgeon, on February 9, 1983.  He diagnosed 
 
         pain in the left lower extremity.  He said claimant had a 13% 
 
         impairment of the total man (exhibit 13; exhibit 46).
 
         
 
              On September 19, 1983, Dr."Delbridge told claimant's counsel 
 
         that appropriate treatment, other than mild exercise, has never 
 
         been attempted because this gentlemen would not consent to it. 
 
         Therefore, in his opinion this mitigates against a very high 
 
         impairment rating.  He noted that claimant was initially examined 
 
         for head injury and abdominal injury from which he had a good 
 
         recovery (exhibit 14).
 
         
 
              Claimant settled this claim for the injury on April 18, 1984 
 
         pursuant to Iowa Code section 86.13 and was paid for 71 weeks of 
 
         healing period benefits in the amount of $10,363.69 and for 97 
 
         weeks of permanent partial disability benefits in the amount of 
 
         $14,199.83 based upon an industrial disability of 19.4% and a 
 
         rate of $146.39 per week.  Defendants also paid all reasonable 
 
         and necessary medical expenses at that time.  The settlement was 
 
         approved on April 18, 1984 (exhibits 15 and 16).
 
         
 
              Claimant then filed this original notice and petition for 
 
         review-reopening on July 19, 1985.
 
         
 
              The next event was that claimant saw Nils R. Varney, Ph.D., 
 
         a board-certified neuropsychologist on August 3, 1985.  He 
 
         administered several psychological tests.  He reported that 
 
         claimant had problems with language, concentration and memory 
 
         retention.  He also noted depressive symptoms which include 
 
         dysphoria, insomnia, anergia, irritability, crying spells, 
 
         suicidal ideation, diminished sex drive and indifference to 
 
         previously preferred activities.  Dr. Varney reported:
 
         
 
              Mrs. Mulder reports a full array of psychosocial symptoms of 
 
              a type typical in patients with orbital frontal damage.  
 
              These include absentmindedness, indecisiveness, poor planning 
 
              and anticipation, an inability to carry through tasks once 
 
              they are initiated, non-spontaneity, perplexity responses, 
 
              irritability, poor impulse control, limited insight and 
 
              empathy, over-reaction to pressure, and impolitic social 
 
              behaviors.
 
         
 
         (Exhibit 17)
 
         
 
              Dr. Varney's impression was:  (1) language diminution, (2) 
 
                                                
 
                                                         
 
         psychological defects typical with frontal orbital damage, and 
 
         (3) organic affective disorder.  Dr. Varney indicated that 
 
         medication could possibly improve his depression.  He concluded 
 
         by saying that claimant was totally disabled (exhibit 17).
 
         
 
              The next event was that claimant saw Lawrence Rinder, M.A., 
 
         on April 1, 1986 for a psychological evaluation requested by the 
 
         Social Security Determination Services.  Mr. Rinder performed 
 
         many of the same tests that Dr. Varney performed.  Claimant 
 
         reported to Mr. Rinder that muscles and nerves in his leg give 
 
         out when he walks, he lost the sense of smell and hearing, he has 
 
         trouble with his eyesight, his memory is gone, he has headaches 
 
         and does not sleep well at night.  Mr. Rinder concluded as 
 
         follows:
 
         
 
              There is a possibility of some brain damage, but certainly 
 
              this man is having problems with both immediate and remote 
 
              memory.  He is an anxious, depressed individual which may be 
 
              effecting [sic] his memory.  His judgment is fair.  He has 
 
              problems in organizing his thoughts and planning for the 
 
              future.  He operates primarily on a trial and error basis, 
 
              although it is possible that in the past he was better 
 
              organized than he is now.
 
         
 
         (Exhibit 18)
 
         
 
              Claimant then saw N. S. Pangilinan, M.D., a psychiatrist, on 
 
         April 7, 1986 relative to the Social Security disability 
 
         determination.  Dr. Pangilinan said that the psychological 
 
         testing available for his perusal, Mr. Rinder and Dr. Varney, did 
 
         indicate organicity or brain damage, indication of intellectual 
 
         decline and cognitive impairment of this man.  He said that this 
 
         man claims memory and concentration problems, his wife has to 
 
         make decisions for him, loss of sense of smell, persistent 
 
         blurriness of vision and difficulty hearing.  Dr. Pangilinan 
 
         concluded as follows:
 
         
 
              DIAGNOSIS:
 
         
 
              Dysthymic disorder or chronic reactive depression.  Organic 
 
              brain syndrome due to head injury.  Causalgia.
 
         
 
              IMPRESSIONS AND RECOMMENDATIONS:
 
         
 
              From a psychiatric point of view, I believe that he does 
 
              have a severe impairment in the form of an organic brain 
 
              syndrome which has effected [sic] his intellectual 
 
              functioning, cognitive and concentration abilities.  Also, I 
 
              do think that this man continues to be situationally 
 
              depressed (secondary depression), because of continuing 
 
              realistic stresses (chronic pain, loss of self-esteem due to 
 
              unemployment, financial or economic stresses, etc.).  
 
              Further, it appears that he, in fact, is suffering from a 
 
              great deal of discomfort due to continuing discomfort in his 
 
              left lower extremity (causalgia).
 
                                                
 
                                                         
 
         
 
              If awarded benefits I feel that he is capable" enough to 
 
              manage the benefit payment son (sic) his own behalf.
 
         
 
         (Exhibit 19)
 
         
 
              Claimant was awarded Social Security disability benefits and 
 
         was examined again for a review of his disability status by Dr. 
 
         Pangilinan on September 4, 1987.  The.doctor said that claimant's 
 
         problems started with an accident in March of 1982.  Claimant 
 
         reported that his leg, memory and concentration problems 
 
         persisted and were getting worse and since the last examination, 
 
         he had developed more persistent low back pain.  Claimant 
 
         asserted that he continued to have nervousness, depression, no 
 
         sense of smell, blurriness of vision and a poor sense of taste.  
 
         Claimant demonstrated to Dr. Pangilinan a list of analgesic, 
 
         anti-inflammatory and anti-infection medications that he was 
 
         taking. The list also showed Xanax which is an anti-anxiety 
 
         agent.  Dr. Pangilinan finished his report as follows:
 
         
 
              My diagnostic impression continues as Dysthymic disorder or 
 
              Chronic reactive depression and organic brain syndrome 
 
              probably due to head injury.  Also, causalgia and low back 
 
              pain.  It is my opinion that he continues to be impaired 
 
              physically and psychiatrically as far as the issue of return 
 
              to work.
 
         
 
              If his benefits continue, I feel that he is capable of 
 
              managing the benefit payments on his own behalf.
 
         
 
         (Exhibit 20)
 
         
 
              Dr. Varney gave a deposition on January 21, 1986 that 
 
         supports his earlier written report (exhibit 21).  In this 
 
         deposition, he stated that he had testified on legal claims so 
 
         many times that he had lost count.  He estimated it at 75-100 
 
         times.  He said that he testified for claimants as opposed to 
 
         defendants at least 4-1 times (exhibit 21, page 90).
 
         
 
              Roger Marquardt, a private vocational rehabilitation 
 
         consultant, testified by deposition on December 7, 1987 that he 
 
         saw claimant on September 11, 1985 for his Social Security 
 
         disability claim.  He said that he saw claimant again on December 
 
         7, 1987.  Claimant told him that his ability to concentrate had 
 
         gotten worse, his vision was worse (he was changing glasses twice 
 
         per year), his leg was worse, his hearing had decreased, his 
 
         headaches had increased, arthritis was setting in and causing him 
 
         low back pains, his motivation was gone, he expressed daily loss 
 
         of memory (exhibit 24, pages 11-14).  Marquardt opined that, due 
 
         to the condition of physical and psychological impairments, 
 
         claimant could not return to his past work, could not use past 
 
         skills in alternative work and could not perform simple, routine, 
 
         repetitive unskilled work.  He stated claimant was not competent. 
 
         He is actively unemployable (exhibit 24, pages 15-16, 20-22 and 
 
         33-36).
 
                                                
 
                                                         
 
         
 
              Claimant first filed an application for Social Security 
 
         benefits on December 8, 1983 even prior to the settlement on 
 
         April 18, 1984.  This claim was denied and claimant did not 
 
         pursue his appellate rights.  Claimant filed a second application 
 
         for Social Security disability benefits on January 21, 1985.  
 
         This claim was denied, defendant appealed, the opinion of Dr. 
 
         Pangilinan was then requested and claimant was granted Social 
 
         Security disability benefits on June 12, 1986.  This 
 
         determination considered all of claimant's health factors and 
 
         also entitled claimant to Medicare coverage for medical 
 
         expenses.
 
         
 
              Claimant saw Michael J. Taylor, M.D., a board-certified 
 
         psychiatrist in Des Moines, at the request of defendants on 
 
         September 11, 1986.  Dr. Taylor noted that claimant was severely 
 
         depressed, but that he had received no treatment for his 
 
         depression and that he would quite clearly benefit from 
 
         treatment. Dr. Taylor proposed a course of treatment in the 
 
         hospital for approximately 21 days where claimant could be 
 
         observed and treated with antidepressant and possibly Tegretol 
 
         which Dr. Taylor believed could best be accomplished ideally and 
 
         most quickly at his hospital, Iowa Lutheran Hospital in Des 
 
         Moines.  He added that this man's ability to make decisions is 
 
         greatly influenced by his depression.  He said that he was 
 
         concerned that, left to his own devices, claimant would continue 
 
         life as it is because of his hopelessness (exhibit 50).  Claimant 
 
         refused this treatment (exhibits 25 and 26),.
 
         
 
              Claimant stated that his reason for refusing Dr. Taylor's 
 
         treatment was as follows:
 
         
 
              Q.  Is there any particular reason you didn't want Dr. 
 
                             
 
                                                
 
                                                         
 
              Taylor to treat you?
 
         
 
              A.  Yeah.  If my records were good enough -- good enough for 
 
              him to read and diagnose me from the doctors I saw up here, 
 
              then the doctors up here ought to be good enough to treat 
 
              me.
 
         
 
         (Exhibit 37, page 36)
 
         
 
              Dr. Taylor gave a deposition on August 13, 1987.  He stated 
 
         he is board-certified in psychiatry and has practiced in Des 
 
         Moines since 1976 at Mercy, Methodist and Lutheran Hospitals.  He 
 
         previously taught for two years at the University of Iowa and 
 
         currently gives lectures at several hospitals.  Dr. Taylor stated 
 
         that he examined a large volume of medical information on 
 
         claimant before he examined him on September 11, 1986.  This data 
 
         included medical reports from Dr. Piburn, Dr. Varney, Mr. Rinder, 
 
         Dr. Pangilinan, and Mr. Marquardt.  He said that claimant and his 
 
         wife were very bitter and frustrated.  Claimant himself was very 
 
         hopeless about his situation and his hopelessness seemed to 
 
         greatly influence his decision-making process as far as getting 
 
         any treatment for what he was experiencing..
 
         
 
              Dr. Taylor took a history from claimant, questioned claimant 
 
         about different psychiatric signs and symptoms that claimant had 
 
         experienced, and then gathered information from claimant's wife 
 
         which confirmed the information supplied by claimant.  He did not 
 
         perform tests because he had the test results available to him 
 
         done by Dr. Varney and Mr. Rinder.  Dr. Taylor related that he 
 
         thought claimant was so depressed and so hopeless at the time he 
 
         saw him that it would be a waste of money to perform any more 
 
         tests at that point in time, given the severity of his depression 
 
         and attitude (exhibit 27, pages 1-10).
 
         
 
              Dr. Taylor diagnosed a major depressive disorder.  There 
 
         were some indications of organic brain syndrome, but the testing 
 
         was not thorough enough and it was so clouded by depression that 
 
         it was not possible to rule in or rule out the existence of brain 
 
         damage at that point (exhibit 27, page 11).  Dr. Taylor thought 
 
         that the first step was to remove the depression and to give 
 
         claimant some hope for a better life through antidepressant 
 
         medications that can be monitored most effectively during 
 
         hospitalization.  Then, if there were residual symptoms of head 
 
         injury, Tegretol could be administered for organicity.  Dr. 
 
         Taylor also suggested a 24-hour EEG.  This psychiatrist stated 
 
         that, without this treatment, it was not possible to determine 
 
         the extent to which claimant is impaired by any organic brain 
 
         damage or to determine his employability (exhibit 27, page 
 
         11-16).
 
         
 
              Dr. Taylor generally agreed with Dr. Varney's diagnosis, but 
 
         he disagreed with Dr. Varney's prognosis because there was not 
 
         nearly enough information to make a prognosis.  Claimant and his 
 
         wife told Dr. Taylor that these difficulties began two or three 
 
         years ago.  Since claimant was examined on September 11, 1986, 
 
                                                
 
                                                         
 
         that would mean these difficulties began in September of 1983 or 
 
         September of 1984 (exhibit 27, pages 11-17, 30).
 
         
 
              Dr. Taylor testified that he and the psychologists that he 
 
         worked with disagreed with Dr. Varney's testing methods.  Dr. 
 
         Taylor said that he and other psychologists he has worked with 
 
         have found Dr. Varney's methods disconcerting.  They seem to be 
 
         relatively haphazard using portions of tests.  Therefore, he did 
 
         not have a great deal of confidence in the conclusions arrived at 
 
         by Dr. Varney based upon his testing (exhibit 27, pages 16, 
 
         23-24).  Dr. varney did admit that he skipped portions of tests 
 
         in his procedures (exhibit 21, page 20).
 
         
 
              Dr. Taylor agreed that loss of sense of smell was a symptom 
 
         of a closed head injury (exhibit 27, page 24).  He also admitted 
 
         that loss of sense of smell indicates there is some organic brain 
 
         damage, assuming that there is in fact a loss of the sense of 
 
         smell (exhibit 27, page 29).  Dr. Taylor testified that the 
 
         depression was caused by the injury (exhibit 27, pages 29 and 
 
         30).
 
         
 
              Dr. Taylor agreed with claimant's earlier doctors about the 
 
         left leg injury.  The EMG was normal, muscle strength was normal, 
 
         there was no neurologic impairment, and they hypothesized that 
 
         his problem was causalgia (exhibit 27, pages 30 and 31).  This 
 
         psychiatrist agreed that claimant might be paranoid about 
 
         treating with defendants' doctor after he discovered the 
 
         surveillance that defendants had done at his home (exhibit 27, 
 
         page 33).
 
         
 
              Dr. Taylor testified that he is convinced that claimant can 
 
         get significantly better with treatment.  He agreed that Dr. 
 
         Hines at Ottumwa or Dr. Nieman at Iowa City would be acceptable 
 
         physicians (exhibit 27, pages 34 and 35).  Dr. Taylor also agreed 
 
         that it is possible that claimant had an organic situation, and 
 
         if he did it is possible that it springs from this accident.  Dr. 
 
         Taylor replied "Yes.  That's my best guess."  (exhibit 27, page 
 
         35).  He also agreed that claimant was not capable of working at 
 
         -the time he saw him (exhibit 27, page 35).  Dr. Taylor said that 
 
         he disagreed with Dr. Varney's tendency to jump to the conclusion 
 
         that, if there is a loss of sense of smell, then there must be 
 
         extensive neuropsychological damage (exhibit 27, page 37).  He 
 
         said that all of claimant's symptoms, except the loss of sense of 
 
         smell, could be explained by either depression or by head injury 
 
         (exhibit 27, page 38).  Claimant, and it appears his attorney 
 
         also, refused to treat with Dr. Taylor (exhibit 29), but they did 
 
         agree to take the same treatment from Dr. Pangilinan (exhibit 30) 
 
         or Dr. Verduyn, a head injury specialist at Waterloo (exhibit 
 
         31). Claimant's attorney said that he would make an appointment 
 
         with Dr. Verduyn at the Head Injury Clinic in Waterloo on April 
 
         7, 1987 and that claimant will be treated there (exhibits 32 and 
 
         33). There is no record that such treatment was arranged or that 
 
         it ever occurred.
 
         
 
              Dr. Varney did send claimant to Marc E. Hines, M.D., a 
 
                                                
 
                                                         
 
         neurologist at Ottumwa on September 24, 1987 for 24-hour EEG 
 
         which was normal and disclosed no abnormalities (exhibit 34, 
 
         pages 1-4).
 
         
 
              Gene Yagla, an attorney who defended claimant's employer, 
 
         Gerald Delagardelle, on a third party action brought by claimant 
 
         for gross negligence arising out of this accident, testified that 
 
         he observed claimant at a deposition and also at a later time in 
 
         a restaurant.  At the deposition, claimant was in pain, 
 
         complained of leg discomfort and had to stand and sit down from 
 
         time to time. He later observed claimant in a restaurant with his 
 
         family and friends.  In the restaurant, claimant walked about 
 
         without a limp and without using his cane.  Yagla said that after 
 
         claimant recognized him, he began to limp and he began to use his 
 
         cane (exhibit 43).
 
         
 
              Claimant was hospitalized from July 19, 1968 to July 23, 
 
         1968 due to severe pain in the neck.  He was walking across the 
 
         floor and suddenly felt a sharp blow in the back of his neck.  
 
         His vision became blurred, he lost strength in his right hand, 
 
         and had headaches.  Several tests were performed, but no definite 
 
         diagnosis was made.  An aneurysm was suspected.  Claimant was 
 
         advised to have further studies done (exhibit 47, page 51; 
 
         exhibit 53, pages 1-6).
 
         
 
              Delagardelle testified that claimant also had a concussion 
 
         head injury in 1981 at work.  He lost only three days from work, 
 
         however, and therefore no workers' compensation benefits were 
 
         paid.
 
         
 
              Nancy Meany testified that she is the daughter of 
 
         Delagardelle.  She has observed claimant several times running 
 
         his tractor.  She identified two photographs of claimant which 
 
         she took which showed him plowing a field (exhibit 40).  Attorney 
 
         for defendants took these two photographs to use when taking 
 
         Meany's deposition, but they were not returned to the file when 
 
         the deposition was sent to the industrial commissioner's office. 
 
         Defendants' attorney wrote a letter on January 29, 1989 that, 
 
         after a diligent search with all possible sources, he has not 
 
         been able to locate these two photographs.
 
         
 
              Dr. Varney testified at the hearing that frontal lobe 
 
         injuries cause memory troubles, depression and partial complex 
 
         seizures.  They can also cause loss of sense of smell and taste 
 
         and diminished spontaneous thinking which results in fewer 
 
         decisions made and fewer activities accomplished.  These patients 
 
         become frustrated, irritable and paranoid.  Their spouses feel 
 
         abandoned as the patient becomes more and more dependent.  Dr. 
 
         Varney said that it was ordinary for the gradual onset of 
 
         symptoms to not become fully manifested for as long as two years 
 
         (transcript, page 17 ).  Dr. Varney testified that claimant was 
 
         totally disabled as a result of his neuropsychological 
 
         symptomatology and deficits (transcript, page 21).  Dr. Varney 
 
         agreed with Dr. Taylor that claimant was very depressed.  Dr. 
 
         Varney disagreed with treating claimant with antidepressant 
 
                                                
 
                                                         
 
         medication.  He thought that Dr. Taylor's recommendation to treat 
 
         the depression first with antidepressant medications would be 
 
         dangerous.  He stated that claimant had a frontal lobe injury and 
 
         still would not employable even if he did not have the seizures 
 
         which he said claimant was having.  Dr. Varney said that the 
 
         injury of March 18, 1982 was the cause of claimant's head injury 
 
         (transcript, pages 22-26).
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 86.14(2) provides for a review-reopening 
 
         when the condition of the employee warrants an end to, 
 
         diminishment of, or increase of compensation subsequent to a 
 
         prior award or settlement.
 
         
 
              The operative phrase in review-reopening is "change of 
 
         condition."  Lawyer and Higgs, Iowa Workers' Compensation Law
 
         and Practice, section 20.2.
 
         
 
              The proponent must sustain the burden of proof by a 
 
         preponderance of the evidence of a change of condition as a 
 
         result of the original injury.  Stice v. Consolidated Ind. Coal 
 
         Co., 228 Iowa 1031,  291 N.W. 452 (1940); Henderson v. Iles, 250 
 
         Iowa 787, 96 N.W.2d 321 (1959)
 
         
 
              The employee must prove, by a preponderance of the evidence, 
 
         that the increase in incapacity on which he bases his claim is 
 
         the result of the original injury.  Wagner v. Otis Radio & 
 
         Electric Co., 254 Iowa 990, 993-994, 119 N.W.2d 751, 753 (1963); 
 
         Henderson v. Iles, 250 Iowa 787, 793-794, 96 N.W.2d 321, 34 
 
         (1959).
 
         
 
              If there is substantial evidence of a worsening of condition 
 
                        
 
                                                
 
                                                         
 
         not contemplated at the first award, then a review-reopening is 
 
         justified.  Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 
 
         109 (1957).
 
         
 
              A change of condition may be something other than a physical 
 
         or a medical one.  A change in earning capacity, subsequent to 
 
         the initial award, caused by the original injury can also 
 
         constitute a change of condition.  Blacksmith v. 
 
         All-American,Inc., 290 N.W.2d 348 (Iowa 1980); McSpadden v. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              A redetermination of the condition of claimant as it was 
 
         adjudicated by a prior award is inappropriate.  Stice, 228 Iowa 
 
         1031, 1038, 291 N.W. 452, 456; Sheriff v. Inter-City Express, 
 
         34th Biennial Report of the Industrial Commissioner, 302 (App. 
 
         Decn. 1978) (District court affirmed).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained a change of 
 
         condition with respect to his left leg injury.  There is no new 
 
         medical treatment, no new medications, no surgery, no increase in 
 
         impairment, no change in claimant's economic condition, no new 
 
         medical reports or medical evidence concerning the left leg after 
 
         the settlement of April 18, 1984.  Claimant did not describe a 
 
         worsening of his condition of the left leg, but rather his 
 
         complaints about the left leg were generally the same as before 
 
         the settlement.  In conclusion, claimant did not prove either a 
 
         medical or a nonmedical change of condition with respect to his 
 
         left leg injury after the settlement on April 18, 1984.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence of a change of condition in that he suffered a 
 
         major depression caused by an injury to his head which occurred 
 
         in the accident of March 18, 1982.  The first psychiatrist to see 
 
         claimant, Dr. Pangilinan, found on two occasions, April 7, 1986 
 
         and again on September 4, 1987, that claimant had chronic 
 
         reactive depression.  Dr. Pangilinan did not specifically state 
 
         that this condition was caused by the accident that occurred on 
 
         March 18, 1982; but that is the history he used, he proceeds on 
 
         that basis and no other cause is suggested in his reports 
 
         (exhibits 19 and 20).
 
         
 
              The second psychiatrist, Dr. Taylor, also diagnosed a major 
 
         depressive disorder (exhibit 27, page 11).  He said that 
 
         claimant's depression was caused by this injury (exhibit 27, 
 
         pages 29 and 30).  Dr. Taylor said that Dr. Varney's testing was 
 
         some indication of organic brain syndrome, but that the testing 
 
         was not thorough enough and that claimant's condition was so 
 
         clouded by his depression that it was,not possible to, rule in or 
 
         rule out the existence of brain damage at that point (exhibit 27, 
 
         page 11).
 
         
 
              Dr. Pangilinan, who examined claimant twice, was careful not 
 
         to specifically find brain damage, organicity, organic brain 
 
         injury, frontal lobe injury or partial complex seizures.  Dr. 
 
                                                
 
                                                         
 
         Pangilinan instead preferred to limit his diagnosis to simply the 
 
         general statement of organic brain syndrome on both occasions 
 
         that he examined claimant (exhibits 19 and 20).
 
         
 
              Dr. Taylor said that claimant would have organic brain 
 
         damage, assuming the loss of the sense of smell (exhibit 27, page 
 
         29), but no tests were performed to objectively prove that 
 
         claimant had actually lost the sense of smell or that it was 
 
         caused by this injury.
 
         
 
              Dr. Pangilinan and Dr. Taylor are both medical doctors and 
 
         practicing psychiatrists.  Dr. Varney is a board-certified 
 
         neuropsychologist.  Dr. Varney has demonstrated a great deal of 
 
         knowledge about head injuries and he demonstrated that he is 
 
         brilliant and articulate.  Nevertheless, the testimony of the two 
 
         psychiatrists is preferred over the testimony of the 
 
         neuropsychologist.  Rockwell Graphic Systems, Inc. v. Prince, 366 
 
         N.W.2d 187, 192 (Iowa 1985).  A doctor's expertise and board 
 
         certification may accord his testimony greater weight.  Dr. 
 
         Taylor is a board-certified psychiatrist.  Reiland v. Palco, 
 
         Inc., 32nd Biennial Report of the Industrial Commissioner, 56 
 
         (1975); Dickey v. ITT Continental Baking Co., 34th Biennial 
 
         Report of the Industrial Commissioner, 89 (1979).
 
         
 
              Claimant has sustained the burden of proof by a 
 
         preponderance of the evidence that he has sustained a major 
 
         depressive disorder as a result of the injury of March 18, 1982.  
 
         Claimant did not sustain the burden of proof by a preponderance 
 
         of the evidence that his symptoms of loss of hearing, loss of 
 
         vision, loss of sense of smell, loss of sense of taste, loss of 
 
         memory, loss of concentration and loss of sexual drive were 
 
         caused by this injury.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 18, 1982 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability.is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa  375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
                                                
 
                                                         
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The time of the onset of claimant's alleged head injury 
 
         symptoms was not definitively established.  Statements of 
 
         claimant and claimant's wife indicate that the various head 
 
         injury symptoms started variously in 1982, 1983, 1984 and 1985.  
 
         Therefore, it is not certain when the alleged head injury 
 
         symptoms actually began based on their testimony.  A head injury 
 
         was mentioned at the time of the settlement on April 18, 1984, 
 
         but none of these current head injury symptoms were mentioned at 
 
         that time.  Actually the head injury was noted, but it was never 
 
         really treated other than to rule out neurologic deficits which 
 
         was done by Dr. Nakhasi and the University of Iowa.  The first 
 
         definitive written evidence of these so-called head injury 
 
         symptoms is when claimant saw Dr. Varney on August 3, 1985.  This 
 
         was one year after the settlement on April 18, 1984 and over 
 
         three years after the original injury on March 18, 1982.  
 
         Claimant was not seen again by a doctor for these complaints for 
 
         another year after that when he saw Dr. Pangilinan on April 7, 
 
         1986.  This was two years after the settlement and four years 
 
         after the injury.
 
         
 
              There was no explanation why claimant first consulted a 
 
         forensic psychologist for evaluation of total disability rather 
 
         than a practicing medical doctor for actual treatment of such 
 
         dire threatening symptoms.  There is no explanation why Dr. 
 
         Varney said that medication could result in some improvement of 
 
         claimant's depression, but did not refer him to a medical doctor 
 
         for treatment of the depression and these terrible symptoms 
 
         claimant was experiencing, including suicide ideation.
 
         
 
              It is unusual that a whole year passed before claimant saw 
 
         the next medical practitioner which was Dr. Pangilinan on April 
 
         7, 1986 for these very serious symptoms and complaints.  It is 
 
         unusual that this evaluation was requested by the Social Security 
 
         Disability Determination Services rather than by claimant or by 
 
         his family and that claimant was still not seeking professional 
 
         treatment and care,for these.alarming symptoms and complaints.
 
         
 
              It is unusual that Dr. Pangilinan could describe such 
 
         awesome complaints and diagnoses and still find that claimant is 
 
         capable enough to manage the benefit payment on his own behalf on 
 
         two different occasions (exhibits 19 and 20).
 
         
 
              Dr. Taylor quite perceptively and accurately detected that 
 
         claimant had received absolutely no treatment for his very grave 
 
         condition that was making his life almost unbearable.  He stated 
 
         that claimant would significantly benefit from treatment (exhibit 
 
         50).  He stated that there were indications of organic brain 
 
         syndrome, as did Dr. Pangilinan, but that the previous testing 
 
         was not thorough enough and that claimant's condition was so 
 
         clouded by depression that it was not possible to rule in or rule 
 
         out the existence of brain damage (exhibit 27, page 10).
 
         
 
              Claimant refused treatment from Dr. Taylor.  Claimant and 
 
                                                
 
                                                         
 
         his attorney proposed treatment by Dr. Verduyn in Waterloo or Dr. 
 
         Hines in Ottumwa, but these doctors apparently were not 
 
         acceptable to defendants.  The parties had agreed on the 
 
         University of Iowa prior to the hearing, but this examination or 
 
         treatment or whatever it was intended to be did not take place 
 
         prior to the hearing.  The point is, however, that claimant never 
 
         at any time sought any medical treatment for these terribly 
 
         debilitating and oppressive symptoms.
 
         
 
              There is no evidence that claimant sought any medical 
 
         treatment of any kind for either his leg or his head after the 
 
         settlement on April 18, 1984.  At the same time, there is 
 
         evidence that, prior to this injury, claimant was treated for a 
 
         number of medical conditions which included headache, backache, 
 
         heart condition, stress, anxiety and other problems and injuries.  
 
         He experienced a mysterious severe pain in the back of his neck 
 
         in 1968 which caused him to be hospitalized and was diagnosed as 
 
         a possible aneurysm.  It was recommended that further studies be 
 
         done, but there is no evidence that any studies were done. 
 
         Claimant also sustained a concussion in 1981.  There is no 
 
         indication that these prior injuries and health problems are 
 
         connected to the current injury, but they do tend to controvert 
 
         the testimony of claimant's wife that he was in good health and 
 
         had no problems prior to this injury.
 
         
 
              Claimant did not seek any work of any kind after the injury 
 
         on March 18, 1982.  Nor did he seek any work after the settlement 
 
         on April 18, 1984.  The only diagnosis for claimant's leg 
 
         complaints, which seemed to allude a diagnosis by means of 
 
         objective and clinical testing was causalgia.  Causalgia is a 
 
         burning sensation on the palms of the hands or the soles of the 
 
         feet.  Normally, causalgia would not cause a person to be totally 
 
         unemployable.  Yet claimant testified that he never attempted to 
 
                        
 
                                                
 
                                                         
 
         work or to find work after this injury.  He did not apply for 
 
         work with employer; nor did employer offer him a job.  Claimant 
 
         said that he did not check the want ads for employment; he did 
 
         not make an application for a job at the Job Service office.  He 
 
         did not look for employment.  He made no job applications.  
 
         Claimant declined both to receive sympathetic nerve blocks or to 
 
         go to the pain center in Iowa City as suggested by Dr. Piburn.  
 
         Claimant has never sought treatment for depression or head 
 
         injury.  Therefore, since claimant has never attempted to work 
 
         again, although it would appear that it was possible for him to 
 
         do so in 1984 and 1985 and possibly at other times, it is not 
 
         possible to determine what claimant can or cannot do within the 
 
         boundaries of his disability, or how much of his disability is 
 
         self-imposed. Schofield v. Iowa Beef Processors, Inc., II Iowa 
 
         Industrial Commissioner Report, 334, 336 (1981).
 
         
 
              For the same reason, it cannot be said that claimant is an 
 
         odd-lot employee.  Since claimant has not demonstrated a bona 
 
         fide effort to attempt to return to gainful employment in the 
 
         area of his residence, he has failed to make a prima facie case 
 
         of permanent total disability under the odd-lot doctrine.  Guyton 
 
         v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985); Emshoff v. 
 
         Petroleum Transportation Services, Inc., file number 753723, 
 
         (App. Decn. March 31, 1987).  Claimant indicated in his testimony 
 
         which was corroborated by his wife and his son that all he was 
 
         able to do was to feed the chickens, water the horse and pull 
 
         grass in the garden.  At the same time, Nancy Meany, 
 
         Delagardelle's daughter, testified that she saw claimant doing 
 
         field work on a tractor, driving his pickup truck and performing 
 
         other kinds of work. Likewise, Delagardelle testified that he 
 
         observed claimant on his roof replacing the shingles and 
 
         photographed him up there.  He also photographed claimant driving 
 
         the red International tractor which required him to operate the 
 
         clutch with his left foot which claimant said he was unable to do 
 
         (exhibit 39).  Delagardelle testified that he saw claimant four 
 
         or five times in 1985 and 1986 hauling grain driving the red 
 
         International tractor.  He said he saw claimant a number of other 
 
         times driving his pickup truck and his tractor.  Delagardelle 
 
         said he saw claimant plowing a field in 1983.  Delagardelle said 
 
         that his son-in-law reported to him that he saw claimant 
 
         roto-tilling his garden.  Delagardelle's wife reported to him 
 
         that she saw claimant replace a door on claimant's rental house.  
 
         She also reported to Delagardelle that claimant ran across the 
 
         yard and back again.  Delagardelle testified that he had seen 
 
         claimant work and carry his grandchild without his cane and 
 
         without a limp.  Delagardelle explained that he never asked 
 
         claimant to return to work because he was told that claimant was 
 
         unable to work.
 
         
 
              Chris Ann Marie Boleyn, Delagardelle's daughter, testified 
 
         that she saw claimant at places where she was employed and that 
 
         he walked without a cane and without a limp.  Yagla observed 
 
         claimant walk without a cane and without a limp.  They both 
 
         testified that, when claimant identified them, he began to limp 
 
         and sought his cane.
 
                                                
 
                                                         
 
         
 
              Laughlin, the private detective, photographed claimant 
 
         mowing a sizable field, working in his garden, picking up 
 
         fencing, a tire and sheet metal and other materials and placing 
 
         them on the other side of a fence without apparent difficulty.  
 
         Therefore, there is an abundance of evidence that claimant can 
 
         perform a number of functions considerably more than he described 
 
         in his testimony. Also, claimant's status of employability would 
 
         possibly be more determinable if defendants had offered claimant 
 
         the assistance of a vocational rehabilitation specialist.
 
         
 
              Since claimant has not sought any treatment for his 
 
         depression, it is not possible to determine that claimant is 
 
         permanently and totally disabled.  Claimant saw two doctors and 
 
         one psychologist since the settlement on April 18, 1984 and each 
 
         of these times it was for the purpose of evaluation to obtain 
 
         either Social Security disability benefits or workers' 
 
         compensation benefits.  Dr. Taylor said claimant would benefit 
 
         significantly from treatment and medication (exhibit 50).  Dr. 
 
         Varney also said that medication would help claimant's depression 
 
         (exhibit 17).  Nevertheless, claimant never did seek any 
 
         treatment for his significant depression, either before or after 
 
         he talked to these evaluators.  Moreover, claimant refused the 
 
         treatment that was offered to him by Dr. Taylor and never sought 
 
         out any medication or treatment from a doctor of his own choice.  
 
         Claimant did not request an order for alternate care under Iowa 
 
         Code section 85.27.  Consequently, it was not possible for Dr. 
 
         Taylor or any other physician to fully diagnose his condition or 
 
         to determine the boundaries of his disability as a result of this 
 
         injury.
 
         
 
              Claimant was 45 years old at the time of the injury and 51 
 
         years old at the time of the hearing.  He has a high school 
 
         education.  His grades were not high, but they were passing.  He 
 
         performed well on two jobs when he was motivated to work in the 
 
         past.  In fact, claimant did extraordinarily well on his past 
 
         employments despite his I.Q. and his grades in high school. 
 
         Claimant has demonstrated a number of talents and abilities, both 
 
         as a worker and as a manager.  His past employments and his 
 
         career as a farmer both required a variety of skills.
 
         
 
              At the same time, claimant is seriously depressed at this 
 
         time and needs treatment.  A portion of his disability, according 
 
         to Dr. Taylor's testimony, appears to be self-imposed.  
 
         Defendants should not be held liable for disability which is 
 
         self-imposed through failure to seek reasonable medical treatment 
 
         or because of refusal to accept reasonable medical treatment.  
 
         Therefore, based upon all of the foregoing considerations and all 
 
         of the factors employed to determine industrial disability, it is 
 
         determined that claimant has sustained an overall industrial 
 
         disability of 50% of the body as a whole for both the leg injury 
 
         and the depression.
 
         
 
              Claimant's additional permanent partial disability and 
 
         interest on this award should commence as of the date of this 
 
                                                
 
                                                         
 
         decision.  Bousfield  v. Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 
 
         109 (1957).
 
         
 
              Claimant did not prove entitlement to temporary disability 
 
         benefits for either temporary total disability or healing period 
 
         benefits during a period of recovery for the reason that claimant 
 
         never sought any treatment or care to begin a recovery from his 
 
         severe depression.  Nor did he accept the treatment and care that 
 
         was offered by defendants [Iowa Code sections 85.33(l) and 
 
         85.34(l)].
 
         
 
              The medical bills for claimant's leg injury were all paid at 
 
         the time of the settlement on April 18, 1984.  There was no 
 
         evidence that claimant sought treatment for any additional 
 
         medical treatment on the leg and he did not seek any treatment 
 
         for his depression.  Claimant's medical expense with Dr. Varney 
 
         and Dr. Pangilinan were for evaluation, rather than treatment and 
 
         are not allowable pursuant to Iowa Code section 85.27.  In any 
 
         event, it would appear that the Social Security Administration 
 
         paid for the examination with Dr. Pangilinan and Mr. Rinder.  The 
 
         bill of Dr. Hines for the 24-hour ambulatory EEG was made at the 
 
         request at Dr. Varney and therefore it is considered to be for 
 
         evaluation rather than treatment.  Evaluation is a trial 
 
         preparation expense. Therefore, at this point, claimant has not 
 
         established any entitlement to the payment of medical expenses 
 
         based upon the evidence in the record.
 
         
 
                            FINDINGS OF FACT
 
         
 
              THEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant did not seek any additional treatment for his 
 
         left leg injury after the settlement on April 18, 1984.
 
         
 
              There is no medical evidence of a change of condition of the 
 
         left leg after the settlement of April 18, 1984.
 
         
 
              That since the settlement on April 18, 1984, claimant has 
 
         developed a major depressive disorder according to Dr. Varney, 
 
         Dr. Pangilinan and Dr. Taylor.
 
         
 
              That Dr. Taylor said the depression was caused by the injury 
 
         of March 18, 1982.
 
         
 
              That Dr. Varney testified that the injury of March 18, 1982 
 
         was the cause of claimant's depression.
 
         
 
              That Dr. Pangilinan did not specifically state that the 
 
         injury of March 18, 1982 caused the depression, but he recorded 
 
         that history and proceeded on that basis in his evaluation and he 
 
         did not suggest any other cause for the depression.
 
         
 
              That the depression was not the cause of any additional 
 
         temporary disability during a period of recovery because claimant 
 
                                                
 
                                                         
 
         never started any treatment for this condition and refused 
 
         treatment that was offered to him.
 
         
 
              That the overall industrial disability as a result of the 
 
         left leg injury and the depression is 50% of the body as a 
 
         whole.
 
         
 
              That defendants have previously paid claimant 97 weeks of 
 
         permanent partial disability benefits based upon a 19.4% 
 
         industrial disability of the body as a whole pursuant to the 
 
         settlement agreement of April 18, 1984.
 
         
 
              That claimant has not sought or received any medical 
 
         treatment for the depression or the left leg since the settlement 
 
         agreement on April 18, 1984.
 
         
 
              That claimant has not sought any reasonable medical 
 
         treatment for his depression and he refused the treatment that 
 
         was offered to him by defendants.
 
         
 
              That claimant has not sought any employment of any kind 
 
         since the date of the injury.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made:
 
         
 
              That claimant did not sustain the burden of proof, by a 
 
         preponderance of the evidence, that he sustained a change of 
 
         condition to his left leg after the settlement agreement on April 
 
         18, 1984.
 
                            
 
                                                         
 
         
 
              That claimant did sustain the burden of proof, by a 
 
         preponderance of the evidence, that he did sustain a major 
 
         depressive disorder after the settlement agreement on April 18, 
 
         1984.
 
         
 
              That claimant did not sustain the burden of proof, by a 
 
         preponderance of the evidence, that either his left leg injury or 
 
         his depression was the cause of any temporary disability during a 
 
         period of recovery and medical treatment.
 
         
 
              That claimant is not entitled to temporary disability 
 
         benefits of either temporary total disability or healing period 
 
         benefits.
 
         
 
              That claimant did sustain the burden of proof, by a 
 
         preponderance of the evidence, that the left leg injury and the 
 
         depression were the cause of an industrial disability of 50% of 
 
         the body as a whole.
 
         
 
              That claimant is entitled to 250 weeks of permanent partial 
 
         disability benefits less the 97 weeks of permanent partial 
 
         disability benefits which were previously paid pursuant to the 
 
         settlement agreement which results in 153 weeks of permanent 
 
         partial disability benefits due to claimant as a result of this 
 
         hearing and award.
 
         
 
              That claimant is not determined to be an odd-lot employee.
 
         
 
              That claimant is not entitled to any additional medical 
 
         benefits for any treatment after the settlement agreement up 
 
         until the date of this hearing.
 
         
 
              That claimant cannot be determined to be permanently and 
 
         totally disabled because he has not sought reasonable medical 
 
         treatment on his own initiative and he refused the medical 
 
         treatment which was offered by defendants and did not request an 
 
         order for alternate care under Iowa Code section 85.27.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant one hundred fifty-three 
 
         (153) weeks of permanent partial disability benefits at the rate 
 
         of one hundred forty-six and 39/100 dollars ($146.39) per week in 
 
         the total amount of twenty-two thousand three hundred 
 
         ninety-seven and 67/100 dollars ($22,397.67) which benefits are 
 
         to commence on the date of this award.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30 as of that date of this award.
 
         
 
              That no additional medical expenses are due from defendants 
 
         to claimant at this time.
 
                                                
 
                                                         
 
         
 
              That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file Claim Activity Reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 6th day of February, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To
 
         
 
         Mr. Jay Roberts
 
         Attorney at Law
 
         300 WSB Building
 
         P.O. Box 1200
 
         Waterloo, Iowa  50704
 
         
 
         Mr. Thomas L. Staack
 
         Attorney at Law
 
         3151 Brockway Road
 
         P.O. Box 810
 
         Waterloo, Iowa  50704
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1106, 1108.20, 1108.50,
 
                                            1401, 1402.20, 1402.30, 
 
                                            1402.40, 1402.60, 1801,
 
                                            1802, 1803, 1803.1, 1804, 
 
                                            2204, 2208, 2501, 2505,
 
                                            2602, 2700, 2905, 3100,
 
                                            3701, 4100
 
                                            Filed February 6, 1989
 
                                            WALTER R. McMANUS, JR.
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         OSCAR L. MULDER,
 
         
 
              Claimant,
 
                                                    File No. 698080
 
         vs.
 
                                                     R E V I E W -
 
         GILBERTVILLE MILLING COMPANY,
 
                                                   R E O P E N I N G
 
              Employer,
 
                                                    D E C I S I O N
 
         and
 
         
 
         HAWKEYE-SECURITY INSURANCE CO.,
 
         
 
              Insurance Company,
 
              Defendants.
 
         
 
         
 
         1106, 1108.20, 1108.50,  1401, 1-402.20, 1402.30, 1402.40 
 
         1402.60,2204, 2208, 2905
 
         
 
              Claimant did prove a change of condition after settlement of 
 
         his case which was verified by two psychiatrists and a 
 
         psychoneurologist.  Causal connection was established.  It was 
 
         proven that claimant was not able to work due to the depression.
 
         
 
              Claimant did not prove organic brain damage, or loss of 
 
         hearing, vision, taste, smell, memory, concentration or sex drive 
 
         or that any of these conditions were caused by this injury.
 
         
 
         1801, 1802
 
         
 
              Claimant was not awarded any temporary disability benefits 
 
         from his depression because he never began or started a course of 
 
         treatment for recovery from this condition.
 
         
 
         1803, 1803.1, 1804
 
         
 
              Claimant was awarded 50% industrial disability of the body 
 
         as a whole even though he was completely unable to work because 
 
         the extent of impairment and disability could not be determined 
 
         because he had never sought treatment for his depression or head 
 
                                                
 
                                                         
 
         injury, refused the treatment offered by defendants and never 
 
         requested an order for alternate care under Iowa Code section 
 
         85.27.  For the same reasons, it could not be determined that 
 
         claimant was entitled to permanent total disability benefits.
 
         
 
         2501, 2505, 2602, 2700
 
         
 
              No medical benefits awarded because claimant had never 
 
         sought any medical treatment.  He was evaluated three times.  
 
         Evaluations are trial preparation expenses and are not allowable 
 
         medical expenses under Iowa Code section 85.27.
 
         
 
         3100
 
         
 
              Claimant used a vocational rehabilitation consultant to 
 
         obtain Social Security disability benefits and for this action. 
 
         Defendants' failure to employ a vocational rehabilitation 
 
         consultant weakened their position.
 
         
 
         3701
 
         
 
              Surveillance was effective in proving that claimant was not 
 
         as disabled as he asserted.
 
         
 
         4100
 
         
 
              Claimant had not looked for employment in any manner and 
 
         therefore had not made out a prima facie case as an odd-lot 
 
         employee.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            __
 
                                          :
 
            MARK F. McMULLIN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 698688
 
            DEPARTMENT OF REVENUE,        :
 
                                          :         R E M A N D
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            __
 
            
 
            
 
                 This case has been remanded to this agency by the Iowa 
 
            Court of Appeals for further proceedings.  The decision of 
 
            the Iowa Court of Appeals, McMullin v. Department of 
 
            Revenue, 437 N.W.2d 596 (Iowa App. 1989), held that 
 
            claimant's injury did arise out of and was in the course of 
 
            his employment.  
 
            
 
                 Previously, a deputy industrial commissioner had issued 
 
            a decision on claimant's case on September 28, 1984, 
 
            concluding, among other things, that claimant's injury arose 
 
            out of and in the course of his employment, and finding that 
 
            claimant was permanently and totally disabled.
 
            
 
                 An appeal decision issued on October 7, 1985, concluded 
 
            that claimant's injury did not arise out of and in the 
 
            course of his employment with defendant employer.  Thus, the 
 
            extent of claimant's disability and other issues raised by 
 
            the parties were not addressed in that decision.
 
            
 
                  The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been re-reviewed as part of this remand decision.  The 
 
            decision of the deputy filed September 28, 1984, is affirmed 
 
            and is adopted as the final agency action in this case, with 
 
            the following additional analysis:
 
            
 
                 The extent of claimant's disability can scarcely be 
 
            exaggerated.  He is confined to a wheelchair.  He has lost 
 
            all of the use of the lower portion of his body, and most of 
 
            the use of the upper portion.  Claimant cannot feed, clothe 
 
            or bathe himself without assistance.  Claimant needs 
 
            constant care.  The prospect of an employer hiring claimant 
 
            is remote in the extreme.  The fact that claimant is able to 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            generate some income by managing a motel he owns does not 
 
            preclude a finding that he is permanently and totally 
 
            disabled.  Claimant is permanently and totally disabled.
 
            
 
                 Defendants seek a credit pursuant to Iowa Code section 
 
            85.38(2).  That section provides a credit against an award 
 
            for amounts paid under a nonoccupational group plan.  The 
 
            record does not clearly establish which long-term disability 
 
            plan defendants seek a credit for.  Claimant was an employee 
 
            of the state of Iowa.  The State of Iowa's Employees' 
 
            Long-term Disability Plan has been held to constitute a 
 
            nonoccupational group plan entitling defendants to credit 
 
            under Iowa Code section 85.38(2).  Lowe v. Iowa State 
 
            Penitentiary, Appeal Decision, December 16, 1988 (#673326, 
 
            776977, 805718). 
 
            
 
                 Iowa Code section 85.38(2) does not contemplate a 
 
            credit for defendants for social security benefits received 
 
            by claimant.  Social security disability is not a 
 
            nonoccupational group disability plan under section 
 
            85.38(2).  
 
            
 
                 Defendants have also objected to the award of medical 
 
            benefits, specifically the purchase price of a van from 
 
            Charles Gabus Ford, and the conversion costs of the van.  A 
 
            van for a paraplegic or quadriplegic is not a proper medical 
 
            expense under Iowa Code section 85.27.  Zanders v. City of 
 
            Malvern, Appeal Decision, November 22, 1989.  However, the 
 
            costs to convert the van to the special needs of claimant 
 
            resulting from his work injury are legitimate 85.27 
 
            expenses.  Defendants will be ordered to pay the costs of 
 
            converting the van, but not for the purchase of the van.
 
            
 
                 Claimant alleges that the deputy's arbitration decision 
 
            erroneously omitted items of medical expense contained in 
 
            exhibit N.  Claimant is entitled to payment of all listed 
 
            medical expenses, including those contained in exhibit N, 
 
            with the exception of the purchase price of the van, as 
 
            noted above.  
 
            
 
                 Claimant also urges that he is entitled to future 
 
            medical expenses resulting from his work injury, including 
 
            personal care.  Claimant is entitled under Iowa Code section 
 
            85.27 to all reasonable medical expenses necessitated by his 
 
            work injury, including the costs of personal nursing care.  
 
            
 
                 Finally, defendants urge they are entitled to an offset 
 
            of the award under Iowa Code section 85.22 for amounts 
 
            received by claimant as part of a third party settlement 
 
            stemming from the work injury.  Claimant urges that any 
 
            indemnification must be reduced by the amount of his 
 
            attorney's fees.  Iowa Code section 85.22(1) states:
 
               If compensation is paid the employee or dependent or the 
 
            trustee of such dependent under this chapter, the employer 
 
            by whom the same was paid, or the employer's insurer which 
 
            paid it, shall be indemnified out of the recovery of damages 
 
            to the extent of the payment so made, with legal interest, 
 
            except for such attorney fees as may be allowed, by the 
 
            district court, to the injured employee's attorney or the 
 
            attorney of the employee's personal representative, and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            shall have a lien on the claim for such recovery and the 
 
            judgment thereon for the compensation for which the employer 
 
            or insurer is liable.  In order to continue and preserve the 
 
            lien, the employer or insurer shall, within thirty days 
 
            after receiving notice of such suit from the employee, file, 
 
            in the office of the clerk of the court where the action is 
 
            brought, notice of the lien.
 
            
 
                 Defendants shall be entitled to indemnification as set 
 
            forth in Iowa Code section 85.22.
 
            
 
                                      ORDER
 
            THEREFORE, it is ordered:
 
            That defendants are to pay unto claimant permanent total 
 
            disability benefits at the rate of two hundred twenty-eight 
 
            and 40/100 dollars ($228.40) from November 23, 1981 and 
 
            continuing during the period of his disability.
 
            That defendants shall receive a credit pursuant to Iowa Code 
 
            section 85.22.  Defendants shall also receive a credit for 
 
            any non-occupational group plan benefits contemplated by 
 
            Iowa Code section 85.38(2).  Defendants shall not receive a 
 
            credit for social security benefits received by claimant.
 
            That defendants shall pay claimant's listed medical 
 
            expenses, except for the purchase price of the van.  
 
            Defendants shall pay the future medical expenses of claimant 
 
            necessitated by his work injury.
 
            That defendants shall pay the accrued weekly benefits in a 
 
            lump sum.
 
            That defendants shall pay interest on unpaid weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            That defendants are to be given credit for benefits 
 
            previously paid. 
 
            That defendants are to pay the costs of this action.
 
            That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2). 
 
            
 
                 Signed and filed this ____ day of August, 1991.
 
            
 
            
 
            
 
                                         
 
            ____________________________________
 
                                                   JON E. HEITLAND
 
                                         CHIEF DEPUTY INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Ms. Lorraine J. May
 
            Mr. Hugh J. Cain
 
            Attorneys at Law
 
            4th Floor, Equitable Bldg.
 
            Des Moines, Iowa 50309
 
            
 
            Mr. Greg Knoploh
 
            Assistant Attorney General
 
            Tort Claims Division
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1804, 5-3400, 1704, 2504
 
            Filed August 23, 1991
 
            Jon E. Heitland
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            __
 
                                          :
 
            MARK F. McMULLIN,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 698688
 
            DEPARTMENT OF REVENUE,        :
 
                                          :         R E M A N D
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            __
 
            
 
            1804
 
            On remand from Iowa Court of Appeals, which determined that 
 
            claimant was in the course of his employment when he was hit 
 
            head on in Cleveland, Ohio, and became a quadriplegic, 
 
            permanent total industrial disability was found.  
 
            
 
            5-3400
 
            Defendants granted credit for third party judgment, minus 
 
            attorney fees, under 85.22.
 
            
 
            1704
 
            Defendants granted credit for nonoccupational group plan 
 
            benefits under Iowa Code section 85.38(2), but denied credit 
 
            for social security benefits claimant received.
 
            
 
            2504
 
            Defendants were ordered to pay for costs of converting a van 
 
            to accommodate claimant, but not the purchase price of the 
 
            van.
 
            
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        RONALD PETERS,
 
        
 
            Claimant,
 
        
 
        vs.                               File No. 699108
 
        
 
        SWIFT INDEPENDENT PACKING,          A P P E A L
 
        
 
            Employer,                   D E C I S I O N
 
        
 
        and
 
        
 
        NATIONAL UNION FIRE INSURANCE,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from review-reopening and rehearing decisions 
 
        awarding payment of $100 of the $200 charge for a medical 
 
        examination pursuant to Iowa Code section 85.39 and denying a 
 
        payment of a $40 claim for medical treatment pursuant to Iowa 
 
        Code section 85.27. Defendants cross-appeals from the 
 
        review-reopening decision and a rehearing.
 
        
 
        The record on appeal consists of the transcript of the 
 
        review-reopening hearing; claimant's exhibits 1 through 4 and 
 
        defendants' exhibits A through K together with the filings of the 
 
        parties on rehearing. Both parties filed briefs on appeal.
 
        
 
                                      ISSUE
 
        
 
        The issue on appeal is whether claimant has established that the 
 
        medical treatment he received from Mark Wheeler, M.D., on 
 
        September 4, 1985 is causally connected to his work injury of 
 
        March 3, 1982.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The review-reopening and rehearing decisions adequately and 
 
        accurately reflect the pertinent evidence and it will not be set 
 
        forth herein.
 
        
 
        SWIFT V. INDEPENDENT PACKING
 
        Page 2
 
        
 
        
 
                                 APPLICABLE LAW
 
        
 
        Division of Industrial Services Rule 343-4.22 governs actions 
 
        taken at the prehearing conference and provides:
 
        
 
        The deputy commissioner or industrial commissioner may enter an 
 
        order reciting any action taken at the conference or pursuant to 
 
        any other procedures prescribed which will control the subsequent 
 
        course of action relative to matters which it includes, unless 
 
        modified to prevent manifest injustice.
 
        
 

 
        
 
 
 
 
 
        This agency has consistently held that an issue not raised by the 
 
        parties at the time of prehearing and listed on the hearing 
 
        assignment order is waived. Presswood v. Iowa Beef Processors 
 
        Appeal Decision, November 14, 1986; Chamberlain v. Ralston 
 
        Purina, Appeal Decision, October 29, 1987, Marcks v. Richman 
 
        Gordman, Appeal Decision, June 29 1988.
 
        
 
                                      ANALYSIS
 
        
 
        The hearing assignment order filed in this case on April 8, 1987 
 
        states one issue which was to be heard: causal connection of 
 
        medical expenses claimed under Iowa Code section 85.27. No 
 
        mention is made in the hearing assignment order of any issue 
 
        involving Iowa Code section 85.39 or any issue involving 
 
        authorization of treatment. This agency has consistently held 
 
        that the hearing assignment order controls what issues may be 
 
        heard at hearing. Therefore, the only issue which will be 
 
        considered on appeal is whether claimant's medical treatment with 
 
        Mark Wheeler, M.D., on September 4, 1985 is causally connected to 
 
        the work injury of March 3, 1982. The deputy analyzes this issue 
 
        in the ruling on motion for rehearing filed on August 4, 1987:
 
        
 
        The only medical evidence regarding the causal relationship issue 
 
        was the office notes of Dr. Wheeler and a report of Dr. Wheeler 
 
        of September 9, 1986. The office notes are ambiguous as they 
 
        could be describing an ongoing condition of some duration as 
 
        evidenced by reports of more frequent giving out of the knee with 
 
        effusions, and that the knee will buckle and cause claimant to so 
 
        down approximately once a month, or the note could be interpreted 
 
        as reporting a new injury as evidenced by the statement, "he 
 
        recently hurt it two or three days ago." In his report of 
 
        September 9, 1986, Dr. Wheeler stated he could not comment on the 
 
        original injury and recommended consultation with the original 
 
        treating physician as regards
 
        
 
        SWIFT V. INDEPENDENT PACKING
 
        Page 3
 
        
 
        
 
        such questions. Likewise, lay testimony regarding claimant's knee 
 
        condition was ambiguous as to whether the complaints related to 
 
        an ongoing long-term condition or a new, independent injury. We 
 
        find, that at best, the evidence on the causal relationship issue 
 
        creates an equipoise. Such cannot carry claimant's burden. See 
 
        Volk v. International Harvester Company 252 Iowa 298, 106 N.W.2d 
 
        640 (1960).
 
        
 
        For the above stated reasons, claimant has failed to establish by 
 
        the greater weight of evidence that the medical treatment with 
 
        Dr. Wheeler was causally connected to his work injury.
 
        
 
        The decision of the deputy industrial commissioner assessed costs 
 
        against both parties equally "but for the cost of transcribing 
 
        these proceedings, which shall be borne wholly by claimant's 
 
        counsel." Division of Industrial Services Rule 343-4.33, which 
 
        authorizes the assessment of costs, refers only to parties, and 
 
        does not authorize assessment of costs against a party's counsel. 
 
        The costs of this proceeding will be assessed against the parties 
 
        and not against counsel.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant saw Dr. Wheeler on September 4, 1985.
 
        
 
        2. Claimant gave a history of having had surgery following a slip 
 
        and fall down some stairs that was consistent with claimant's 
 

 
        
 
 
 
 
 
        work injury.
 
        
 
        3. On September 4, 1985, claimant had continued and more frequent 
 
        giving out of the knee with effusions, but no true locking.
 
        
 
        4. Claimant's knee would then buckle and cause him to go down 
 
        approximately once a month. Examination showed moderate effusion.
 
        
 
        5. Claimant had "hurt" the knee two or three days prior to the 
 
        examination.
 
        
 
        6. Dr. Wheeler did not comment on the original injury.
 
        
 
        7. Dr. Wheeler recommended that the original treating physician 
 
        be consulted as regards the original injury.
 
        
 
        8. Claimant's complaints could be consistent with a long-term 
 
        injury or could be consistent with a recent injury.
 
        
 
        PETERS V. SWIFT INDEPENDENT PACKING
 
        Page 4
 
        
 
        
 
        9. Claimant had had left knee injuries prior to his work injury.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
        Claimant has not established that the medical treatment he 
 
        received from Dr. Wheeler on September 4, 1985 was causally 
 
        related to his work injury of March 3, 1982.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That claimant take nothing further from these proceedings.
 
        
 
        That each party pay their own costs of this proceeding and each 
 
        party shall share equally the costs of the transcription of the 
 
        review-reopening proceedings and appeal.
 
        
 
        Signed and filed this 26th day of October, 1988.
 
        
 
        
 
        
 
                                            DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         RONALD PETERS,
 
         
 
             Claimant,
 
          
 
         VS.
 
                                                 File No. 699108
 
         SWIFT INDEPENDENT PACKING
 
                                                   R E V I E W-
 
         COMPANY,
 
                                                 R E 0 P E N I N G
 
             Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening and for medical 
 
         benefits brought by the claimant, Ronald Peters, against his 
 
         employer, Swift Independent Packing Company, and its insurance 
 
         carrier, National Union Fire Insurance Company, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained March 3, 1982.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner in 
 
         Sioux City, Iowa, on April 27, 1987.  A first report of injury 
 
         was filed April 5, 1982.  An agreement for settlement was 
 
         approved by this agency on December 12, 1984.  The record in this 
 
         proceeding consists of the testimony of claimant, of Rich Molden, 
 
         and of Richard Sturgeon, as well as of claimant's exhibits I 
 
         through 4, and defendants' exhibits A through K.
 
         
 
                                    ISSUE
 
         
 
              The issues to be decided are whether claimant is entitled to 
 
         payment of a $40 medical bill with Mark Wheeler, M.D., under 
 
         section 85.27, and whether claimant is entitled to payment of a 
 
         $200 charge with Horst Blume, M.D., under section 85.39.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 
              Claimant's work injury occurred on March 3, 1982 when he 
 
         slipped on fat and twisted his knee on stairs while leaving his 
 
         work station for break.  Claimant had had prior knee problems.  
 
         Claimant denied having had knee injuries since the March 1982 
 
         incident, however.  He reported that, subsequent to the incident, 
 
         his knee goes out when he turns the wrong way and swells at least 
 
         once monthly.  Claimant reported that he called his counsel and 
 
         asked if he could see Dr. Wheeler.  He reported that counsel 
 
         advised that the insurer approved a visitation with Dr. Wheeler 
 

 
         and that he subsequently saw Dr. Wheeler.  Claimant agreed that 
 
         he received no written approval for his visit with Dr. Wheeler.  
 
         Claimant reported that he is self employed as a janitorial 
 
         service operator at the present time and that while doing so, he 
 
         mops and scrubs floors.  Claimant cannot recall whether he had 
 
         seen the physician concerning his knee from August 10, 1984 until 
 
         he visited Dr. Wheeler in September 1985.  Claimant could not 
 
         remember whether he had seen Wheeler in the morning of September 
 
         4, 1985 and then had seen Rick Molden, insurance adjuster of 
 
         Crawford and Company, that afternoon.  Mr. Molden testified that 
 
         he obtained a statement from claimant on September 4, 1985 in 
 
         which claimant stated he had seen Dr. Wheeler that morning.  
 
         Molden reported that neither claimant nor his counsel had 
 
         contacted the insurance adjuster regarding the visitation with 
 
         Dr. Wheeler.  Molden testified that claimant had reported he saw 
 
         Dr. Wheeler as he preferred Wheeler to the prior authorized 
 
         physician.  Molden stated that claimant had then described an 
 
         incident with his son where his knee had gone out.  Molden 
 
         reported that he has no notes in his file nor any independent 
 
         recollection of a call from Mr. Sturgeon regarding a proposed 
 
         Wheeler exam.
 
         
 
              Mr. Richard Sturgeon testified he is a paralegal in 
 
         claimant's counsel's office and that he, by phone, contacted the 
 
         insurance adjuster and requested permission for claimant to see 
 
         Dr. Wheeler.  He testified that this permission was given.  
 
         Sturgeon agreed that he has no notes documenting such phone 
 
         conversation.
 
         
 
              Claimant testified that he saw Dr. Blume prior to the 
 
         agreement for settlement for reexamination, and that as a result 
 
         of the examination, Dr. Blume assessed a permanent partial 
 
         impairment rating of ten percent.  An agreement for settlement 
 
         indicated permanent partial impairment of 8.5 percent.  Claimant 
 
         reported he subsequently obtained the Blume bill for $200 and 
 
         advised his counsel of that cost.  Mr. Molden testified that he 
 
         was unaware of the Blume bill prior to December 12, 1984, and 
 
         that the insurance adjuster had not received a request that Dr. 
 
         Blume examine claimant.  He reported that he had not been asked 
 
         to pay the Blume bill prior to the agreement for settlement.  He 
 
         stated that other agreed to bills had been paid either prior to 
 
         or with the agreement for settlement.  Mr. Molden reported that 
 
         Dr. Blume had not been paid as he was not an authorized 
 
         physician; he was a neurologist, not an orthopedist; that 
 
         claimant's problem was an orthopedic injury; and as it was felt 
 
         that a thermogram which Dr. Blume performed was not helpful.  He 
 
         reported that the insurance company adjuster would not have 
 
         agreed to pay Blume as a precondition to the agreement for 
 
         settlement, and that an additional $800.55 had been paid in the 
 
         agreement for settlement.  The agreement for settlement reflects 
 
         $800.55 was paid reflecting the difference between a 7 percent 
 
         and an 8.5 percent impairment of the leg.  The agreement notes 
 
         that section 85.27 medical benefits shall remain open.  The 
 
         agreement in paragraph 2 states that claimant has had all medical 
 
         benefits and transportation expenses paid by the insurance 
 
         carrier through the present time.  Molden reported that the 
 
         insurance adjuster may have taken the position that claimant 
 
         cannot nominate Dr. Blume for an independent medical 
 
         examination.
 
         
 
              Office notes of Dr. Wheeler, apparently of September 4, 
 
         1985, give a history of claimant having had surgery following a 
 
         slip and fall down some stairs.  He reports that claimant has 
 
         continued with more frequent giving out of the knee with 
 

 
         
 
         
 
         
 
         PETERS V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page   3
 
         
 
         
 
         effusions, but no true locking.  He states the knee will buckle 
 
         and cause him to go down with this happening approximately once a 
 
         month.  Examination showed moderate effusion.  The doctor stated 
 
         "He recently hurt it 2-3 days ago." The doctor's impression is of 
 
         anterior cruciate deficient left knee.  In a report of September 
 
         9, 1986, Dr. Wheeler states he cannot comment on the original 
 
         injury and that he would recommend that the original treating 
 
         physician be consulted as to such questions.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              Section 85.27 requires employers to furnish employees 
 
         reasonable medical care and permits the employer to choose and 
 
         authorize such care.  Only in an emergency situation can a 
 
         claimant obtain nonauthorized medical care.  The employee, 
 
         additionally, has the burden of showing the treatment is related 
 
         to the injury.
 
         
 
              As regards the Wheeler bill, we find that claimant has not 
 
         shown that any such care was authorized.  Claimant's testimony 
 
         that his counsel advised him that such care was authorized is 
 
         only supported by counsel's paralegal's assertion that a phone 
 
         conversation took place with the insurance adjuster in which the 
 
         adjuster authorized said care.  The adjuster has no independent 
 
         recollection of such authorization and has no file notes 
 
         concerning any such phone conversation.  Likewise, the claimant, 
 
         his counsel, and his paralegal, are unable to produce file notes 
 
         or other documentation of any such phone conversation.  We find 
 
         that at best the evidence creates an equipoise and such is not 
 
         sufficient to carry claimant's burden of showing an authorization 
 
         of care.  Hence, we find that payment of the $40 bill with Dr. 
 
         Wheeler is not mandated.
 
         
 
              As regards to the $200 charge with Dr. Blume, we note that 
 
         section 85.39, in part, provides:
 
         
 
              If an evaluation of permanent disability has been made 
 
              by a physician retained by the employer and the 
 
              employee believes this evaluation to be too low, the 
 
              employee shall, upon application to the commissioner 
 
              and upon delivery of a copy of the application to the 
 
              employer and its insurance carrier, be reimbursed by 
 
              the employer the reasonable fee for a subsequent 
 
              examination by a physician of the employee's own 
 
              choice, and reasonably necessary transportation 
 
              expenses incurred for the examination.  The physician 
 
              chosen by the employee has the right to confer with and 
 
              obtain from the employer-retained physician sufficient 
 
              history of the injury to make a proper examination.
 
         
 
              We note that section 85.39 does not require prior approval 
 
         before the examination may take place, only that an application 
 
         be made for reimbursement by the employer for a reasonable fee 
 
         for the subsequent examination.  We note that the physician is a 
 
         physician of the employee's own choice; hence, defendants' 
 
         argument that they would not have authorized Dr. Blume is 
 
         ill-founded.  We note, however, that the section 85.39 
 
         examination is for examination only and not for treatment.  
 
         Hence, we do not believe that a thermogram would be included as 
 

 
         
 
         
 
         
 
         PETERS V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page   4
 
         
 
         
 
         part of the section 85.39 examination.  Nor do we believe that 
 
         the thermogram could possibly be characterized as authorized 
 
         medical treatment under section 85.27. We also do not believe 
 
         that section 85.39 examination would properly be characterized as 
 
         a medical benefit such that claimant's right for reimbursement of 
 
         said examination would be obviated by the agreement for 
 
         settlement.  We find claimant entitled to payment of a $100 
 
         charge for the August 10, 1984 office visit with complete 
 
         history, and complete physical and neurological examination and 
 
         evaluation of Dr. Blume.  We find claimant is not entitled to 
 
         payment of the cost for the thermogram administered on August 10, 
 
         1984.
 
         
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              No file notes of either the insurance adjuster or of 
 
         claimant's counsel's legal office support claimant's contention 
 
         that Dr. Wheeler's examination of claimant was authorized.
 
         
 
              Dr. Wheeler's examination of claimant was not authorized.
 
         
 
              Dr. Horst Blume's August 10, 1984 office visit with complete 
 
         history and complete physical and neurological examination and 
 
         evaluation of claimant was an independent medical examination.
 
         
 
         
 
         
 
              Claimant has the right to choose his examining physician.
 
         
 
              Section 85.39 examination is not a medical benefit.
 
         
 
              Thermogram treatment is not part of a section 85.39 
 
         examination.
 
         
 
              Thermogram treatment by Dr. Blume was not authorized.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is not entitled to payment of a $40 medical charge 
 
         with Mark Wheeler, M.D.
 
         
 
              Claimant is entitled to payment of a $100 charge with Horst 
 
         Blume, M.D., for physical examination and evaluation.
 
         
 
              Claimant is not entitled to payment of a $100 charge with 
 
         Horst Blume, M.D., for administration of a thermogram.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant the one hundred dollars ($100) 
 
         charge with Horst Blume, M.D.
 
         
 
              Claimant and defendants bear equally the costs of this 
 

 
         
 
         
 
         
 
         PETERS V. SWIFT INDEPENDENT PACKING COMPANY
 
         Page   5
 
         
 
         
 
         action but for the cost of transcribing these proceedings, which 
 
         shall be borne wholly by claimant's counsel.
 
         
 
         
 
         
 
              Signed and filed this 10th day of July, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          HELEN JEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         P.O. Box 3086
 
         200 Home Federal Building
 
         Sioux City, Iowa 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2502; 2503
 
                                                 Filed 7-10-87
 
                                                 Helen Jean Walleser
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         RONALD PETERS,
 
         
 
              Claimant,
 
                                                 File No. 699108
 
         VS.
 
         
 
         SWIFT INDEPENDENT PACKING
 
                                                   R E V I E W
 
         COMPANY,
 
                                                 R E 0 P E N I N G
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         2502; 2503
 
         
 
              Claimant awarded $100 payment for section 85.39 examination 
 
         despite prior agreement for settlement.
 
         
 
              Claimant denied payment for nonauthorized medical care under 
 
         section 85.27.