BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS R. GRIFFITH,
 
         
 
              Claimant,
 
                                                       File No. 710847 
 
         VS.
 
         
 
         SMITH'S TRANSFER, INC.,
 
                                                    A R B I T R A T I 0 N 
 
         
 
              Employer,
 
         
 
         and
 
                                                       D E C I S I 0 N 
 
         TRANSPORT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Thomas R. 
 
         Griffith, claimant, against Smith's Transfer Corporation, 
 
         employer, and Transport Insurance Company, insurance carrier.  
 
         Claimant seeks additional permanent partial,disability 
 
         compensation and also section 85.27 benefits based upon the 
 
         injury that occurred on July 26, 1982.  The case was heard at Des 
 
         Moines, Iowa on September 2, 1987 and was considered fully 
 
         submitted upon conclusion of the hearing.  The record in the 
 
         proceeding consists of joint exhibits 1 through 16, claimant's 
 
         exhibits 17 and 18, and defendants' exhibit B. The record also 
 
         contains testimony from Thomas R. Griffith and from William E. 
 
         Caldwell.
 
         
 
                                      ISSUES
 
         
 
              The issues presented for determination are the extent of 
 
         claimant's permanent partial disability and the employer's 
 
         liability for the two medical bills which claimant submitted.  
 
         The occurrence of injury arising out of and in the course of 
 
         employment was stipulated and the stipulated rate of compensation 
 
         is $436.08 per week.  It was further stipulated that all healing 
 
         period compensation has been paid, that 25 weeks of permanent 
 
         partial disability compensation have been paid and that the 
 
         stipulated date for commencement of permanent partial disability 
 
         compensation is December 12, 1985.
 
         
 
         
 
         
 
                            SUMMARY OF EVIDENCE
 

 
         
 
         
 
         
 
         GRIFFITH V. SMITHOS TRANSFER, INC.
 
         Page   2
 
         
 
         
 
         
 
              The following is a brief summary of pertinent evidence.  All 
 
         evidence received at the hearing was considered when deciding 
 
         this case.
 
         
 
              Thomas R. Griffith was an over-the-road truck driver who was 
 
         injured in an accident that occurred in the state of Minnesota on 
 
         July 26, 1982.  He injured his head and elbow and had stitches in 
 
         his forehead and elbow.  There was a possible loss of 
 
         consciousness and retrograde amnesia concerning the accident 
 
         (joint exhibit 1).  Following the accident claimant continued to 
 
         experience pain in the cervical region and headaches.  Various 
 
         treatments were administered including hot packs, traction, a 
 
         TENS unit and prescription medications (joint exhibit 2).  
 
         Claimant experienced blackout spells as well as a continuing 
 
         problem with headaches.  Evaluations were performed by a number 
 
         of physicians.  A report dated October 14, 1983 from Richard T. 
 
         Beaty, D.O., the primary treating physician, concluded that 
 
         claimant had probably stabilized with regard to his diagnosed 
 
         post concussion syndrome, that he may continue to improve and 
 
         should not deteriorate, that he had a 5% permanent partial 
 
         disability based upon recurrent cephalgia for which Fiorinal Tabs 
 
         were prescribed (joint exhibit 8).  The last report from Dr. 
 
         Beaty is an office note dated March 23, 1984 in which he 
 
         indicated that he does not believe that claimant would be able to 
 
         return to his previous job activity as an over-the-road truck 
 
         driver (joint exhibit 10).
 
         
 
              Claimant was evaluated by Eugene Collins, M.D., in late 1982 
 
         and early 1983.  A CT scan was interpreted as being negative and 
 
         claimant's headache symptoms were reported as improving at that 
 
         time (joint exhibit 11).
 
         
 
              Claimant was evaluated by Stuart R. Winston, M.D., a 
 
         neurosurgeon, in mid-1984.  Dr. Winston felt that claimant 
 
         suffered from a chronic myofascial strain and associated muscle 
 
         contraction headache.  He recommended further diagnostic testing 
 
         in the form of an EEG performed with nasopharyngeal electrodes.  
 
         Dr. Winston did relate claimant's complaints to the accident of 
 
         July, 1982 (joint exhibit 12).  When the testing was completed, 
 
         Dr. Winston indicated that claimant should be able to return to 
 
         over-the-road truck driving (joint exhibit 13).
 
         
 
              The testing contemplated by Dr. Winston was performed at the 
 
         University of Hospitals and Clinics, Department of Neurology, in 
 
         mid-1984.  The EEG was abnormal due to occasional left-right 
 
         shifting sharp temporal transients weakly suggestive of a 
 
         convulsive tendency.  T. Yamada, M.D., a staff physician in the 
 
         Department of Neurology, concluded that claimant may have a 
 
         convulsive disorder secondary to a post concussion syndrome and 
 
         recommended further testing (joint exhibit 14).  Upon conducting 
 
         the further testing, similar results were obtained, but Dr. 
 
         Yamada did not considered the abnormalities to be convincing 
 
         evidence of a seizure disorder.  Since claimant had not had any 
 
         blackout spells for a period of time, anticonvulsant medication 
 
         was not administered (joint exhibits 15 and 16).
 
         
 
              Claimant currently works primarily on the dock loading and 
 
         unloading trailers.  He does some city delivery driving and short 
 

 
         
 
         
 
         
 
         GRIFFITH V. SMITHOS TRANSFER, INC.
 
         Page   3
 
         
 
         
 
         runs to other cities within a sixty-mile radius.  Claimant 
 
         testified that he has not returned to over-the-road truck driving 
 
         because of a number of factors including Dr. Beaty's 
 
         recommendation that he refrain from over-the-road,driving, his 
 
         uncertainty regarding whether he would be able to perform the 
 
         job, the fact that simply driving a car for extended distances 
 
         brings on headaches and the fact that he has a family and prefers 
 
         to be at home with them.  Claimant testified that he earned an 
 
         average of approximately $800 per week when working as an 
 
         over-the-road truck driver in 1982 and that he now earns an 
 
         average of approximately $750 per week as a dock worker for 
 
         Smith's Transfer.  Claimant indicated that pay raises have 
 
         occurred since 1982 in both the driving and dock worker 
 
         positions.  In 1986, claimant earned $31,884.95 from his 
 
         employment (defendants' exhibit B).
 
         
 
              Griffith testified that he is 39 years of age, married and 
 
         has one child.  He holds a B.A. degree in sociology and education 
 
         from Drake University which he obtained in 1972, but has never 
 
         worked in the field.  His prior employment history includes 
 
         working as a local delivery driver for a welding supply company 
 
         and also as a rental manager for a truck rental company.  He has 
 
         been with Smith's Transfer for approximately 10 years and is 53rd 
 
         in seniority out of 82 or 83 other employees.  The future 
 
         security of his employment with Smith's Transfer appears somewhat 
 
         uncertain due to a recent purchase of the company by another 
 
         business.
 
         
 
              Claimant's current complaints are essentially headaches of 
 
         two varieties.  Claimant testified that he experiences severe 
 
         incapacitating headaches on a frequency of approximately one per 
 
         week.  He also complained of regular headaches which he described 
 
         as a nuisance or bothersome but which do not prevent him from 
 
         functioning.  He stated that Tylenol is effective for treating 
 
         the regular headaches, but that even prescription medication did 
 
         not help control the severe headaches which come on without any 
 
         known cause and which normally last for four to eight hours.
 
         
 
              William E. Caldwell, the Smith's terminal manager at 
 
         Davenport, Iowa where claimant is employed, is acquainted with 
 
         claimant.  Caldwell testified that claimant is currently 
 
         qualified as an over-the-road driver and that such is a 
 
         requirement for being employed as a driver or as a dock worker.  
 
         He testified that claimant had missed five days from work due to 
 
         illness in 1986 and 1987.  Caldwell confirmed that both dock 
 
         workers and drivers had experienced pay raises since 1982.  He 
 
         would not disagree with a rate increase of from $.31 to $.34 per 
 
         mile in over-the-road driver compensation since 1982.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant's injury involved his head.  His continuing 
 
         complaints and the disabilities rated by the physicians deal with 
 
         headaches and problems other than those located.in scheduled 
 
         members.  As stipulated by the parties, the disability should be 
 
         evaluated industrially.
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 

 
         
 
         
 
         
 
         GRIFFITH V. SMITHOS TRANSFER, INC.
 
         Page   4
 
         
 
         
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              The stipulated rate of compensation is consistent with 
 
         claimant's testimony that he earned an average of approximately 
 
         $800 per week at the time of injury.  Defendants' exhibit B shows 
 
         claimant's 1986 earnings to have been an average of approximately 
 
         $615 per week.  Exhibit B also shows that, by August of 1987, 
 
         claimant had earned $21,251.00.  When averaged over the 32 
 
         completed weeks of 1987, the average is approximately $665 per 
 
         week.  When compared to his 1982 average of $800 per week, and 
 
         considering approximately a 10% increase in over-the-road driver 
 
         income as would accompany a rate increase of from $.31 to $.34 
 
         per mile, it is clear that claimant has experienced a substantial 
 
         reduction in actual earnings.  Since he is not driving over the 
 
         road, however, claimant also does not have the expenses for meals 
 
         and other road expenses that are commonly absorbed by 
 
         over-the-road drivers.
 
         
 
              Claimant's complaints regarding his headaches and their 
 
         aggravation by driving an automobile are accepted as true and 
 
         correct.  His testimony that trucks typically provide a less 
 
         comfortable ride than an automobile is also accepted as correct. 
 
          The medical authorities are in some disagreement regarding 
 
         whether or not claimant is medically capable of returning to 
 
         over-the-road driving.  The primary piece of objective evidence 
 
         in this regard is the EEG results from the University of Iowa 
 
         Hospitals and Clinics which did in fact produce abnormal results, 
 
         even though they were interpreted as not providing convincing 
 
         evidence of a seizure disorder.  Where objective evidence of some 
 
         abnormality exists, even though it may not be convincing or 
 
         compelling, the fact of a history of blackouts following the 
 
         injury and continuing severe headaches is sufficient to warrant a 
 
         conservative attitude on the issue of claimant's returning to 
 
         over-the-road driving.  The consequences of a blackout could be 
 
         quite severe for claimant and for other users of the highways.  
 
         Claimant's decision to remain in a dock-worker position is 
 
         certainly reasonable even though well-respected medical 
 
         authorities have indicated that it is probably not necessary for 
 
         him to refrain from over-the-road driving.  Even though he is 
 
         probably capable of performing over-the-road driving, that type 
 
         of activity is something which Dr. Winston indicated would be 
 
         likely to produce discomfort (joint exhibit 12).  Claimant's 
 
         testimony regarding his recurrent headaches, both regular and 
 
         severe, is accepted as being true and correct.  It is further 
 
         found that driving a rough-riding truck would be likely to 
 

 
         
 
         
 
         
 
         GRIFFITH V. SMITHOS TRANSFER, INC.
 
         Page   5
 
         
 
         
 
         produce significant discomfort and would aggravate the injuries 
 
         suffered on July 26, 1982.  While claimant probably could 
 
         actually work as an over-the-road driver, it is found that he 
 
         could do so only by enduring increased discomfort and with some, 
 
         albeit minimal, risk to himself and to others through blackouts. 
 
          When claimant's 1982 earnings are compared with the 1986 
 
         earnings as a dock worker, there appears to be approximately a 
 
         25% loss of actual earnings.  When computed in comparison to the 
 
         average 1987 earnings to date, the result is a 20% reduction in 
 
         actual earnings.  When compared to the claimant's estimated 
 
         average earning level of $750 per week, the result is a 7% 
 
         reduction in earnings.  If the over-the-road earning level is 
 
         increased by approximately 10%, as would seem appropriate 
 
         according to Caldwell's testimony, the weekly gross would be $880 
 
         per week.  When viewed in comparison to $750 per week, the result 
 
         is a 17% loss of actual earnings.  Even this amount, however, is 
 
         probably a much smaller loss of earning capacity than what would 
 
         have resulted if claimant had been forced to seek other 
 
         employment, even when it is considered that he holds a B.A. 
 
         degree.  It is also recognized, however, that a number of factors 
 
         not related to the injury have played some part in claimant's 
 
         decision to not return to over-the-road trucking.  It cannot be 
 
         said, however, that those are the only reasons or that the 
 
         results of the injury played no significant part in his failure 
 
         to return to over-the-road driving.  When all the applicable 
 
         factors of industrial disability are considered, it is found and 
 
         concluded that claimant has a 12 1/2% permanent partial 
 
         disability in industrial terms as a result of the injury of July 
 
         26, 1982.
 
         
 
              Claimant seeks payment of medical expenses in the amount of 
 
         $165.00 with C. F. Andrews, D.O., and $26.00 with Osteopathic 
 
         Radiology Associates (claimant's exhibits 17 and 18).  Claimant 
 
         testified that he was referred to both of those providers of care 
 
         by Dr. Seitz, the company physician, and such is confirmed on 
 
         exhibit 18.  Claimant testified that the services performed were 
 
         related to his continuing complaints following the 1982 accident.  
 
         No evidence is in the record conflicting with claimant's 
 
         testimony regarding the referral and reason for the referral.  It 
 
         is well established that referral by an authorized physician is 
 
         authorization for the treatment that is provided.  Limoges v. 
 
         Meier Auto Salvage, I Iowa Industrial Commissioner Report, 207 
 
         (1981).  Defendants are therefore responsible for payment of the 
 
         bills in the total amount of $191.00.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Both witnesses who testified at hearing are found to be 
 
         fully credible.
 
         
 
              2.  Thomas R. Griffith is a 39-year-old married man who 
 
         suffers from continuing headaches as a result of a truck accident 
 
         that occurred on July 26, 1982.
 
         
 
              3.  EEG tests performed at the University of Iowa Hospitals 
 
         and Clinics identified some abnormality, but it was not of a 
 
         sufficient degree to be considered as convincing evidence of a 
 
         seizure disorder.
 
         
 

 
         
 
         
 
         
 
         GRIFFITH V. SMITHOS TRANSFER, INC.
 
         Page   6
 
         
 
         
 
              4.  Claimant is not, medically speaking, prohibited from 
 
         working as an over-the-road truck driver.
 
         
 
              5.  For claimant to work as an over-the-road truck driver it 
 
         would exacerbate his continuing symptoms that resulted from the 
 
         1982 accident.
 
         
 
              6.  For claimant to work as an over-the-road truck driver 
 
         there would be some slight risk of him developing a blackout 
 
         seizure which could have severe consequences on himself and on 
 
         other users of the highways.
 
         
 
              7.  It is not unreasonable that claimant chooses to remain a 
 
         dock worker rather than returning to over-the-road truck driving, 
 
         even though he is medically and legally qualified to work as an 
 
         over-the-road driver.
 
         
 
              8.  Claimant's medical expenses incurred with C. F. Andrews, 
 
         D.O., and Osteopathic Radiology Associates were proximately 
 
         caused by the accident of July 26, 1982 and that accident was a 
 
         proximate cause of the services provided.  The services were 
 
         authorized by the employer acting through its company physician, 
 
         Dr. Seitz.
 
         
 
         
 
              9.  Claimant continues to suffer from headaches, some severe 
 
         and incapacitating, others of a lesser level.
 
         
 

 
         
 
         
 
         
 
         GRIFFITH V. SMITHOS TRANSFER, INC.
 
         Page   7
 
         
 
         
 
             10.  Claimant is a college graduate with a B.A. degree in 
 
         sociology and education, but he has never worked in that field.
 
         
 
             11.  Claimant is well motivated to be gainfully employed, of 
 
         above average intelligence and emotionally stable.
 
         
 
             12.  Most of claimant's work experience is in the trucking 
 
         industry.
 
         
 
             13.  Personal reasons, as well as the results of the 1982 
 
         injury, have played a part in claimant's decision to not return 
 
         to over-the-road trucking.
 
         
 
             14.  Claimant's actual loss of earnings had been in the range 
 
         of 20%.
 
         
 
             15.  Claimant has a 12 1/2% loss of earning capacity when all 
 
         the appropriate factors of industrial disability are considered.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant's disability in industrial terms under section 
 
         85.34(2)(u) is a 12 1/2% permanent partial disability of the body 
 
         as a whole.
 
         
 
              3.  Defendants are,responsible for payment of claimant's 
 
         medical expenses under the provisions of section 85.27 of the 
 
         Code in the amount of $191.00.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants shall pay claimant 
 
         sixty-two and one-half (62 1/2) weeks of permanent partial 
 
         disability at the rate of four hundred thirty-six and 08/100 
 
         dollars ($436.08) per week commencing December 12, 1985.  
 
         Defendants are entitled to full credit for the twenty-five (25) 
 
         weeks previously paid and shall pay the remaining thirty-seven 
 
         and one-half (37 1/2) weeks in a lump sum together with interest 
 
         pursuant to section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants shall pay claimant one 
 
         hundred ninety-one dollars ($191.00) for his medical expenses 
 
         incurred with Osteopathic Radiology Associates and C. F. Andrews, 
 
         D.O.
 
         
 
              IT IS FURTHER ORDERED that costs of this action are assessed 
 
         against defendants in accordance with Division of Industrial 
 
         Services' Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants shall file Claim 
 
         Activity Reports as requested by the agency pursuant to Division 
 
         of Industrial Services' Rule 343-3.1.
 
         
 
         
 
         
 
              Signed and filed this 8th day of September, 1987.
 

 
         
 
         
 
         
 
         GRIFFITH V. SMITHOS TRANSFER, INC.
 
         Page   8
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Building
 
         111 East Third Street
 
         Davenport, Iowa 52801
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         Suite 300, Fleming Building
 
         218 Sixth Avenue
 
         Des Moines, Iowa 50309
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40, 1803
 
                                                 Filed September 8, 1987
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS R. GRIFFITH,
 
         
 
              Claimant,
 
                                                    File No. 710847
 
         VS.
 
         
 
         SMITH'S TRANSFER, INC.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
         
 
         and
 
                                                   D E C I S I 0 N
 
         TRANSPORT INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1402.40, 1803
 
         
 
              Claimant, a 39-year-old former over-the-road truck driver, 
 
         due to headaches and continuing complaints following a truck 
 
         accident, has chosen to remain as a dock worker rather than 
 
         returning to over-the-road driving.  Other factors also played a 
 
         part in his decision to remain a dock worker.  Claimant's 
 
         decision was found to be reasonable in view of a risk, albeit 
 
         minimal, of blackouts.  (Claimant had a history of blackouts for 
 
         a period of time after the accident, but has had none recently.  
 
         EEGs showed some abnormality but not of sufficient degree to be 
 
         diagnosed as a seizure disorder.)   Claimant's actual reduction 
 
         in earnings was in the range of 20%.  Claimant awarded 12 1/2% 
 
         permanent partial disability industrially.
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         JERRY RACKLEY,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                    File No. 710994
 
         ORBA JOHNSON TRANSSHIPMENT COMPANY,
 
                                                 A R B I T R A T I 0 N 
 
              Employer,
 
         and
 
                                                    D E C I S I 0 N 
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Jerry W. 
 
         Rackley, claimant, against Orba Johnson Transshipment Company, 
 
         employer, and Wausau Insurance Companies, insurance carrier.  The 
 
         parties captioned the case as one in review-reopening, but there 
 
         is no prior settlement, award or memorandum of agreement from 
 
         which to reopen and it is therefore an arbitration proceeding.
 
         
 
              Claimant seeks compensation for temporary total disability 
 
         or healing period since he has been off work up to the date of 
 
         hearing.  The primary issue, however, is that claimant desires to 
 
         have surgery and defendants have declined to send claimant to a 
 
         physician who will perform the desired surgery and defendants 
 
         will not authorize claimant to select a physician of his own 
 
         choice at defendants' expense.  Claimant requests that defendants 
 
         be required to furnish a physician who will perform the desired 
 
         surgery or to authorize him to select his own physician.  
 
         Defendants urge that there is no causal relationship between the 
 
         1982 injury and claimant's current complaints.  Alternatively, 
 
         defendants allege that claimant's benefits should be suspended 
 
         due to an alleged failure to cooperate with the physicians who 
 
         have previously treated or examined him.
 
         
 
              The hearing commenced at Des Moines, Iowa on March 10, 1987 
 
         and was fully submitted.  The record consists of claimant's 
 
         exhibits 1 through 51, defendants' exhibits A, B and C and 
 
         claimant's testimony.  Official notice was taken of the most 
 
         recent form 2A in the agency file which is dated December 10, 
 
         1984 and which shows weekly compensation payments paid, including 
 
         56 weeks of permanent partial disability, in the total amount of 
 
         $14,915.97 and medical benefits paid in the amount of $9,377.69. 
 
         The date of last payment of weekly compensation is shown as 
 
         December 10, 1984.
 
         
 
                          ISSUES AND STIPULATIONS
 
         
 
              It was stipulated that claimant sustained an injury on 
 

 
         August 6, 1982 which arose out of and in the course of his 
 
         employment and that the rate of compensation, in the event of an 
 
         award of weekly benefits, is $187.79 per week.  The primary issue 
 
         is whether defendants are to be required to provide claimant 
 
         further medical treatment, in particular, the surgery which he 
 
         requests.  The defense to the claim is a lack of causal 
 
         connection and failure of claimant to cooperate with the 
 
         previously authorized physicians.
 
         
 
                           SUMMARY OF EVIDENCE
 
         
 
              All evidence received at the hearing was considered when 
 
         deciding this case even though it may not necessarily be referred 
 
         to in this decision.
 
         
 
              Jerry W. Rackley is a 39-year-old married man who fell from 
 
         a bulldozer on August 6, 1982 resulting in an injury to his back.  
 
         While seeking medical care under the direction of Jerry L. 
 
         Jochims, M.D., a disagreement arose and claimant's care was 
 
         transferred to the Steindler Clinic at Iowa City, Iowa 
 
         (claimant's exhibit 33).  After diagnostic tests were completed, 
 
         surgery upon claimant's back was performed on November 10, 1982 
 
         by Webster B. Gelman, M.D., an orthopaedic surgeon.  The surgery 
 
         was a "Partial laminotomy, right, L5-Sl, removal of lateral 
 
         recess stenosis [sic].  Laminotomy, L4-5, left, and correction of 
 
         L4-5 lateral recess stenosis bilaterally." (Claimant's exhibit 
 
         36).  After a period of recuperation, Dr. Gelman authorized 
 
         claimant to return to work on February 14, 1983 (claimant's 
 
         exhibit 45).  Dr. Gelman's office notes indicate that claimant 
 
         had a follow-up visit on May 12, 1983 at which time it appears 
 
         claimant stated he was doing very well except occasional cramping 
 
         in his right leg.  A diminished right ankle reflex was noted and 
 
         a 10% body as a whole permanent partial disability rating was 
 
         given.  Subsequently, on September 22, 1983, Dr. Gelman noted 
 
         that claimant made complaint of cramping in both calves, but Dr. 
 
         Gelman felt that those symptoms were not related to the back 
 
         injury.  The next entry in the record of claimant seeking medical 
 
         care is found at claimant's exhibit 24 which indicates that, on 
 
         July 19, 1984, claimant again saw Dr. Gelman and reported that 
 
         approximately two weeks earlier, he experienced "a bad 'popping' 
 
         sensation in his lower back and developed a tender catch with 
 
         motion and burning in both legs." Dr. Gelman noted that claimant 
 
         had reduced his activity level and had improved somewhat.  He 
 
         recommended that claimant increase his activity and return to 
 
         work on July 23, 1984, but that if symptoms persist to the end of 
 
         the month, a CT scan should be performed.  The next entry in the 
 
         record of claimant seeking medical care is his first appointment 
 
         with Donald Mackenzie, M.D., which occurred on May 15, 1985 when 
 
         claimant made complaint of a gradual worsening of his condition 
 
         ever since the time of surgery.  Five days later, on May 20, 
 
         1985, claimant discontinued any further work-up and indicated 
 
         that he was going to live with his problem.  Claimant testified 
 
         that he was involved in a motor vehicle accident in July, 1985.  
 
         His next medical visit was August 1, 1985 when he returned to Dr. 
 
         Mackenzie.  Diagnostic tests which had been performed led Dr. 
 
         Mackenzie to diagnose disc herniation and to recommend surgery.  
 
         On September 17, Dr. Mackenzie ordered physical therapy for 
 
         claimant's complaints of neck pain which apparently had started 
 
         at the time of the motor vehicle accident (MVA) (claimant's 
 
         exhibit 8). Due to a disagreement with claimant, Dr. Mackenzie 
 
         took himself off the case on November 13, 1985.
 
         
 
              Claimant was then examined by Koert Smith, M.D., on January 
 
         7, 1986 and in his report, Dr. Smith stated as follows:
 

 
         
 
         
 
         
 
         RACKLEY V. ORBA JOHNSON TRANSSHIPMENT COMPANY
 
         Page   3
 
         
 
         
 
         
 
              I would feel that at this time, assuming it can be 
 
              documented, that he has had continued symptoms since 
 
              his last surgery, that he would rate a 20% impairment 
 
              for surgical excision of a disc without fusion with 
 
              moderate persistent pain and stiffness, aggravated by 
 
              heavy lifting.  If, however, it can be documented that 
 
              after his last surgery, that he got along well for two 
 
              years and only recently began to develop symptoms; I 
 
              would think that his initial impairment should have 
 
              been 10% and unless a new injury can be documented at 
 
              work, any additional impairment, namely the additional 
 
              10%, would be simply due to wear and tear in the 
 
              natural course of the disease and not necessarily work 
 
              related. (Claimant's exhibit 4)
 
         
 
              In a subsequent report dated October 15, 1986, issued after 
 
         Dr. Smith discovered that claimant had engaged in riding mules at 
 
         the time of his earlier report, he then went on to state:
 
         
 
              He then apparently did well enough that he was able to 
 
              return to work sometime in 1983, and at that time would 
 
              have assumed that his impairment rating would have been 
 
              10%, based on surgical excision of a disc with good 
 
              result.  Certainly without any documented sudden 
 
              worsening of his condition with a new injury at work, 
 
              especially in light of activities such as riding mules 
 
              and riding 3-wheelers, his present worsened symptoms 
 
              and subsequent increase impairment rating from 10% to 
 
              20%, would be difficult if not impossible to causally 
 
              relate to any work injury, based on records available 
 
              to me. (Defendants' exhibit C)
 
         
 
              Dr. Mackenzie initially indicated that possible causes of 
 
         claimant's complaints were further disc injury unrecognized at 
 
         the time of surgery, scarring from the previous surgery that was 
 
         impinging on nerve roots or spinal instability (defendants' 
 
         exhibit C, report dated 5-21-85).  After conducting diagnostic 
 
         tests, Dr. Mackenzie again diagnosed worsening low back pain 
 
         radiating to both legs and stated that it was "probably due to a 
 
         combination of retained disc fragment and epineural scarring." 
 
         (defendants' exhibit C, report dated 8-13-85).  In a report dated 
 
         September 4, 1985, Dr. Mackenzie stated that claimant Is previous 
 
         discectomy surgery was successful and that his problem is now 
 
         degeneration of a second disc, which was undoubtedly injured at 
 
         the time of the initial injury and which has now become 
 
         sufficiently symptomatic to be causing claimant's problems 
 
         (defendants' exhibit C).  Subsequently, however, in a report 
 
         dated December 5, 1986, issued after reviewing claimant's 
 
         deposition testimony regarding riding mules and a 3-wheel 
 
         all-terrain cycle, Dr. Mackenzie expressed disagreement with Dr. 
 
         Smith's conclusion that claimant's permanent partial impairment 
 
         rating had increased from 10% to 20%.  Dr. Mackenzie explained 
 
         that damage from a spinal injury may not manifest itself for as 
 
         much as 24 months after the injury was sustained.  He stated that 
 
         deterioration of the spine occurs through a series of 
 
         micro-traumatic events throughout life, but that, if it is 
 
         possible to identify an episode of rather severe trauma which is 
 
         followed by rapid deterioration within 24 months, then a causal 
 

 
         
 
         
 
         
 
         RACKLEY V. ORBA JOHNSON TRANSSHIPMENT COMPANY
 
         Page   4
 
         
 
         
 
         relationship has been established within a reasonable degree of 
 
         medical certainty.  With regard to this case, Dr. Mackenzie 
 
         stated:
 
         
 
              After two years, based on current medical knowledge, I 
 
              think there is little way to establish this connection 
 
              and this is particularly true when the patient's 
 
              recreational or home activities have been as demanding 
 
              as those in his work place.
 
         
 
              The above discussion leads me to believe that there is 
 
              an equal likelihood of his current symptoms being 
 
              caused by his continued presence in the work place, as 
 
              there is of them being caused as a result of his other 
 
              activities.
 
         
 
              Claimant testified that his symptoms had gradually worsened 
 
         since the time of surgery in 1982 (defendants' exhibit A, pages 
 
         29-31).  He denied the occurrence of any event which had any 
 
         appreciable effect upon his back, be it at work or otherwise 
 
         (defendants' exhibit A, pages 26-28).  Claimant stated that, 
 
         after being involved in the auto accident, he went to Dr. 
 
         Mackenzie on the following day, but that supervisors at work 
 
         would not let him return to work (defendants' exhibit A, page 
 
         27).  Rackley testified that he hurt his upper back and shoulder 
 
         in the auto accident.  He stated in his deposition that he also 
 
         hurt his low back in the accident (defendants' exhibit A, page 
 
         28, lines 9-12).  At hearing he denied injuring his low back in 
 
         the accident.
 
         
 
              When deposed, claimant characterized his mule and 3-wheel 
 
         cycle riding as what could be considered infrequent.  He 
 
         indicated that the mule riding was not particularly troublesome 
 
         for his back, but that riding the 3-wheeler did aggravate it 
 
         considerably (defendants' exhibit A, pages 39-51).
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              The occurrence of injury was stipulated.  Claimant's 
 
         description of the accident which occurred on August 6, 1982 when 
 
         he injured his back when he fell from a bulldozer is accepted as 
 
         correct.  Claimant has established that he received an injury 
 
         which arose out of and in the course of his employment.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 6, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The quest on 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).
 
         
 
              With regard to his initial treatment leading up to and 
 
         including the surgery and post-operative care from Dr. Gelman, 
 
         the sequence of events is such that there is no question but that 
 
         a causal connection exists between the fall, the initial 
 

 
         
 
         
 
         
 
         RACKLEY V. ORBA JOHNSON TRANSSHIPMENT COMPANY
 
         Page   5
 
         
 
         
 
         disability, the treatment and some resulting degree of permanent 
 
         partial disability.  From the form 2A which is in evidence, it 
 
         appears (without actually hereby deciding) that claimant was paid 
 
         all healing period and medical benefits which were due up to the 
 
         time that he returned to work in early 1983.  The sufficiency of 
 
         the amount of permanency that has been paid is not an issue to be 
 
         addressed in this decision.
 
         
 
              The crucial issue in this case is whether that original 
 
         August 6, 1982 injury is a proximate cause of the worsening of 
 
         claimant's condition of which he complains and for which he seeks 
 
         authorization for surgery.
 
         
 
              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).
 
         
 
              In the sense that the fall from the bulldozer injured 
 
         claimant's back and left it in a weakened condition, it can be 
 
         urged that anything that happens to claimant's back subsequent 
 
         thereto was proximately caused by that original injury.  Such is 
 
         not, however, believed to be an appropriate rule of law.  The 
 
         increased susceptibility to injury is a matter to be compensated 
 
         by an award of permanent partial disability rather than a 
 
         lifetime of causal connection.  The record in this case provides 
 
         no expert medical testimony which relates the original injury to 
 
         the worsening of claimant's complaints.  In fact, evidence from 
 
         Drs.  Smith and Mackenzie is to the effect that it is not 
 
         possible to determine whether the worsening is a result of the 
 
         original injury or some intervening event or events.  It appears 
 
         that, at the time claimant was last seen by Dr. Gelman in 1983, 
 
         he was continuing to have symptoms.  He did not, however, seek 
 
         further medical care until July of 1984 when he reported an 
 
         incident of a "popping" sensation in his back and enhanced 
 
         symptoms.  Interestingly, this coincides with a period of payment 
 
         of healing period compensation as reported on the form 2A even 
 
         though there is no indication in the record identifying when, 
 
         where or under what circumstances that "popping" sensation 
 
         occurred.  In his testimony, however, claimant denied 
 
         experiencing any such events (defendants' exhibit A, page 26, 
 
         lines 15-20).  The record does not reflect the precise date on 
 
         which the 1985 auto accident occurred.  When claimant saw Dr. 
 
         Mackenzie for the second time in May of 1985, he indicated that 
 
         he was going to discontinue any attempts at treatment and was 
 
         going to live with his condition.  At some point in time shortly 
 
         after the auto accident which apparently occurred in July, 
 
         claimant was again under treatment by Dr. Mackenzie for purposes 
 
         of diagnostic tests.  Apparently, something occurred to cause 
 
         claimant to return to Dr. Mackenzie.  The only things in the 
 
         record which could explain that timing are either the July 
 

 
         
 
         
 
         
 
         RACKLEY V. ORBA JOHNSON TRANSSHIPMENT COMPANY
 
         Page   6
 
         
 
         
 
         automobile accident or the letter giving Dr. Mackenzie 
 
         authorization to perform diagnostic tests (claimant's exhibit 8) 
 
         and the letter from Dr. Mackenzie to claimant informing him that 
 
         further testing could be arranged (claimant's exhibit 17).
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the result.  It need not be the only cause. 
 
         Blacksmith v. All-American, Inc. 290 N.W.2d 348, 354 (Iowa 
 
         1980).
 
         
 
              Claimant must prove by a preponderance of the evidence that 
 
         there is a causal connection between the employment incident or 
 
         activity and the injury upon which his claim is based.  A 
 
         possibility is insufficient; a probability is necessary.  Holmes 
 
         v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 297 (Iowa 1974).  
 
         Whether a disability has a direct causal connection with the 
 
         claimant's employment is essentially within the domain of expert 
 
         testimony.  Bodish v. Fisher, Inc., 257 Iowa 516, 133 N.W.2d 867, 
 
         870 (1965).  Expert testimony that a condition could possibly be 
 
         related to a claimant's employment, although insufficient alone 
 
         to support a finding of causal connection, could be coupled with 
 
         nonexpert testimony to show causation and be sufficient to 
 
         sustain an award.  Giere v. Aase Haugen Homes, Inc., 259 Iowa 
 
         1065, 146 N.W.2d 911, 915 (1966).  Such evidence does not, 
 
         however, compel an award as a matter of law.  Anderson v. Oscar 
 
         Mayer & Co., 217 N.W.2d 531, 536 (1974).
 
         
 
              When all the evidence in the case is considered, it is not 
 
         possible to determine whether the increase in symptoms resulted 
 
         from the original injury or whether it resulted from intervening 
 
         events.  Claimant has failed to introduce evidence showing it to 
 
         be more likely than not that the increase in his symptoms was 
 
         proximately caused by the original injury as opposed to 
 
         intervening events.  He has therefore failed to prove by a 
 
         preponderance of the evidence that the injury of August 6, 1982 
 
         is a proximate cause of his increased symptoms and of any surgery 
 
         or other procedures which would be reasonable and necessary in 
 
         treating the increased symptoms.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Jerry W. Rackley injured his back in a fall from a 
 
         bulldozer while engaged in his employment with Orba Johnson 
 
         Transshipment Company on August 6, 1982.
 
         
 
              2.  The injury produced a need for surgery which was 
 
         performed by Webster B. Gelman, M.D. Following a period of 
 
         recuperation, claimant returned to work in February of 1983.
 
         
 
              3.  Claimant was never completely free of symptoms following 
 
         that surgery and, in July of 1984, experienced an aggravation of 
 
         his back condition for which he was off work approximately three 
 
         weeks.
 
         
 
              4.  In May, 1985, claimant entered into treatment with 
 
         Donald Mackenzie, M.D., but discontinued treatment and did not 
 
         resume it until after being involved in an automobile accident in 
 
         July, 1985.
 
         
 

 
         
 
         
 
         
 
         RACKLEY V. ORBA JOHNSON TRANSSHIPMENT COMPANY
 
         Page   7
 
         
 
         
 
              5.  The original injury of August 6, 1982 left claimant's 
 
         back in a weakened condition which was more susceptible to injury 
 
         than it had been prior to August 6, 1982.
 
         
 
              6.  The evidence in the case does not establish a cause for 
 
         the worsening of symptoms which has occurred.  The evidence shows 
 
         it as likely to be due to the automobile accident or to 
 
         claimant's recreational activities of mule riding or all-terrain 
 
         vehicle riding as it is to the original injury or to some other 
 
         intervening employment-related trauma.
 
         
 
              7.  Claimant has failed to establish that the injury of 
 
         August 6, 1982 was a substantial factor in bringing about the 
 
         increased symptoms which currently afflict him.
 
         
 
                                        
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  The fact that an injury has produced a permanently 
 
         weakened or impaired physical condition does not establish that 
 
         the injury is a proximate cause of all subsequent ailments 
 
         affecting the injured part of the body.  The question of 
 
         causation is a question of fact and the original source of 
 
         weakened or impaired condition is evidence of causation, but it 
 
         must be viewed together with all other evidence, such as 
 
         intervening causes or aggravating traumas.
 
         
 

 
         
 
         
 
         
 
         RACKLEY V. ORBA JOHNSON TRANSSHIPMENT COMPANY
 
         Page   8
 
         
 
         
 
              2.  Claimant has failed to prove by a preponderance of the 
 
         evidence that the injury of August 6, 1982 is a proximate cause 
 
         of the worsening of claimant's symptoms that has occurred 
 
         subsequent to his return to work in early 1983.
 
         
 
              3.  Defendants are not responsible for providing treatment 
 
         for claimant's current spinal complaints or the surgery for which 
 
         he requests authorization.
 
         
 
                                    ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants have no 
 
         responsibility to provide surgical treatment for claimant's 
 
         current spinal affliction.
 
         
 
              IT IS FURTHER ORDERED that claimant is not entitled to 
 
         further weekly compensation for healing period for times 
 
         subsequent to the July, 1985 automobile accident.
 
         
 
              IT IS FURTHER ORDERED.that costs of this proceeding are 
 
         assessed against claimant.
 
         
 
              Signed and filed this 31st day of August, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa 52632
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50, 1402.30
 
                                                 Filed August 31, 1987
 
                                                 MICHAEL G. TRIER
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         JERRY RACKLEY,
 
         
 
              claimant,
 
         
 
         VS.
 
                                                    File No.: 710994
 
         ORBA JOHNSON TRANSSHIPMENT
 
         COMPANY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1108.50, 1402.30
 
         
 
              Where there were conflicts in the evidence and evidence of 
 
         intervening nonoccupational traumas, claimant's request for an 
 
         employer-provided surgeon and healing period or temporary total 
 
         disability was denied.
 
 
 
         
 
 
            
 
           
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DEBRA A. SLADEK,              :
 
                                          :
 
                 Claimant,                :       File No. 711592
 
                                          :
 
            vs.                           :    A R B I T R A T I O N
 
                                          :
 
            K-MART CORPORATION,           :       D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant Debra Sladek seeks medical benefits under the 
 
            Iowa Workers' Compensation Act from her self-insured 
 
            employer, K-Mart Corporation.  Claimant sustained injury 
 
            arising out of and in the course of employment on August 20, 
 
            1982.  Defendant concedes that her injury has caused 
 
            permanent total disability.
 
            
 
                 A hearing was thereupon held in Cedar Rapids, Iowa, on 
 
            April 8, 1993.  The record consists of claimant's exhibits 
 
            1-11, defendant's exhibits A-G and claimant's testimony.
 
            
 
                                      ISSUE
 
            
 
                 The parties have stipulated that claimant sustained 
 
            injury arising out of and in the course of employment on 
 
            August 20, 1982; that the injury caused permanent total 
 
            disability; that the appropriate compensation rate is 
 
            $140.58 per week; and, that there is no dispute as to the 
 
            credit to which defendant is entitled.
 
            
 
                 The sole issue presented for resolution is entitlement 
 
            to medical benefits.  However, the record is unclear as to 
 
            precisely what dispute is presented.  Claimant submitted a 
 
            list of disputed medical expenses with the hearing report; 
 
            defendant agreed to pay each of these except for the 
 
            Towncrest x-ray bill of $55.40.  Causal connection of this 
 
            expense to the work injury was disputed, as is whether the 
 
            expense was authorized.  It was stipulated that treatment 
 
            was reasonable and necessary and the fee charged was fair 
 
            and reasonable.  However, claimant also testified and 
 
            presented an exhibit listing a number of "needs" recommended 
 
            by her authorized physician, Richard F. Neiman, M.D.  It is 
 
            unclear to what extent relief is sought with respect to 
 
            those items, and also as to defendant's position.
 
            
 
                 The parties requested and were granted time to submit 
 
            briefs.  However, none have been filed.  For purposes of 
 
            this decision, the writer will assume that the dispute (if 
 
            any) as to the listed "needs," relates to whether those 
 
            items are covered as medical benefits under Iowa Code 
 
            section 85.27.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy industrial commissioner finds:
 
            
 
                 Debra Sladek suffered a back injury on August 20, 1982, 
 
            when she slipped and fell while walking across a newly 
 
            washed floor.  Multiple surgical treatments have failed to 
 
            relieve symptoms.  Ms. Sladek finds herself totally disabled 
 
            from gainful employment and must live with severe pain and 
 
            physical restrictions.  In particular, sitting is very 
 
            difficult.  On February 21, 1991, Dr. Neiman wrote:
 
            
 
                 Debra is not capable of sitting or standing for 
 
                 any length of time and must change positions.  She 
 
                 has marked restrictions as far as the motion of 
 
                 the back as noted above.  Therefore, flexion, 
 
                 extension and lateral rotation in almost any 
 
                 direction is next to impossible.  She has 
 
                 inability to lift more than approximately 5 to 10 
 
                 pounds without having back discomfort.  She can 
 
                 not drive in a car more than 15 to 20 minutes 
 
                 without discomfort.  She literally is in constant 
 
                 pain.  I feel she is industrially totally disabled 
 
                 and will remain so for an indefinite basis.  I do 
 
                 not anticipate any improvement regarding the 
 
                 industrial impairment.  I wish I had an easier 
 
                 answer for this unfortunate individual but so far 
 
                 no one has come up with such.
 
            
 
            (Claimant's Exhibit 1, Page 6).
 
            
 
                 Claimant also suffers from a hypo-reflexic sensory 
 
            neurogenic bladder which Dr. Neiman describes as a direct 
 
            consequence of back surgery.
 
            
 
                 Claimant receives frequent injections for the various 
 
            complications of her injury.  On July 22, 1991, an x-ray of 
 
            the left femur was taken at the Towncrest X-ray Department.  
 
            The charge of $55.40 was paid by claimant on September 10, 
 
            1992.  Claimant's undisputed testimony is that this 
 
            particular x-ray was ordered by Dr. Neiman due to her 
 
            frequent injections and the concern that part of a 
 
            hypodermic needle may have "shredded."
 
            
 
                 Claimant supplied Dr. Neiman with a list of items she 
 
            felt necessary.  On February 5, 1993, Dr. Neiman wrote "To 
 
            Whom It May Concern" of the following "list of needs" for 
 
            claimant:
 
            
 
                 TENS unit & supplies (pads, tapes, gel batteries 
 
                 etc)
 
            Handicapped toilet or raised toilet seat
 
            Lifts into house and camper
 
            Canes
 
            Body Casts
 
            Shower bars (grab bars)
 
            Water mattress
 
            Special car to ride in- Chevy Caprice Classic
 
            New front seat
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Special foam for car and camper
 
            Invalid cusions [sic]
 
            Custom made chair
 
            Lift into whirlpool
 
            Pick up sticks
 
            Life Line
 
            Back braces
 
            Catheters
 
            
 
            (Claimant's Exhibit 1, page 12).
 
            
 
                 In other exhibits, Dr. Neiman has specifically 
 
            recommended a home health aide to take care of claimant's 
 
            personnel needs and has pointed out the extreme importance 
 
            of "Life Line" or a similar service so as to allow her 
 
            greater independence.
 
            
 
                         ANALYSIS AND CONCLUSIONS OF LAW
 
            
 
                 In pertinent part, Iowa Code section 85.27 provides:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.  The employer shall also furnish 
 
                 reasonable and necessary crutches, artificial 
 
                 members and appliances but shall not be required 
 
                 to furnish more than one set of permanent 
 
                 prosthetic devices.
 
            
 
                 . . .
 
            
 
                    When an artificial member of orthopedic 
 
                 appliance, whether or not previously furnished by 
 
                 the employer, is damaged or made unusable by 
 
                 circumstances arising out of and in the course of 
 
                 employment other than through ordinary wear and 
 
                 tear, the employer shall repair or replace it.  
 
                 When any crutch, artificial member or appliance, 
 
                 whether or not previously furnished by the 
 
                 employer, either is damaged or made unusable in 
 
                 conjunction with a personal injury entitling the 
 
                 employee to disability benefits, or services as 
 
                 provided by this section or is damaged in 
 
                 connection with employee actions taken which avoid 
 
                 such personal injury, the employer shall repair or 
 
                 replace it.
 
            
 
                 Under rule 343 IAC 8.5, appliances are defined as 
 
            "hearing aids, corrective lenses, orthodontic devices, 
 
            dentures, orthopedic braces, or any other artificial device 
 
            used to provide function or for therapeutic purposes."
 
            
 
                 Coverage for some items is more clear than it is for 
 
            others.  For example, body casts, catheters and TENS 
 
            (transcutaneous electrical nerve stimulation) unit supplies 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            are reasonable medical supplies.  Even though the list was 
 
            originally furnished by claimant, Dr. Neiman's description 
 
            is that of "needs," which implies medical necessity.  The 
 
            TENS unit itself is an orthopedic appliance; that is, an 
 
            artificial device used for therapeutic purpose.  The 
 
            following are also devices intended to provide function or 
 
            therapy: handicapped toilet, shower bars, water mattress, 
 
            invalid cushions and pick up sticks (reach extenders).  
 
            Canes qualify as crutches under 85.27 and are directly 
 
            covered.  Back braces are orthopedic braces under the 
 
            definition of appliances.  Life Line, apparently an 
 
            emergency notification service, is in the nature of a 
 
            medical service necessitated by claimant's condition.
 
            
 
                 A wheelchair is an orthopedic appliance which performs 
 
            a function equivalent to the use of the legs.  McClure v. 
 
            Audubon Brookhiser Transp., Inc., (Appeal Decision, December 
 
            26, 1989).  Similarly, lifts into claimant's house and 
 
            camper are orthopedic appliances and covered.  A custom made 
 
            chair is appropriate modification in the nature of a 
 
            therapeutic appliance, since it allows claimant to sit.  
 
            Claimant's whirlpool lift is wearing out through ordinary 
 
            wear and tear, not through circumstances arising out of and 
 
            in the course of employment, or through personal injury or 
 
            efforts to avoid injury.  Therefore, replacement is not 
 
            covered.
 
            
 
                 Claimant also seeks to be provided a vehicle, since she 
 
            finds riding in the front seat of an ordinary car to be too 
 
            painful.  A vehicle does not replace a lost physical 
 
            function, and is not an appliance.  Zanders v. City of 
 
            Melbourne, (Appeal Decision, November 22, 1989).  Even a van 
 
            used for transportation to medical services some of the time 
 
            does not render a vehicle a covered expense.  However, 
 
            defendant will be required to convert a vehicle to 
 
            claimant's special needs, if she first furnishes the 
 
            vehicle.  McMullin v. Department of Revenue, (Remand 
 
            Decision, August 23, 1991).
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 Defendant shall reimburse claimant in the sum of 
 
            fifty-five and 40/100 dollars ($55.40), representing the 
 
            Towncrest x-ray bill.
 
            
 
                 Defendant shall provide suitable TENS unit and 
 
            supplies, handicapped toilet or raised toilet seat, lifts 
 
            into house and camper, canes, body casts, shower bars, water 
 
            mattress, invalid cushions, custom made chair, pick-up 
 
            sticks, back braces, catheters, and the Life Line telephone 
 
            service.  If claimant first furnishes a vehicle, defendant 
 
            shall appropriately modify the vehicle to claimant's special 
 
            needs.
 
            
 
                 Costs are assessed to defendant.
 
            
 
                 Signed and filed this ____ day of May, 1993.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          
 
                                        ________________________________
 
                                          DAVID R. RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas J Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 
            PO Box 998
 
            Cedar Rapids Iowa 52406-0998
 
            
 
            Mr Joel T S Greer
 
            Attorney at Law
 
            112 West Church Street
 
            PO Box 496
 
            Marshalltown Iowa 50158
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  2501; 2504
 
                                                  Filed May 10, 1993
 
                                                  DAVID R. RASEY
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DEBRA A. SLADEK,    
 
                      
 
                 Claimant,                       File No. 711592
 
                      
 
            vs.                              A R B I T R A T I O N
 
                      
 
            K-MART CORPORATION,                 D E C I S I O N
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            2501; 2504
 
            
 
            After multiple failed back surgeries, defendant conceded 
 
            that claimant is permanently and totally disabled.  In 
 
            addition to one unpaid medical bill, defendant was ordered 
 
            to provide a list of medical supplies and therapeutic and 
 
            functional appliances.  A replacement whirlpool lift was not 
 
            covered, since it wore out through ordinary wear and tear, 
 
            not through employment, personal injury, or an effort to 
 
            avoid personal injury.  They were not ordered to provide 
 
            claimant a vehicle, but were ordered to modify a vehicle to 
 
            be provided by claimant.  McMullin v. Department of Revenue.
 
            
 
 
            
 
            
 
            
 
                                                  52505
 
                                                  Filed July 19, 1994
 
                                                  Marlon D. Mormann
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ------------------------------------------------------------
 
            DEBRA ANN SLADEK,             :
 
                                          :          File No. 711592
 
                 Claimant,                :
 
                                          :
 
            vs.                           :        A R B I T R A T I O N
 
                                          :
 
            K-MART,                       :        D E C I S I O N  O N
 
                                          :
 
                 Employer,                :         E X P E D I T E D
 
                 Self-Insured,            :
 
                 Defendant.               :          P E T I T I O N    
 
                                          :
 
            ------------------------------------------------------------
 
            52505
 
            
 
            Claimant is permanently and totally disabled due to a back 
 
            injury incurred with K-Mart Corporation.  Claimant requested 
 
            services of a home health aide for approximately two hours 
 
            per day to assist her with activities of daily living such 
 
            as dressing, bathing and walking along with general 
 
            cleaning.  Claimant is foreclosed from these activities due 
 
            to the work injury.  Claimant's parents had previously been 
 
            providing the service but can no longer do so due to age and 
 
            health.  But for such assistance, claimant would be 
 
            institutionalized.  Claimant was allowed 14 hours per week 
 
            in home health aide services.
 
            
 
            A prior hearing was held on the issue of section 85.27 
 
            medical benefits on April 8, 1993.  Since an arbitration 
 
            decision was entered by another deputy industrial 
 
            commissioner after that April 8, 1993 hearing, no benefits 
 
            were allowed for services incurred prior to April 8, 1993.
 
 
            
 
            
 
            
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
            ------------------------------------------------------------
 
            DEBRA ANN SLADEK,             :
 
                                          :          File No. 711592
 
                 Claimant,                :
 
                                          :
 
            vs.                           :        A R B I T R A T I O N
 
                                          :
 
            K-MART,                       :        D E C I S I O N  O N
 
                                          :
 
                 Employer,                :         E X P E D I T E D
 
                 Self-Insured,            :
 
                 Defendant.               :          P E T I T I O N    
 
                                          :
 
            ------------------------------------------------------------
 
                             STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by the 
 
            claimant Debra Sladek as a result of injuries occurring on 
 
            August 20, 1982.  A prior arbitration petition was filed 
 
            requesting a decision on medical benefits.  The prior 
 
            hearing was held on April 8, 1993.  A deputy industrial 
 
            commissioner issued a decision in arbitration on May 10, 
 
            1993, which addressed issues under Iowa Code section 85.27.  
 
            
 
                 Claimant filed an additional petition for medical 
 
            benefits on September 19, 1993.  The issue is whether 
 
            claimant is entitled to receive compensation under section 
 
            85.27 for home care services or housekeeping services. 
 
            
 
                 This case was heard and fully submitted by telephone 
 
            conference on July 13, 1994.  Claimant participated and was 
 
            represented by Thomas Currie, Attorney at Law.  Employer 
 
            participated by and through its attorney Joel Greer, 
 
            Attorney at Law.  Testimony was offered on behalf of the 
 
            employer from Martha Anetrini, claims examiner II with 
 
            K-Mart Corporation.
 
            
 
                 The record also consists of claimant's exhibits 1 
 
            through 3 and employer's exhibit A, along with the 
 
            administrative file.  
 
            
 
                                      ISSUE
 
            
 
                 The issue presented for determination is as follows:
 
            
 
                 Whether the employer is responsible to pay for home 
 
            care services, including housekeeping services under section 
 
            85.27.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having considered all of the evidence in the record and 
 
            having heard all the testimony of the witnesses the deputy 
 
            industrial commissioner finds:
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Claimant, Debra Sladek, suffered a severe back injury 
 
            on August 20, 1982.  This injury rendered claimant incapable 
 
            of gainful employment.  Since that time, claimant has been 
 
            assisted with normal household duties by her parents and 
 
            home health aides.  Claimant has difficulty changing her 
 
            bedding, going for walks, bathing, vacuuming, sweeping, 
 
            cleaning, and dressing.  Claimant testified that services of 
 
            a home health aide for about one and one-half to two hours 
 
            per day would allow her to pursue her regular activities of 
 
            daily living.  Claimant's parents had previously been 
 
            assisting in these duties but are now foreclosed from that 
 
            assistance due to health and age.  
 
            
 
                 Claimant's exhibits 1 and 3 indicate that a home health 
 
            aide which would assist claimant with personal needs would 
 
            be most beneficial.  It is found that claimant is not able 
 
            to dress, bath or go for walks without assistance.  But for 
 
            such assistance claimant would be institutionalized.
 
            
 
                 A prior hearing was held on April 8, 1993, which 
 
            addressed the issue of Iowa Code section 85.27 benefits.  A 
 
            decision was subsequently entered by a deputy industrial 
 
            commissioner and became final agency action since neither 
 
            party appealed.  
 
            
 
                         REASONING AND CONCLUSIONS OF LAW
 
            
 
                 The issue in this matter is whether services of a home 
 
            health aide to supply basic housekeeping services, bathing, 
 
            dressing, and walking are compensable under section 85.27 as 
 
            reasonable and necessary means of treating the work injury.  
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.  Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).
 
            
 
                 It is held that the services of a home health aide are 
 
            reasonable and necessary services required under section 
 
            85.27.  That section specifically states that nursing 
 
            services are compensable.  Since claimant has difficulty 
 
            performing tasks which must be considered activities of 
 
            daily living and constantly requires assistance, she is 
 
            entitled to such services so as to prevent her from becoming 
 
            institutionalized.  Dressing, bathing and walking are 
 
            activities of daily living which claimant requires constant 
 
            assistance.  Therefore such assistance for a period of 14 
 
            hours per week is reasonable and appropriate for treatment 
 
            of the injury dated August 20, 1982.  It should be noted 
 
            that the services are not limited to those specific areas.  
 
            The home health aide is also authorized to perform such 
 
            other activities that claimant is unable to perform such as 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            changing bedding, general cleaning, social conversations and 
 
            so on.  This is an order for a home health aide for up to 14 
 
            hours per week in order to assist claimant with activities 
 
            of daily living for which claimant has been prevented from 
 
            performing for herself due to the August 20, 1982 injury.
 
            
 
                 The second question is the commencement date for the 
 
            services.  Since a prior decision was entered by a deputy 
 
            industrial commissioner on the issue of section 85.27 
 
            benefits, this order is effective only from the date of the 
 
            last hearing which was April 8, 1993.  
 
            
 
                                      ORDER
 
            
 
                 IT IS, THEREFORE, ORDERED:
 
            
 
                 Employer, K-Mart Corporation, self-insured, is to pay 
 
            claimant the reasonable expenses for a home health aide to 
 
            work up to fourteen (14) hours per week assisting claimant 
 
            with activities of daily living, including but not limited 
 
            to, dressing, bathing, walking, general household cleaning, 
 
            changing bedding, and such other activities that allow 
 
            claimant to live outside an institution.
 
            
 
                 This order shall be effective for all services rendered 
 
            after April 8, 1993.
 
            
 
                 Costs are assessed to the employer, self-insured.
 
            
 
                 Signed and filed this __________ day of July, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 
            PO Box 998
 
            Cedar Rapids, Iowa  52401-0998
 
            
 
            Mr. Joel T.S. Greer
 
            Attorney at Law
 
            112 W. Church St
 
            PO Box 496
 
            Marshalltown, Iowa  50158
 
            
 
                 
 
            
 
 
            
 
           
 
            
 
            
 
            
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DEBRA A. SLADEK,    
 
                      
 
                 Claimant, 
 
                                               File No. 711592
 
            vs.       
 
                                                MODIFICATION
 
            K-MART CORPORATION, 
 
                                                   ORDER
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            The undersigned filed an arbitration decision on May 10, 
 
            1993.  Upon further consideration, it is clear that error 
 
            was committed with respect to claimant's request for a 
 
            replacement whirlpool lift.
 
            
 
            Under McClure v. Audubon Brookhiser Transp. Inc., (App. 
 
            Dec., December 26, 1989), defendant is liable to furnish 
 
            replacement appliances which wear out through ordinary wear 
 
            and tear.  Giese v. Capitol Foods, III Iowa Industrial 
 
            Commissioner Report 95 (1983).  The last paragraph of Iowa 
 
            Code section 85.27, which the arbitration incorrectly relied 
 
            upon in denying replacement of the whirlpool lift, has 
 
            reference to a subsequent employer, not this defendant.
 
            
 
            IT IS THEREFORE ORDERED that the arbitration decision filed 
 
            on May 10, 1993 should be and is hereby modified to reflect 
 
            that defendant shall provide a replacement whirlpool lift.
 
            
 
            Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                      DAVID R. RASEY
 
                                      DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Thomas J Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 
            PO Box 998
 
            Cedar Rapids Iowa 52406-0998
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            Mr Joel T S Greer
 
            Attorney at Law
 
            112 West Church Street
 
            PO Box 496
 
            Marshalltown Iowa 50158
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  2501-2504
 
                                                  Filed May 12, 1993
 
                                                  DAVID R. RASEY
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DEBRA A. SLADEK,    
 
                      
 
                 Claimant,                       File No. 711592
 
                      
 
            vs.                                  MODIFICATION
 
                      
 
            K-MART CORPORATION,                      ORDER
 
                      
 
                 Employer, 
 
                 Self-Insured,  
 
                 Defendant.     
 
            ___________________________________________________________
 
            
 
            2501 - 2504
 
            
 
            Defendant was ordered to provide a replacement whirlpool 
 
            lift, as, under Iowa Code section 85.27, they remain liable 
 
            to furnish replacement appliances which wear out through 
 
            ordinary wear and tear.  McClure v. Audubon Brookhiser 
 
            Transp. Inc. (App. Dec., December 26, 1989).
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE V. HOLLIDAY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 711863
 
         SPENCER COMPANY,
 
                                                    A P P E A L
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE                    F I L E D
 
         COMPANY,
 
                                                    MAY 10 1989
 
              Insurance Carrier
 
              Defendants.                 IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         claimant permanent total disability benefits as long as claimant 
 
         remains totally disabled as a result of an alleged injury 
 
         sustained on July 26, 1982.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration decision and joint exhibits 1 through 13.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
              
 
                I.  Claimant has failed to establish a causal connection 
 
              between the injuries of 1982 and his present condition.
 
              
 
               II.  Claimant is not permanently and totally disabled based 
 
              on a work related injury.
 
              
 
              III.  The work of a tuck pointer is seasonal and the 
 
              applicable rate should be calculated pursuant to section 
 
              85.36(9) (The Code, 1987).
 
              
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the.law is 
 
         adopted.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Wayne Holliday was an employee of Spencer Company on 
 
         April 1, 1982, and on July 26, 1982, when he sustained injuries 
 
         which arose out of and in the course of his employment.  The 
 
         injury on April 1, 1982, occurred when a compressor unit fell 
 
         upon him across his chest.  The injury of July 26, 1982, occurred 
 
         while he was using a rope to pull a lookout to the top of a 
 
         building.
 
         
 
              2.  At the time of injury, claimant was working as a tuck 
 
         pointer.
 
         
 
              3.  Following the injury of April 1, 1982, claimant was off 
 
         work for a period of time which has not been precisely determined 
 
         from the record made, but which appears to have been 
 
         approximately 11 days.
 
         
 
              4.  Following the injury of April 1, 1982, claimant was able 
 
         to resume the duties of employment, but he experienced some 
 
         difficulties in doing so.
 
         
 
              5.  Following the injury of July 26, 1982, claimant has not 
 
         returned to any gainful employment of any type.
 
         
 
              6.  The precise physiological damage or injury which 
 
         claimant sustained in either of the two incidents that occurred 
 
         in 1982 has not been determined.  Claimant experiences pain and 
 
         numbness in his right arm.  He has suffered a severe loss of the 
 
         ability to use his right hand.  Claimant also has pain in his 
 
         right shoulder region and a sensory impairment on the right upper 
 
         portion of the trunk of his body.
 
         
 
              7.  It is found to be probable that there is some 
 
         undiagnosed physiological condition in the anatomical region of 
 
         claimant's cervical spine, brachial plexus and right shoulder 
 
         which is responsible for the symptoms that he experiences in his 
 
         right arm.
 
         
 
              8.  It is further found that the injuries claimant sustained 
 
         on April 1, 1982, and/or July 26, 1982, were substantial factors 
 
         in producing that physiological injury.
 
         
 
              9.  It is likely that there is some emotional component to 
 
         claimant's current physical condition.
 
         
 
              10.  The injuries sustained in either of the incidents in 
 
         1982 are not probable source of the problems of which claimant 
 
         complains regarding his lower extremities except to the extent 
 
         that the problems may be psychologically induced.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              11.  Since the injury of July 26, 1982, Wayne Holliday has 
 
         not returned to gainful employment and has not been medically 
 
         capable of returning to gainful employment substantially similar 
 
         to that in which he was engaged at the time of injury.
 
         
 
              12.  Claimant is found to have reached the point that it was 
 
         medically indicated that further significant improvement from the 
 
         injury was not anticipated on August 10, 1983, the date he 
 
         completed his evaluation at the Mercy Hospital Medical 
 
         Occupational Evaluation Center.  Subsequent to that date, he has 
 
         not been under any active recuperative treatment.
 
         
 
              13.  Claimant does not have sufficient residual capacity to 
 
         be self-supporting.
 
         
 
              14.  Claimant does not have sufficient physical capacity to 
 
         enable him to be employed in any well-known branch of the labor 
 
         market in the geographic region of his residence, or elsewhere.
 
         
 
              15.  At the time of hearing claimant was 45 years old and 
 
         married.
 
         
 
              16.  During the 13 weeks prior to July 26, 1982, claimant 
 
         earned $4,966.50.
 
         
 
              17.  The medical care claimant has received from Darwin B. 
 
         Jack, M.D., is reasonable treatment for the injuries he sustained 
 
         on July 26, 1982, and the charges made are fair and reasonable.
 
         
 
              18.  Wayne Holliday has a restricted range of motion in his 
 
         cervical spine and severely limited use of his right upper 
 
         extremity which have resulted from the injuries sustained on July 
 
         26, 1982.  He is in constant pain which is of a level that is 
 
         mentally distracting.
 
         
 
              19.  Claimant dropped out of high school during the twelfth 
 
         grade and has no further formal education.
 
         
 
              20.  Claimant's entire work experience has involved moderate 
 
         or heavy physical labor and proficient use of both upper 
 
         extremities.
 
         
 
              21.  Claimant is reasonable intelligent and a 
 
         highly-motivated individual who would prefer to be gainfully 
 
         employed rather than afflicted with his present state of 
 
         disability. Claimant is emotionally stable, but there may be some 
 
         psychological component to his present condition which has arisen 
 
         from the physical injuries that he sustained.
 
         
 
              22.  As between the incidents of April 1, 1982, and July 26, 
 
         1982, the latter is found to be the primary source of.the 
 
         disability with which claimant is currently afflicted.
 
         
 
              23.  The occupation of tuck pointer is not exclusively 
 
         seasonal.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              This agency has jurisdiction of the subject matter of this 
 
         proceeding and its parties.
 
         
 
              The injuries claimant sustained on April 1, 1982, and July 
 
         26, 1982, arose out of and in the course of his employment with 
 
         Spencer Company.
 
              
 
              Wayne Holliday is permanently and totally disabled within 
 
         the meaning of section 85.34(3) of the Code.
 
         
 
              The injuries claimant sustained on April 1, 1982, and July 
 
         26, 1982, are a proximate cause of his current permanent and 
 
         total disability.
 
         
 
              Claimant's rate of compensation is determined under section 
 
         85.36(6) and is found to be $235.70 per week.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant weekly compensation for 
 
         permanent total disability at the rate of two hundred thirty-five 
 
         and 70/100 dollars ($235.70) per week commencing July 26, 1982, 
 
         and continuing thereafter, for so long as claimant remains 
 
         totally disabled.
 
         
 
              That defendants pay claimant's expenses with Darwin B. Jack, 
 
         M.D., in the amount of one hundred fifty and 00/100 dollars 
 
         ($150.00).
 
         
 
              That defendants pay the costs of this action 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 10th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                   DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To;
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         616 Lafayette St.
 
         P.O. Box 2634
 
         Waterloo, Iowa  50704
 
         
 
         Mr. Jeffrey J. Greenwood
 
         Attorney at Law
 
         528 W. 4th St.
 
         P.O. Box 1200
 
         Waterloo, Iowa  50704
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1800 - 1804 - 3002
 
                                            Filed May 10, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE V. HOLLIDAY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 711863
 
         SPENCER COMPANY,
 
                                                     A P P E A L
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier
 
              Defendants.
 
         
 
         
 
         1800, 1804, 3002
 
         
 
              Claimant, a tuckpointer was found to be totally disabled as 
 
         a result of a work related injury.  In addition, it was found 
 
         that claimant's occupation as a tuckpoint was not exclusively 
 
         seasonal.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE V. HOLLIDAY,
 
         
 
              Claimant,
 
                                                      File No. 711863
 
         VS.
 
                                                   A R B I T R A T I O N
 
         SPENCER COMPANY,
 
                                                     D E C I S I O N
 
              Employer,
 
         
 
         and                                             F I L E D
 
         
 
         LIBERTY MUTUAL INSURANCE                       FEB 18 1988
 
         COMPANY,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Wayne V. 
 
         Holliday, claimant, against Spencer Company, his former employer 
 
         and Liberty Mutual Insurance Company, the employer's insurance 
 
         carrier.  The case was heard at Waterloo, Iowa on July 30, 1987 
 
         and was fully submitted upon conclusion of the hearing.  The 
 
         record in this proceeding consists of testimony from Wayne V. 
 
         Holliday, William F. Bower and Patricia Holliday.  The record 
 
         also contains jointly offered exhibits 1 through 13.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties are determination of 
 
         whether a causal connection exists between the injury that 
 
         claimant sustained on July 26, 1982 and any permanent disability 
 
         with which he is afflicted.  Also at issue is the nature and 
 
         extent of permanent disability.  Claimant urges that he is 
 
         permanently and totally disabled and that the odd-lot doctrine 
 
         should be applied.  Claimant urges that his healing period runs 
 
         from August 3, 1982 through February 14, 1984.  The rate of 
 
         compensation is at issue with the employer contending that 
 
         claimant was a seasonal employee whose compensation should be 
 
         determined under section 85.36(9) while claimant urges that the 
 
         rate of compensation should be determined under section 85.36(6). 
 
         Assessment of costs is also at issue with defendants seeking to 
 
         recover $185.15 for reporting fees for the deposition of Dr. 
 
         VanGilder and $150.00 for an expert witness fee for Dr. 
 
         VanGilder, totaling $335.15.  It was stipulated that claimant 
 
         sustained an injury which arose out of and in the course of his 
 
         employment.  It was stipulated that defendants had paid claimant 
 
                                                
 
                                                         
 
         180.286 weeks of compensation at the rate of $262.58 prior to the 
 
         date of hearing.
 
         
 
                              SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
         All evidence received at the hearing was considered when deciding 
 
         the case even though it may not necessarily be referred to in 
 
         this decision.  The proposed findings and conclusions filed by 
 
         the parties were reviewed and are to some extent incorporated 
 
         herein with modifications deemed appropriate by the undersigned.
 
         
 
              Wayne V. Holliday is the claimant in this case.  Patricia 
 
         Holliday is his spouse.  William Bower is a former tuck pointer 
 
         who lives in the Vinton, Iowa area.  The summary of evidence 
 
         regarding the general nature of the business of tuck pointing as 
 
         is hereinafter made is based upon the testimony presented by 
 
         Wayne Holliday and William Bower.  The statements regarding 
 
         claimant's abilities, complaints and restrictions are based upon 
 
         the testimony from claimant and his wife.
 
         
 
              Wayne V. Holliday is a 45-year-old male whose birth date is 
 
         February 18, 1942.  He quit high school during the twelfth grade. 
 
         He was in the Army reserve being on active duty in 1960 and was 
 
         recalled to service in 1962.  He received an honorable discharge. 
 
         He had no further formal vocational, technical or academic 
 
         training.  His only training was on-the-job.
 
         
 
              Claimant worked approximately seven months for U. S. Steel 
 
         Corporation, starting as a welder's helper and, by the time he 
 
         left employment with U. S. Steel, he was a welder.
 
         
 
              Claimant began tuck pointing in 1962 and worked basically as 
 
         a tuck pointer from 1962 until 1982 when he was injured.  The 
 
         occupation of being a tuck pointer was completely explained at 
 
         the time of the hearing with pictures of the equipment used and a 
 
         description of the activities, skills and exertion of being a 
 
         tuck pointer (exhibit 7).
 
         
 
              Tuck pointers primarily repair the mortared joints between 
 
         bricks of a brick building that have deteriorated due to weather. 
 
         A tuck pointer often works from scaffolding which is attached to 
 
         the roof of the building.  This is done in one of two ways:  if 
 
         the building has a ledge overhang, hooks are attached to the roof 
 
         of the building and ropes are dropped from the hooks and attached 
 
         to the scaffolding; if the building does not have a ledge on 
 
         which to fasten the hooks, then the job becomes much more 
 
         difficult.  It is necessary then to use 12- to 20-foot 4 x 6 
 
         pieces of lumber, referred to as lookouts, which are placed on 
 
         the roof and extended slightly over the roof.  On the end of the 
 
         timber, away from the edge of the building, sandbags are placed 
 
         to counter balance the weight of the scaffolding.
 
         
 
              In order to get the equipment to the roof of the building, 
 
         it is necessary to carry it to the roof of the building.  This 
 
                                                
 
                                                         
 
         would be done from within the building, if possible.  If not, 
 
         equipment would have to be moved up on the outside of the 
 
         building.  Ropes would be attached to the equipment so the 
 
         individuals on the roof could pull the equipment up to the roof.  
 
         The rope could weigh in excess of 100 pounds.  The lookouts could 
 
         weigh over 100 pounds. The individual on the roof must pull the 
 
         equipment to the roof manually.
 
         
 
              The job of tuck pointing begins with grinding out the 
 
         deteriorated mortar joint with an electric or air powered grinder 
 
         which could weigh approximately 30 pounds.  Pictures of the 
 
         grinders were entered into evidence and an air and electric 
 
         grinder were displayed (exhibit 12-4 and 12-5).  The tuck pointer 
 
         is required to put pressure on the grinder to clean the joints.  
 
         It is necessary to hold the grinder to ensure that it does not 
 
         fall out of the hands of the worker.  Both claimant and the 
 
         witness, William Bower, testified to the stress upon the body from 
 
         this type of work.  A tuck pointer is often required to grind for 
 
         an eight- or ten-hour day.
 
         
 
              After the grinding has been completed, it is sometimes 
 
         necessary to sand blast the building.  A compressor is used to 
 
         create high pressure that blows silica sand against the building 
 
         to clean the bricks.  A detailed description of this procedure 
 
         was given.  Pictures of the equipment used in the procedure, 
 
         together with actual lengths of sand blast hose and a nozzle and 
 
         hood were displayed (exhibits 12-1, 12-7, and 12-8).  Tuck 
 
         pointers may sand blast for entire days, resulting in fatigue as 
 
         described by the witnesses.
 
         
 
              After the building is sand blasted the actual tuck pointing 
 
         begins.  Mortar is mixed on the ground and sent up to the tuck 
 
         pointer on the scaffolding.  The tuck pointer puts from six to 
 
         eight pounds of new mortar on his hock at a time and, using a 
 
         tuck pointing tool, which was displayed (exhibits 12-6, 12-10, 
 
         and 12-11), presses the mortar into the joints between the 
 
         bricks.  While this is not as heavy work as sand blasting and 
 
         grinding, it requires constant bending, twisting and turning as 
 
         described by the witnesses.
 
         
 
              Following the tuck pointing, the building is acid washed 
 
         which was described by the witnesses as easy work and may then be 
 
         waterproofed.
 
         
 
              Other than for a period in the 1970's when claimant worked 
 
         as a structural steel welder in Sidney, Nebraska, claimant worked 
 
         as a tuck pointer constantly from 1962 to 1982.
 
         
 
              Before working as a tuck pointer, the only illness or injury 
 
         experienced by claimant that appeared serious was when he was 12 
 
         years old and was hit by a truck which produced a broken leg and 
 
         pelvis and brain concussion.  Claimant recovered completely from 
 
         this injury and residuals of the injury apparently did not cause 
 
         him any problems.
 
         
 
                                                
 
                                                         
 
              While working as a tuck pointer in 1977 for Spencer Company, 
 
         claimant suffered a very serious accident.  On October 21, 1977, 
 
         he and the owner of Spencer Company had delivered a crane to 
 
         their next job site on a Friday evening.  While returning from 
 
         this task, claimant was involved in an accident with his pickup 
 
         truck which resulted in a fracture of two vertebrae in his neck.  
 
         He was cared for by John C. VanGilder, M.D.
 
         
 
              Dr. VanGilder performed a triple fusion on claimant.  He 
 
         remained under Dr. VanGilder's care until May 1, 1977 when he 
 
         returned to work as a tuck pointer with no restrictions.
 
         
 
              Claimant did not put in a claim for workers' compensation 
 
         nor did he attempt to excuse himself from any type of duty 
 
         because of restrictions or disabilities.
 
         
 
              Claimant admitted that he is an alcoholic and testified 
 
         that, up until August of 1979, he was drinking rather heavily.  
 
         He entered into the Powell Treatment Center at a hospital in Des 
 
         Moines.  Claimant testified that he had not consumed alcohol 
 
         since the date of entering the treatment at Powell.  Claimant 
 
         recently quit smoking.
 
         
 
              Claimant continued working at Spencer Company without 
 
         incident until April 1, 1982.  At that time, while working in 
 
               
 
                                                
 
                                                         
 
         southern Iowa, claimant was unhooking a compressor from the rear 
 
         of a truck.  A picture of the compressor was entered into 
 
         evidence (exhibits 12-2 and 12-3).  This compressor is mounted on 
 
         a trailer that fastens behind a truck.  It was used to compress 
 
         air for the sand blasting operation.
 
         
 
              Claimant had unfastened the compressor from the truck.  He 
 
         had his back to the compressor and was lifting on the tongue 
 
         pushing the compressor backwards away from the truck.  Claimant 
 
         stepped into a small hole, lost his balance and fell.  The tongue 
 
         of the trailer fell across his chest causing pain in his upper 
 
         back.  He attempted to complete work, but because of his injury, 
 
         returned to Oelwein where he was treated by Darwin B. Jack, M.D. 
 
         He was off work for approximately 11 days.  Claimant returned to 
 
         work without restriction of his activities.
 
         
 
              Claimant stated that the residuals of that injury continued 
 
         to bother him during that summer and to progressively worsen, but 
 
         he continued to do his job until July 26, 1982.
 
         
 
              On that day, he was working in Estherville, Iowa on a 
 
         hospital.  Claimant had gone there with two other individuals who 
 
         are no longer in Iowa and are unavailable for testimony.  When 
 
         claimant arrived at the scene, he found that the majority of the 
 
         building did have an overhang and could be done with hooks, but 
 
         one wing of the hospital did not have an overhang so he had to 
 
         find lookouts in the area.  He was able to rent lookouts from a 
 
         local lumber yard.
 
         
 
              One of the individuals remained on the ground while claimant 
 
         carried the rope to the roof from an inside stairway with the 
 
         other individual.  Claimant was pulling up one of the lookouts 
 
         with the rope, hand over hand.  He got the lookout about halfway 
 
         up and felt a severe pain in the cervical area of his spine which 
 
         caused what he described as an electrical shock to go down both 
 
         of his upper extremities.  He immediately let go of the rope, 
 
         dropping the lookout.  For the balance of the day, he was unable 
 
         to work and only supervised the work of the other employees.  On 
 
         the next day, he went home because of the pain in his back and 
 
         right arm.
 
         
 
              Claimant was treated by Dr. Jack, was seen by David F. Poe, 
 
         M.D., and was sent to Dr. VanGilder.  Claimant was treated by Dr. 
 
         VanGilder, and was examined by Arnold E. Delbridge, M.D., and by 
 
         Winthrop S. Risk, M.D.  Claimant was evaluated at the Medical 
 
         Occupational Evaluation Center at Mercy Hospital in Des Moines.
 
         
 
              Claimant was found to be totally disabled in accordance with 
 
         the provisions of the Social Security Act and is receiving total 
 
         disability benefits under the provisions of that Act.  Claimant 
 
         stated that his weight has gone from approximately 155 pounds 
 
         down to approximately 120 pounds.  He cannot mow the lawn or 
 
         vacuum the house without his back hurting.  He does help with 
 
         some household work such as washing dishes, etc., but can do no 
 
         stressful work of any type.  He is severely limited in the 
 
                                                
 
                                                         
 
         periods of time that he can stand and sit and has difficulty 
 
         riding in cars.  Claimant has difficulty sleeping at night.
 
         
 
              Claimant's day-to-day medical care has been provided by Dr. 
 
         Jack who monitors claimant's condition with monthly evaluations 
 
         (exhibits 1-2 and 1-8).  Dr. Jack has consistently indicated that 
 
         he considers claimant to be totally disabled (exhibits 1-1 and 
 
         1-16).  His notes from 1982 are found in exhibit 1 at pages 
 
         129-132.
 
         
 
              The neurosurgeon who treated claimant for the 1977 accident 
 
         and for his current problems is Dr. VanGilder.  Dr. VanGilder has 
 
         diagnosed claimant's condition as a chronic polyneuropathy 
 
         (exhibit 10, pages 21, 24, 31 and 45).  A battery of diagnostic 
 
         tests has failed to identify the etiology of claimant's problems. 
 
         The only definite abnormality consistently found is abnormal 
 
         EMG's of the right arm.  Reflex changes and some of claimant's 
 
         symptoms have been transitory (exhibit 10, pages 10-13, 16, 17, 
 
         20-25, 27, 29 and 31).  Claimant has consistently exhibited 
 
         diffuse loss of sensation of the right arm, but has not exhibited 
 
         atrophy of the arm (exhibit 10, pages 10, 11, 24 and 30).  The 
 
         undersigned was unable to observe any apparent atrophy in 
 
         claimant's arm at hearing.
 
         
 
              Dr. VanGilder rated claimant's right arm as being totally 
 
         disabled and equated it to a 20% disability of the body as a 
 
         whole (exhibit 10, page 28).  He felt that the 1977 accident had 
 
         not produced any permanent impairment (exhibit 10, page 43).
 
         
 
              Dr. VanGilder has consistently stated that the cause of 
 
         claimant's problems is unclear (exhibit 10, pages 20, 21, 23, 31 
 
         and 32).  He has ruled out the possibilities of the problems 
 
         relating to the 1977 injury, a herniated disc, tumor or other 
 
         mechanical factors (exhibit 10, pages 10-13, 35 and 44).  An 
 
         alcoholic neuropathy was indicated to be a possibility (exhibit 
 
         10, pages 19, 20, 27, 33, 34 and 37).  Dr. VanGilder stated that 
 
         claimant exhibited indications of a systemic disease which 
 
         affects more than one nerve (exhibit 10, pages 18 and 20) and 
 
         that he would expect that type of problem to be diffuse, but that 
 
         claimant's problem seems limited to the right arm (exhibit 10, 
 
         page 37).
 
         
 
              Dr. VanGilder testified extensively with regard to the 
 
         effect of the 1982 accident.  On page 36, the doctor, following a 
 
         question from claimant's counsel assuming facts in the record, 
 
         responded as follows:
 
         
 
              A.  I think I would rather answer the question by saying 
 
              that with his history of trauma and the onset of his 
 
              symptoms, that I felt the symptoms were secondary to the 
 
              trauma.
 
         
 
              On pages 40 and 41 of his deposition, Dr. VanGilder stated 
 
         the following:
 
         
 
                                                
 
                                                         
 
              Q.  So if I understand your etiology here, you indicate that 
 
              he received these traumatic injuries and whatever has 
 
              happened to him, that started the process in motion.
 
         
 
              A.  Yes.
 
         
 
              Q.  And whether or not it would have happened to him in the 
 
              future or not, it is very difficult if not impossible for 
 
              you to tell.
 
         
 
              A.  I can't say.
 
         
 
              Q.  But be that as it may, what started this whole process 
 
              in motion was those traumatic injuries.
 
         
 
              A.  That's when he became symptomatic and I presume so.
 
         
 
              At pages 32 through 34, Dr. VanGilder stated:
 
         
 
              Q.   Okay.  Early on I had touched on the possibility of 
 
              whether his current condition was caused by an injury that 
 
              he had described to you back in '82 or whatever.  What's 
 
              your feeling about that?
 
         
 
              A.  Well, it started with the injury, but I don't think the 
 
              injury was of the magnitude that persisted for the period of 
 
              time that it has.  Plus, we know that he had progression of 
 
              his symptomatology somewhere in the middle of this, his 
 
              change in reflexes.  And this would have been two years 
 
              after an injury.  So I don't -- I don't think that's the 
 
              primary cause of it, no.
 
         
 
              Q.  Okay.
 
         
 
              A.  It may have started the symptoms off.
 
         
 
              Q.  What would it be about an injury that would get it to 
 
              start those symptoms?
 
         
 
              A.  Well, I think it would stretch the nerves and cause 
 
              initial irritation in them.  By stretching, what I'm saying 
 
              is, he said something struck him on the shoulder at the 
 
              time. And he probably had some trauma to a nerve.  But I 
 
              don't think that would cause a progressive sort of 
 
              phenomenon to occur.
 
         
 
              Q.  Okay.
 
         
 
              A.  Several months or years after the injury.
 
         
 
              Q.  Is this the type of thing that you would expect to see 
 
              in Mr. Holliday today absent that injury?
 
         
 
              A.  Is what now, I missed the question?
 
         
 
                                                
 
                                                         
 
              Q.  Absent the injury, is this the type of thing that Mr. 
 
              Holliday would have expected to incur during his lifetime 
 
              anyway?
 
         
 
              A.  I don't know.
 
         
 
              Q.  Okay.
 
         
 
              A.  Possibly.
 
         
 
              Q.  Well, I was trying to figure out from those possible or 
 
              likely causes that you had, if he was likely to wind up in 
 
              the same position anyway?
 
         
 
              A.  I think it's very probable he would, but I can't answer 
 
              that.  I don't know.
 
         
 
              Dr. VanGilder clearly indicated that claimant's leg 
 
         complaints were not related to the 1982 traumas (exhibit 10, page 
 
         27).
 
         
 
              Claimant was examined by Winthrop S. Risk, M.D., a 
 
         neurologist in Cedar Rapids, Iowa.  His reports are located in 
 
         exhibit 1, pages 49-52 and 64-67.  In his report of October 31, 
 
         1983, Dr. Risk indicates that claimant's problem resulted from 
 
         the traumatic injuries described in this discussion.  In that 
 
         report he stated the following:
 
         
 
              In addition to the neck pain which is associated with the 
 
              severe limitation of movement of the neck in all directions 
 
              and in addition to the upper thoracic and arm pain, he 
 
              experiences pain in his right hip and entire right lower 
 
              limb.
 
                    
 
                                                         
 
         
 
              He assessed claimant's condition as follows:
 
         
 
              Wayne Holliday presents with right sided sensory motor 
 
              impairment, neck pain, back pain, right upper limb and 
 
              thoracic, and right lower limb pains; all fitting a pattern 
 
              of chronic post-traumatic pain, with sensory motor 
 
              impairment.  As indicated in the examination above, there is 
 
              no sign of disuse atrophy of the right limbs.  Tendon 
 
              reflexes are generally symmetric.  Fluency of movement 
 
              improved with distraction and repetition.  Most probably the 
 
              patient suffers from post-traumatic syndrome, with 
 
              somatization.  The present degree of impairment, in terms of 
 
              his complaints of pain and limitation of movement, appear 
 
              out of proportion to the actual physical findings on 
 
              examination. An associated depressive reaction is present.
 
         
 
              He further stated in that report:
 
         
 
              Given the duration of the patient's present problems, 
 
              prognosis for recovery to a level that would permit the 
 
              patient to return to work is guarded.
 
         
 
         (Exhibit 1-52).
 
         
 
              On July 9, 1984, Dr. Risk again examined claimant and 
 
         reported:
 
         
 
              Assessment - Wayne Holliday presents with sensorimotor 
 
              impairment of the right arm and leg and symmetrical weakness 
 
              in both lower limbs.  In addition, he has immobility of the 
 
              neck.  At the present time it is not possible to demonstrate 
 
              any objective finding that would relate these impairments to 
 
              the accident on April 1, 1982.
 
         
 
              On the other hand, the patient exhibits numerous findings on 
 
              his examination that would fit some of the categories 
 
              described in the AMA Guides to the Evaluation of Permanent 
 
              Impairment, copyright 1971 in Chapter 13 under mental 
 
              illnesses.  These findings would fit with a diagnosis of 
 
              posttraumatic syndrome.  They would be rated class III 
 
              (impairment of the whole man 50 to 95 percent), and would 
 
              fit Category 3F, conversion or hysterical reaction.  Given 
 
              the fact that the patient has been off work for two years as 
 
              a result of his reported symptoms, impairment rating would 
 
              be in the higher range of impairment, 80 percent or 
 
              greater.
 
         
 
              It is not possible to assign permanent impairment rating in 
 
              this circumstance, because by the AMA criteria, the term 
 
              "impairment" refers to a condition which results in a 
 
              substantial loss of function despite treatment, and no 
 
              efforts have been made to treat the patient's psychological 
 
              component of his illness.  Furthermore, a disability rating 
 
              cannot be established since the AMA guide does not provide 
 
                                                
 
                                                         
 
                   in the case of such psychiatric illness a conversion from 
 
              impairment to disability.
 
         
 
              Finally, with regard to any actual organic injury from the 
 
              patient's accident, as previously stated the major symptom 
 
              has been pain.  It is impossible to witness pain or measure 
 
              it.  It is certainly conceivable that had the injury 
 
              occurred as the patient described, he may indeed continue to 
 
              experience pain.  In this regard, I would defer to Dr. 
 
              VanGilder's opinion that the patient has an AMA disability 
 
              based on considerations of the upper right limb of 20 
 
              percent.  In addition, the patient's neck is nearly 
 
              completely immobilized, which would carry a disability 
 
              rating of 20 percent, for a combined rating of 36 percent.  
 
              However, it should be emphasized again there are no 
 
              objective criteria supporting these conclusions other than 
 
              the patient's persistent complaint of pain and his chronic 
 
              impairment that has prevented him from returning to work for 
 
              two years.
 
         
 
              Psychiatric evaluation by a psychiatrist well experienced in 
 
              posttraumatic syndrome would be appropriate in an effort to 
 
              get a more quantitative measure of disability related to the 
 
              patient's psychological component of his illness.
 
         
 
         (Exhibit 1-67).
 
         
 
              Claimant was also examined by Arnold Delbridge, M.D., on two 
 
         occasions.  The first examination was done in 1983 for Social 
 
         Security purposes.  The report following that workup is exhibit 
 
         3. The second examination was done in 1986.  The doctor's 
 
         deposition is exhibit 9.
 
         
 
              Dr. Delbridge found little overall change between the two 
 
         examinations (exhibit 9, pages 11-15).  He found claimant to have 
 
         markedly limited range of motion in his neck, back and right 
 
         shoulder.  He characterized claimant's right hand as virtually 
 
         useless.  He found the intrinsic muscles of the right hand to be 
 
         atrophied (exhibit 9, pages 7-10).  He estimated permanent 
 
         impairment on pages 19-22 of his deposition.  He indicated, based 
 
         upon AMA guides, that there was a seven percent whole man 
 
         impairment resulting from the accident of 1977.  Dr. Delbridge 
 
         agreed with Dr. Risk that claimant had suffered a 20% impairment 
 
         due to the limitations of his cervical spine.  He then estimated 
 
         a 70% impairment of his right upper extremity which converted to 
 
         42% of the body as a whole.  He then combined 13% from his neck 
 
         (20% minus seven percent preexisting) and 42% for his right upper 
 
         extremity giving a combined total of 50% impairment of his body 
 
         as a whole secondary to his accidents of 1982.
 
         
 
              Dr. Delbridge did not feel that claimant's back problems 
 
         were due to the 1982 accident (exhibit 9, pages 21, 28 and 29).  
 
         He discounted alcohol as a factor in claimant's problems (exhibit 
 
         9, pages 26, 34 and 35).
 
         
 
                                                
 
                                                         
 
              Regarding claimant's ability to be employed, Dr. Delbridge 
 
         stated:
 
         
 
              As far as this patient's capacity of work, it is at this 
 
              time virtually nill [sic].  He cannot lift anything at all 
 
              because he cannot bend over to do it and when he squats to 
 
              lift he is very weak and he can barely support his body 
 
              weight back up to a standing position.  Repetitively lifting 
 
              is completely out of the question.  Standing would give him 
 
              difficulty very soon after beginning the activity.  Sitting 
 
              is possible for short periods of time but once again he is 
 
              very limited because of his limited motion as far as turning 
 
              or adjusting himself to do tasks is concerned.
 
         
 
              In brief, what we have here is a gentleman who is emaciated, 
 
              has lost thirty pounds over the past few months, is very 
 
              weak, cannot use his right upper extremity for any 
 
              meaningful activity and has a very very limited range of 
 
              motion of both his neck and his lower back.
 
         
 
         (Exhibit 3).
 
         
 
              At page 16 of his deposition, which is exhibit 9, Dr. 
 
         Delbridge stated the following:
 
         
 
              Q.  And what conclusions did you come to, to that, regarding 
 
              the social security claim?
 
         
 
              A.  The conclusion that I came to in his social security 
 
              claim was that in my opinion at this time this patient is 
 
              not suitable for any type of work whatsoever.
 
         
 
              The doctor indicated that claimant's activities were 
 
         considerably limited due to the 1982 injury (exhibit 9, pages 
 
         24-26).
 
         
 
              Identifying the situs and cause of claimant's injury was 
 
         thoroughly discussed at pages 30-34 of exhibit 9:
 
         
 
              Q.  And you are talking about that this is involving the 
 
              shoulder, as getting into the body side as well as the arm?
 
         
 
              A.  Yes.  This is upper extremity, and I suspect that some 
 
              of this is rotator cuff, and there you might be getting into 
 
              the body as a whole.  I converted it to body as a whole to 
 
              give an illustration of how compromised he was on a total 
 
              body basis.
 
         
 
              ...
 
         
 
              A.  I didn't find any tears necessarily of the rotator cuff, 
 
              so while I did convert it, really this is an upper extremity 
 
              type of difficulty with the exception of the sensation, 
 
              which might be attributable to the neurological function, of 
 
              course coming from the cervical spine area.  But there 
 
                                                
 
                                                         
 
                   really wasn't any -- but that was really the only thing that 
 
              I felt it could be attributed to, other than the extremity 
 
              itself.
 
         
 
              ...
 
         
 
              Q.  Do you agree or disagree with Dr. Van Gilder that the 
 
              problems that Mr. Holliday is having with his upper right 
 
              extremity are of unknown etiology?
 
         
 
              A.  Well, there is no real ready and pat answers regarding 
 
              his upper extremity, because Dr. Risk speculates on post 
 
              injury trauma -- post trauma syndrome and proposes a quite 
 
              high impairment.  Dr. Van Gilder talks about an obscure 
 
              neuropathy and talks about a lesser impairment.  The people 
 
              at Des Moines, one of the people that saw him there didn't 
 
              feel that this was alcohol related.  His EMG was pretty 
 
              normal except for his ulnar nerve.
 
         
 
              So I didn't really believe that he was an alcoholic 
 
              neuropathy.  And I don't really think Dr. Van Gilder did 
 
              either.  The way I see Mr  Holliday is that Mr. Holliday is 
 
              somewhat like a reflex sympathetic dystrophy of the upper 
 
              extremity.  He had an injury.  He had immobility.  He had 
 
              pain.  He had more immobility.  He had more pain.  He went 
 
              into a spiral and essentially ended up with a useless 
 
              extremity.  I see Mr. Holliday as more of a pain syndrome, 
 
              disuse syndrome, than a neuropathy or an alcoholic 
 
              neuropathy.
 
         
 
              Q.  So that are you saying maybe because it hurts he's not 
 
              used it, and his hand has deteriorated?
 
         
 
                       
 
                                                         
 
              A.  Yes.  Indeed his whole body has.  I mean, he's lost -- 
 
              when I saw him he had lost 30 pounds off a hundred and fifty 
 
              pound frame.
 
         
 
              Claimant was evaluated at the Mercy Hospital Medical 
 
         Occupational Evaluation Center.  He was seen by Robert C. Jones, 
 
         M.D., a neurosurgeon.  Dr. Jones diagnosed claimant's condition 
 
         as a strain of neck muscles, right tardy ulnar nerve palsy and 
 
         possibly a stretched brachial plexus.  Dr. Jones did not feel 
 
         that claimant's problem was due to alcohol or to the 1977 
 
         accident (exhibit 1-168, 1-169 and 1-171).
 
         
 
              Claimant was also evaluated by Todd Hines, Ph.D., a 
 
         psychologist.  Hines indicated that claimant exhibited a modicum 
 
         of reactive depression of a magnitude that was not sufficient to 
 
         warrant treatment (exhibit 1-170, 1-172 and 1-173).
 
         
 
              In concluding the evaluation, it was determined that 
 
         claimant had a five percent permanent impairment of the body as a 
 
         whole due to a stretch injury to the brachial plexus, that his 
 
         problems had no relation to alcohol abuse and that they did 
 
         relate to the injuries he sustained in 1982 (exhibit 1-186, 
 
         1-187, 1-191 and 1-192).  It was indicated that there were 
 
         definite limits on claimant's ability to return to work (exhibit 
 
         1-191 and 1-192).
 
         
 
              Exhibit 1-40 indicates that, at the time of claimant's 1977 
 
         accident, prior to treatment, he exhibited a decrease in 
 
         sensation and strength in his right upper extremity.
 
         
 
              On September 15, 1982, claimant was examined by David F. 
 
         Poe, M.D.  Dr. Poe's report was issued prior to the time most of 
 
         the diagnostic tests which are now available in this case had 
 
         been administered.  It is not particularly definitive of the 
 
         nature or cause of claimant's problems.
 
         
 
              Claimant was seen and evaluated by two vocational 
 
         rehabilitation consultants, namely, G. Brian Paprocki and Clark H. 
 
         Williams.  The report from Mr. Williams, exhibit 5, is incomplete 
 
         because it does not deal with claimant's physical capabilities and 
 
         restrictions.  Paprocki indicated that claimant would seem to have 
 
         the intellectual ability to complete vocational retraining and the 
 
         report indicates that claimant complained of pain which restricted 
 
         his activities.  Paprocki concluded that claimant's level of daily 
 
         activities does not approximate even the least physically 
 
         demanding category of employment, namely, sedentary employment.  
 
         He felt that claimant had no transferable skills that were within 
 
         the limits of his residual functional capacity.  Paprocki 
 
         indicated that retraining would be hampered due to the loss of 
 
         fine motor control in claimant's right hand.  He felt that the 
 
         chances of claimant ever holding competitive employment of any 
 
         type were nil (exhibit 4).
 
         
 
              The evidence in the record regarding the seasons during 
 
         which tuck pointing is performed was provided by claimant and 
 
                                                
 
                                                         
 
         William Bower.  They stated that most tuck pointing in the 
 
         Midwest is done during the summer months, but that, even during 
 
         the winter, there is tuck pointing work that is done on interior 
 
         walls.  They indicated that it is not uncommon for a tuck 
 
         pointing contractor to arrange work in the southern part of the 
 
         country in order to operate through the entire year.
 
         
 
              Exhibit 11 shows that claimant earned $4,966.50 during the 
 
         13 weeks preceding the week which included July 26, 1982.  This 
 
         computes to a gross average weekly wage of $382.04.  According to 
 
         claimant he was married, but had no dependent children at the 
 
         time of injury.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 26, 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).
 
         
 
              Dr. Delbridge and the physicians at the Mercy Medical 
 
         Occupational Evaluation Center found claimant's complaints to be 
 
         related to the 1982 trauma.  Drs. Risk and VanGilder were 
 
         reluctant to make such a cause and effect relationship.  They did 
 
         not, however, indicate that they were of the definite opinion 
 
         that a causal relationship was absent.  A close examination of 
 
         the evidence from Drs. Risk and VanGilder shows that they have 
 
         found no definite, objective basis for concluding that the trauma 
 
         and claimant's current problems are related.
 
         
 
              An expert may testify to the possibility of causal 
 
         connection, but a possibility, standing alone, is insufficient.  
 
         A probability is necessary to generate a question of fact and 
 
         sustain an award.  Burt v. John Deere Waterloo Tractor Works, 
 
         Supra.  The Iowa Supreme Court, in Becker v. D & E Distributing 
 
         Co., 247 N.W.2d 727 (Iowa 1976) discussed the law on this problem 
 
                                                
 
                                                         
 
         with great clarity.  Briefly summarized, the Court indicated that 
 
         an expert witness may testify to the possibility, probability or 
 
         actuality of the causal connection between a claimant's 
 
         employment and his injury.  If the expert testimony shows 
 
         probability or actuality of causal connection, this will suffice 
 
         to raise the question of fact for the trier of fact and, if 
 
         accepted, will support an award.  If the opinion shows a 
 
         possibility of causal connection, it must be buttressed with 
 
         other evidence such as lay testimony that the described condition 
 
         of which complaint is made did not exist before the occurrence of 
 
         those facts which are alleged to be the cause.
 
         
 
              This case presents a lack of consensus from the medical 
 
         practitioners regarding the cause of claimant's complaints, other 
 
         than an apparent consensus that the precise physiological cause 
 
         is unknown.  A number of causes have been suggested.  Some have 
 
         been discounted.  It is, of course, possible that more than one 
 
         causative factor is involved in this case.  One thing that is 
 
         absolutely clear, however, is that Wayne Holliday was able to 
 
         work as a tuck pointer without any complaint or physical 
 
         restriction prior to April of 1982.  While he may have had some 
 
         restrictions and complaints between April and July of 1982, he 
 
         was still able to work in that quite strenuous occupation.  After 
 
         the incident of July 26, 1982, he was unable to function as a 
 
         tuck pointer or to engage in hardly any other activity.  The 
 
         abrupt change in claimant's physical condition which followed the 
 
         July 26, 1982 injury is found to be sufficient to buttress the 
 
         medical opinions and to carry the burden of proving that the 
 
         injury of July 26, 1982 is a substantial factor in producing his 
 
         present disabilities, as the same relate to his right arm and 
 
         neck.  The injury of July 26, 1982 is a proximate cause of the 
 
         disability with which he is currently afflicted regarding his 
 
         right arm and neck.  The fact that medical science cannot 
 
         identify the source of a problem does not prove that a problem 
 
         does not exist.  The appearance and demeanor of claimant and his 
 
         spouse were observed as they testified and their testimony is 
 
         accepted as being credible and accurate.
 
         
 
              There is some question regarding whether claimant's 
 
         permanent disability should be evaluated industrially or as a 
 
         disability to his arm, a scheduled member.  It is obvious that 
 
         the bulk of his physical limitations deal with his right hand and 
 
         arm.  The record also, however, contains reference to injury to 
 
         his brachial plexus, a part of the body which is not located in 
 
         the arm. Claimant also has been rated as having disability, which 
 
         resulted from the 1982 injury, in his cervical spine.  Claimant's 
 
         testimony regarding the incident of July 26, 1982, and also the 
 
         earlier incident of April, 1982, clearly establishes that the 
 
         trauma of those incidents was not restricted to his right arm.  
 
         His symptoms are not inconsistent with some type of nerve 
 
         impingement in the brachial plexus or cervical spine.  The 
 
         evidence from the Mercy Hospital evaluation and from Dr. 
 
         Delbridge is accepted as correct even though it conflicts with 
 
         evidence from Dr. VanGilder. Claimant's disability is determined 
 
         to be a disability to the body as a whole.  It is not limited to 
 
                                                
 
                                                         
 
         claimant's right arm.  In assessing claimant's industrial 
 
         disability, the problems with his legs are considered to be 
 
         unrelated to the 1982 traumas, as indicated by Dr. Delbridge and 
 
         others.
 
         
 
              As indicated by Dr. Risk and Mr. Hines, it is found that 
 
         there is a psychological component to claimant's condition as 
 
         well as the physical component.
 
         
 
              Drs. Jack and Delbridge have indicated that claimant is 
 
         totally unable to be employed.  G. Brian Paprocki has reached the 
 
         same conclusion.  The physical restrictions that have been 
 
         indicated by Dr. VanGilder are not condusive to readily finding 
 
         gainful employment.
 
         
 
              The record of this case does not suggest a single viable 
 
         occupation or place of employment for Wayne Holliday.  He has not 
 
         looked for work.  In his present condition, it would be pointless 
 
         for him to seek work since there is no reasonable likelihood that 
 
         he could be employed in the competitive labor market.  Total 
 
         disability under compensation law is not to be interpreted 
 
         literally as utter and abject helplessness.  The ability to earn 
 
         some wages creates a presumption that the person has earning 
 
         capacity commensurate with the wages that have been earned, but 
 
         the presumption may be rebutted by evidence which shows that the 
 
         post-injury earnings are an unreliable indicator of actual 
 
         earning capacity.  2 Larson Workmen's Compensation Law, section 
 
         52.21(d). The loss of earning capacity is the reduction in value 
 
         of the general earning capacity of the individual rather than the 
 
         precise loss of wages or earnings in any specific occupation.  
 
         Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa 
 
         App. 1977) 100 A.L.R.3d 143.  The test of permanent total 
 
         disability in workers' compensation law has long been established 
 
               
 
                                                
 
                                                         
 
         and may be summarized as follows:  When the combination of the 
 
         factors considered in determining industrial disability precludes 
 
         the worker from obtaining regular employment in which he can earn 
 
         a living for himself, his disability is a total disability.  
 
         Guyton v. Irving Jensen, Co., 373 N.W.2d 101, 103 (Iowa 1985); 
 
         McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 (Iowa 1980); 
 
         Diedrich v. Tri-City Railway, 219 Iowa 587, 594, 258 N.W. 899, 
 
         902 (1935). Permanent disability means a disability that is 
 
         lasting for an indefinite and indeterminable period.  It does not 
 
         require absolute perpetuity.  Wallace v. Brotherhood, 230 Iowa 
 
         1127, 1130 (1941).  There are few individuals in our society 
 
         whose earning capacity is absolutely zero.  Even the most 
 
         severely impaired can, if they choose, produce some level of 
 
         earnings.  The test, however, is that the earnings be of a 
 
         sufficient level to make the person self-supporting.  It is found 
 
         that Wayne Holliday does not have sufficient residual earning 
 
         capacity to be self-supporting and that he is therefore totally 
 
         disabled.  It is further found that the condition of total 
 
         disability, and its underlying physical problems which induced 
 
         it, are long-lasting and indefinite.  They are therefore 
 
         considered to be permanent in nature.  There has been no progress 
 
         or noted improvement in his condition over the years since the 
 
         injury.  The fact, if it be a fact, that some part of his overall 
 
         problem is a depressive reaction or some other psychological 
 
         condition which has arisen from the physical injuries does not 
 
         make his overall condition any less disabling or any less 
 
         permanent.  The employer has the choice of medical care under the 
 
         provisions of Code section 85.27.  If there has been a failure to 
 
         diagnose and treat any emotional condition that may exist, the 
 
         impact of such failure rests as heavily on the employer, who has 
 
         the statutory duty to provide reasonable care, as it does on the 
 
         employee.  It is therefore found and concluded that Wayne 
 
         Holliday is permanently and totally disabled within the meaning 
 
         of section 85.34(3) of The Code.
 
         
 
              The rate of compensation is in dispute.  From the testimony 
 
         of claimant and of William Bower, it is clear that, in the 
 
         Midwest, the occupation of tuck pointing is largely seasonal, but 
 
         that there is some tuck pointing work available in the Midwest 
 
         even during the winter months and that some tuck pointing 
 
         companies move their operation to the southern states during the 
 
         winter months.  To compute compensation under section 85.36(9), 
 
         the occupation must be "exclusively seasonal."  From the evidence 
 
         presented in this case, it is found that the occupation of tuck 
 
         pointing is primarily seasonal in the Midwest, but that it is not 
 
         exclusively so.  Accordingly, claimant's rate of compensation 
 
         should be computed under section 85.36(6).  It appears that the 
 
         rate previously paid was based upon an average weekly wage of 
 
         $420.00.  Exhibit 11 shows that the average weekly wage during 
 
         the 13 preceding weeks was actually $382.04.  Since claimant was 
 
         married with two exemptions, this provides a rate of compensation 
 
         of $235.70 per week.  Defendants are, of course, entitled to a 
 
         credit for the erroneous overpayment.  Wilson Food Corp. v. 
 
         Cherry, 315 N.W.2d 756 (Iowa 1982); Wolfe v. Weigel & Stapf 
 
         Construction Co., 33rd Biennial Report, 221 (1977); White v. City 
 
                                                
 
                                                         
 
         of Fort Dodge, 33rd Biennial Report, 222 (1977).
 
         
 
              Claimant seeks to recover the cost of his treatment with Dr. 
 
         Jack as contained in exhibit 8.  The total shown is $150.00.  The 
 
         treatment provided, according to the evidence from Dr. Jack, is 
 
         in essence a monitoring of claimant's condition.  The treatment 
 
         is not unusual or unreasonable.  The charges on exhibit 8 appear 
 
         reasonable for a routine office visit.  While exhibit 1 shows 
 
         that some services, unrelated to the 1982 injuries were provided 
 
         to claimant, exhibit 8 does not seem to indicate any additional 
 
         charge submitted in this case for those services over and above 
 
         the charge for the routine office visit.  Defendants are 
 
         therefore responsible under section 85.27 for the fees of Dr. 
 
         Jack in the amount of $150.00 as shown on exhibit B.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Wayne Holliday was an employee of Spencer Company on 
 
         April 1, 1982 and on July 26, 1982 when he sustained injuries 
 
         which arose out of and in the course of his employment.  The 
 
         injury on April 1, 1982 occurred when a compressor unit fell upon 
 
         him across his chest.  The injury of July 26, 1982 occurred while 
 
         he was using a rope to pull a lookout to the top of a building.
 
         
 
              2.  At the time of injury, claimant was working as a tuck 
 
         pointer.
 
         
 
              3.  Following the injury of April 1, 1982, claimant was off 
 
         work for a period of time which has not been precisely determined 
 
         from the record made, but which appears to have been 
 
         approximately 11 days.
 
         
 
              4.  Following the injury of April 1, 1982, claimant was able 
 
         to resume the duties of employment, but he experienced some 
 
         difficulties in doing so.
 
         
 
              5.  Following the injury of July 26, 1982, claimant has not 
 
         returned to any gainful employment of any type.
 
         
 
              6.  The precise physiological damage or injury which 
 
         claimant sustained in either of the two incidents that occurred 
 
         in 1982 has not been determined.  Claimant experiences pain and 
 
         numbness in his right arm.  He has suffered a severe loss of the 
 
         ability to use his right hand.  Claimant also has pain in his 
 
         right shoulder region and a sensory impairment on the right upper 
 
         portion of the trunk of his body.
 
         
 
              7.  It is found to be probable that there is some 
 
         undiagnosed physiological condition in the anatomical region of 
 
         claimant's cervical spine, brachial plexus and right shoulder 
 
         which is responsible for the symptoms that he experiences in his 
 
         right arm.
 
         
 
              8.  It is further found that the injuries claimant sustained 
 
         on April 1, 1982 and/or July 26, 1982 were substantial factors in 
 
                                                
 
                                                         
 
         producing that physiological injury.
 
         
 
              9.  It is likely that there is some emotional component to 
 
         claimant's current physical condition.
 
         
 
              10.  The injuries sustained in either of the incidents in 
 
         1982 are not a probable source of the problems of which claimant 
 
         complains regarding his lower extremities except to the extent 
 
         that the problems may be psychologically induced.
 
         
 
              11.  Since the injury of July 26, 1982, Wayne Holliday has 
 
         not returned to gainful employment and has not been medically 
 
         capable of returning to gainful employment substantially similar 
 
         to that in which he was engaged at the time of injury.
 
         
 
              12.  Claimant is found to have reached the point that it was 
 
         medically indicated that further significant improvement from the 
 
         injury was not anticipated on August 10, 1983, the date he 
 
         completed his evaluation at the Mercy Hospital Medical 
 
         Occupational Evaluation Center.  Subsequent to that date, he has 
 
         not been under any active recuperative treatment.
 
         
 
              13.  Claimant does not have sufficient residual capacity to 
 
         be self-supporting.
 
         
 
              14.  Claimant does not have sufficient physical capacity to 
 
         enable him to be employed in any well-known branch of the labor 
 
         market in the geographic region of his residence, or elsewhere.
 
         
 
              15.  Wayne Holliday is a 45-year-old married man.
 
         
 
              16.  During the 13 weeks prior to July 26, 1982, claimant 
 
         earned $4,966.50.
 
         
 
              17.  The medical care claimant has received from Dr. Jack is 
 
         reasonable treatment for the injuries he sustained on July 26, 
 
         1982 and the charges made are fair and reasonable.
 
         
 
              18.  Wayne Holliday has a restricted range of motion in his 
 
         cervical spine and severely limited use of his right upper 
 
         extremity which have resulted from the injuries sustained on July 
 
         26, 1982.  He is in constant pain which is of a level that is 
 
         mentally distracting.
 
         
 
              19.  Claimant dropped out of high school during the twelfth 
 
         grade and has no further formal education.
 
         
 
              20.  Claimant's entire work experience has involved moderate 
 
         or heavy physical labor and proficient use of both upper 
 
         extremities.
 
         
 
              21.  Claimant is reasonably intelligent and a 
 
         highly-motivated individual who would prefer to be gainfully 
 
         employed rather than afflicted with his present state of 
 
         disability. Claimant is emotionally stable, but there may be some 
 
                                                
 
                                                         
 
         psychological component to his present condition which has arisen 
 
         from the physical injuries that he sustained.
 
         
 
              22.  Wayne Holliday, Patricia Holliday and William Bower are 
 
         fully credible witnesses.
 
         
 
              23.  As between the incidents of April 1, 1982 and July 26, 
 
         1982, the latter is found to be the primary source of the 
 
         disability with which claimant is currently afflicted.
 
         
 
              24.  The occupation of tuck pointer is not exclusively 
 
         seasonal.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injuries claimant sustained on April 1, 1982 and 
 
         July 26, 1982 arose out of and in the course of his employment 
 
         with Spencer Company.
 
         
 
              3.  Wayne Holliday is permanently and totally disabled 
 
         within the meaning of section 85.34(3) of The Code.
 
         
 
              4.  The injuries claimant sustained on April 1, 1982 and 
 
         July 26, 1982 are a proximate cause of his current permanent and 
 
         total disability.
 
         
 
              5.  Claimant's rate of compensation is determined under 
 
         section 85.36(6) and is found to be $235.70 per week.
 
         
 
                                       ORDER
 
 
 
                                       
 
                                                         
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant weekly 
 
         compensation for permanent total disability at the rate of two 
 
         hundred thirty-five and 70/100 dollars ($235.70) per week 
 
         commencing July 26, 1982 and continuing thereafter, for so long 
 
         as claimant remains totally disabled.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant's 
 
         expenses with Darwin B. Jack, M.D., in the amount of one hundred 
 
         fifty and 00/100 dollars ($150.00).
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 18th day of 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert D. Fulton
 
         Attorney at Law
 
         616 Lafayette Street
 
         P.O. Box 2634
 
         Waterloo, Iowa  50704
 
         
 
         Mr. Jeffrey J. Greenwood
 
         Attorney at Law
 
         528 West 4th Street
 
         P.O. Box 1200
 
         Waterloo, Iowa  50704
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1301, 1302, 1402.30, 1703
 
                                            1804
 
                                            Filed February 18, 1988 
 
                                            MICHAEL G. TRIER
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WAYNE V. HOLLIDAY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 711863 
 
         SPENCER COMPANY,
 
                                                   A R B I T R A T I 0 N 
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1301, 1302, 1402.30, 1703, 1804
 
         
 
              Claimant presented himself with symptoms affecting primarily 
 
         his right arm, but which also involved his neck and shoulder 
 
         region.  Although he had been thoroughly evaluated, the consensus 
 
         of the medical practitioners was that he did have bona fide 
 
         complaints and abnormalities, but that they were unable to 
 
         identify the etiology of those complaints and abnormalities.  The 
 
         record clearly showed that the onset of the complaints was 
 
         immediate following the trauma of which claimant complained.  It 
 
         was found that, in view of the medically documented physical 
 
         abnormalities, the unknown etiology and the onset upon the 
 
         occurrence of the trauma, that the trauma was a proximate cause 
 
         of claimant's difficulties.  Where the difficulties involved 
 
         primarily the right upper extremity, but also involved the 
 
         cervical spine, the disability was held to be to the body as a 
 
         whole.  Where the evidence failed to suggest, based upon 
 
         claimant's education, experience and physical condition, that 
 
         there was any type of employment for which he was reasonably 
 
         suited, he was found to be permanently and totally disabled. 
 
         Claimant was a construction worker who usually did not work 
 
         during the winter months, but the occupation in which he engaged 
 
         sometimes did provide winter work in the Midwest area or work in 
 
         warmer states.  The occupation was held to be not exclusively 
 
         seasonal and his rate of compensation was based upon his previous 
 
         13 weeks' earnings.