Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RONALD R. BENTON,             :
 
                                          :
 
                 Claimant,                :
 
                                          :         File Nos. 721933
 
            vs.                           :                   754493
 
                                          :
 
            HYMAN FREIGHTWAYS,            :          R E V I E W -
 
                                          :
 
                 Employer,                :        R E O P E N I N G
 
                                          :
 
            and                           :         D E C I S I O N
 
                                          :
 
            EXCALIBUR INSURANCE COMPANY   :
 
            by IOWA INSURANCE GUARANTY    :
 
            ASSOCIATION,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 These are proceedings in review-reopening upon 
 
            claimant's petitions filed March 16, 1989.  Claimant 
 
            sustained back injuries on November 26, 1982 (file number 
 
            721933) and September 20, 1983 (file number 754493).  
 
            Following a hearing on April 17, 1986, an arbitration 
 
            decision was filed on April 25 of that year finding that 
 
            claimant had sustained an industrial disability of 24 
 
            percent, two-thirds of which was attributable to the 1982 
 
            work injury and one-third of which was attributable to the 
 
            1983 work injury.  Defendants thereupon appealed and an 
 
            appeal decision was issued on December 16, 1986 which 
 
            discussed the accrual of interest, but otherwise affirmed 
 
            the arbitration decision.
 
            
 
                 Claimant now asserts that he has undergone a 
 
            deleterious change in condition and seeks benefits based 
 
            upon allegedly increased industrial disability.  A hearing 
 
            was thereafter held in Des Moines, Iowa, on June 4, 1990.  
 
            The record consists of the testimony of claimant and Joe 
 
            Chavez and joint exhibits 1 through 8.  Defendants' exhibit 
 
            9 was offered but excluded upon objection.  In addition, 
 
            official notice was taken of both files and the evidence 
 
            presented at the time of the arbitration hearing.
 
            
 
                                      issues
 
            
 
                 Pursuant to the prehearing report, the sole issues 
 
            presented for resolution include whether claimant has 
 

 
            
 
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            undergone a change of condition giving rise to additional 
 
            industrial disability, and if so, whether there is a causal 
 
            relationship to either or both work injuries.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            
 
                 Pursuant to the appeal decision filed on December 16, 
 
            1986, claimant's work with defendant Hyman Freightways 
 
            consisted of dock work and the delivery and pick up of 
 
            freight as of November 29, 1982, when he injured the disc at 
 
            L5-S1 requiring surgery in March, 1983.  The surgical 
 
            treatment consisted of a bilateral discectomy, 
 
            neuroforaminotomies and the removal of free fragments and 
 
            calcified disc for alleviation of symptoms.
 
            
 
                 On June 29, 1983, claimant was released for full duty, 
 
            but continued to have lingering back pain with work 
 
            activity.  On September 20, 1983, claimant reinjured his 
 
            lower back by fully herniating the same disc.  Additional 
 
            surgery to fuse the vertebrae at this level was performed in 
 
            January 1984.
 
            
 
                 Claimant returned to light-duty work in July 1984 and 
 
            was released to full-duty work in August of that year.  He 
 
            continued to suffer lingering pain and recurrent episodes 
 
            from work activity.
 
            
 
                 By reason of functional impairment and physical 
 
            restrictions following both work injuries, claimant as of 
 
            April 17, 1986 was unable to lift heavy or bulky objects, 
 
            but was able to function in his normal job as a dock worker 
 
            and driver with the assistance of mechanical devices and 
 
            accommodations made by Hyman Freightways.  Claimant 
 
            continued to suffer recurrent flare-ups of back pain while 
 
            performing his normal duties which necessitated occasional 
 
            absences and medication.  It was found that claimant had not 
 
            suffered a significant loss in actual earnings from 
 
            employment, but his future loss of earnings, if any, was 
 
            largely dependent upon the availability of continued 
 
            employment with Hyman.
 
            
 
                 Claimant was found to be highly motivated to remain 
 
            employed despite his physical impairment, and was then 34 
 
            years of age, had the equivalent of a high school education 
 
            and exhibited average intelligence.
 
            
 
                 Claimant was 38 years of age at the hearing of this 
 
            cause.  His work responsibilities remained the same as a 
 
            driver and dock worker.  Claimant agreed he could still 
 
            perform that work, but due to increasing pain, has 
 
            additional difficulties and must take more care in the 
 
            performance of his duties.  He has performed essentially the 
 
            same work for Hyman and a predecessor employer since 1973.  
 
            Hyman Freightways continues to accommodate him and claimant 
 

 
            
 
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            is satisfied with his job and intends to spend the rest of 
 
            his career in the same work.  He occasionally misses work 
 
            due to pain, and has done so since 1986.  However, he 
 
            generally works 40 or more hours per week, and occasionally 
 
            as many as 60 hours per week.  Medical records reflect that 
 
            he is now missing less time from work than he was in 1986.  
 
            However, this pattern is properly attributable to claimant's 
 
            courageous efforts to cope with his disability.
 
            
 
                 As was true at the time of the arbitration hearing, 
 
            claimant's continued back problems have not affected his 
 
            actual earnings.  Joe Chavez, director of safety and 
 
            compliance for Hyman Freightways, testified that claimant is 
 
            capable of doing his work and defendant is satisfied with 
 
            his job performance.  Defendant instituted a general program 
 
            of light-duty work to specifically accommodate claimant and 
 
            continues to do so.  Claimant's income has actually 
 
            increased because his hourly wage has increased per 
 
            negotiations with his bargaining unit.
 
            
 
                 Claimant's treating surgeon was William R. Boulden, 
 
            M.D.  Dr. Boulden testified by deposition taken May 31, 
 
            1990.  Prior to the arbitration hearing, the only medical 
 
            restriction Dr. Boulden imposed was the use of proper back 
 
            mechanics.  Following the fusion surgery, Dr. Boulden 
 
            believed that claimant had sustained a 15 percent permanent 
 
            partial impairment to the body as a whole.  One-third of 
 
            that rating was attributable to the fusion surgery.
 
            
 
                 Claimant saw Dr. Boulden with back pain complaints on 
 
            three occasions in May 1986.  Dr. Boulden concluded that the 
 
            pain arose from developing looseness of metal rods used in 
 
            the fusion surgery.  The fusion was stable, but loosening 
 
            rods can cause irritation.  Accordingly, additional surgery 
 
            was performed on June 2, 1986 to remove the rods.
 
            
 
                 Dr. Boulden did not believe that removal of the rods 
 
            increased impairment or disability.  Claimant complained of 
 
            pain on a number of occasions subsequently, typically 
 
            following unusual exertion at work, but Dr. Boulden believed 
 
            these to be instances of soft tissue strain or sprain and 
 
            has found no increased impairment attributable to either 
 
            subject work injury.  He has not assessed claimant's 
 
            impairment rating as being higher, nor have additional 
 
            medical restrictions been imposed (Dr. Boulden recommended 
 
            against claimant resuming work as an over-the-road truck 
 
            driver, work he had previously done, but claimant agreed 
 
            that this physician recommended against that work prior to 
 
            the 1986 hearing).
 
            
 
                 In his deposition testimony, claimant Dr. Boulden 
 
            stated:
 
            
 
                 A.  Based on my care and treatment of the patient 
 
                 and based on the surgery and based on the clinical 
 
                 findings up through January of 1989, I have found 
 
                 no changes to rate him out with any more 
 

 
            
 
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                 disability, so, no, I have not changed my opinion.
 
            
 
            (Dr. Boulden deposition, page 15, line 21 through page 16, 
 
            line 1)
 
            
 
                 And:
 
            
 
                 A.  Let's say my rating, as I stated before, is 
 
                 the same, and if Ron came in and said, "I've had 
 
                 persistent pain.  Nothing is helping me.  I'm not 
 
                 getting better," and all this stuff, then the 
 
                 rating would have definitely gone up; but as I 
 
                 stated and testified earlier, before he's had a 
 
                 lot of temporary aggravations which we always seem 
 
                 to get down to a good baseline, that he returns to 
 
                 functional use again, so that's why I have not 
 
                 determined that he has anything pathologically 
 
                 changed to persist in his symptoms, to make him 
 
                 persistent in nature.  I'm not saying he hadn't 
 
                 had spells or flare-ups, and that's how I guess I 
 
                 utilize a system when I say persistent pain.
 
            
 
            (Dr. Boulden deposition, page 38, lines 5 through 19)
 
            
 
                 Although magnetic resonance imaging has shown a bulging 
 
            of the disc immediately above the surgically excised disc, 
 
            it is unclear whether that bulging preexisted the subject 
 
            work injuries and subsequent fusion surgery since MRI 
 
            studies were not available at the time.  Fusion surgery does 
 
            tend to put additional stress on the next higher disc, but 
 
            at least at this point, it cannot be said that claimant has 
 
            sustained additional impairment or loss of earning capacity 
 
            resulting from any other level of the spine.  Dr. Boulden 
 
            described this bulging disc as "early degenerative," meaning 
 
            not advanced degeneration, and indicated that such disc 
 
            bulges are nothing out of the ordinary for anybody who works 
 
            hard with his or her back.  He also noted that the bulge 
 
            showed no signs of nerve entrapment or pressure.
 
            
 
                 Claimant was seen for evaluation by Martin Rosenfeld, 
 
            D.O.  Dr. Rosenfeld testified by deposition on May 1, 1990.  
 
            He believed that claimant had sustained a 20 percent 
 
            impairment to the body as a whole by reason of the subject 
 
            work injuries, but since he had not seen claimant before the 
 
            arbitration hearing, was unable to render an opinion as to 
 
            whether claimant's condition had deteriorated.  However, he 
 
            noted that he would normally anticipate deterioration 
 
            following a fusion in the next higher level because stress 
 
            is transferred upward.  Dr. Rosenfeld did not suggest 
 
            specific medical restrictions.  In response to a direct 
 
            question, he indicated that he held no opinion as to whether 
 
            claimant had undergone any change in medical condition 
 
            because he had been seen on only one occasion.
 
            
 
                 Claimant credibly testified to increased pain since the 
 

 
            
 
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            arbitration hearing.  Whereas back pain was intermittent in 
 
            1986, he now suffers either from pain or numbness almost 
 
            constantly, especially in the left leg, and feels that his 
 
            back is becoming progressively weaker.  He finds his ability 
 
            to lift, twist or bend to be progressively less.
 
            
 
                                conclusions of law
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consol. Indus. Coal Co., 228 
 
            Iowa 1031, 291 N.W.2d 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 Claimant has undergone additional surgery since the 
 
            arbitration decision to remove metal rods from his fused 
 
            vertebrae at L5-S1.  The surgery did not result in increased 
 
            impairment or medical restrictions.  He has undergone 
 
            intermittent bouts of back pain, typically diagnosed as due 
 
            to strain or sprain.  He does suffer additional pain in the 
 
            back and left leg, but as of the present time this has not 
 
            interfered with his ability to continue performing his job 
 
            up to 60 hours per week.
 
            
 
                 In essence, industrial disability is primarily a 
 
            reduction in earning capacity.  Olson v. Goodyear Serv. 
 
            Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  Claimant's 
 
            actual earnings are now greater than they were at the time 
 
            of the 1986 arbitration hearing.  His earning capacity has 
 
            not changed as he remains in the same job (as before, 
 
            subject to the accommodations made by Hyman Freightways) 
 
            working the same hours.  Claimant intends to continue in 
 
            this work.  There has been no change in impairment and he 
 
            has no additional medical restrictions.  It does not appear 
 

 
            
 
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            that claimant is currently foreclosed from any form of 
 
            remunerative endeavor which he could perform as of April 17, 
 
            1986.
 
            
 
                 There has been a change in claimant's condition in that 
 
            he now suffers increased pain to the back and left leg.  
 
            Pain and suffering is, of course, an appropriate element of 
 
            damages in personal injury litigation.  However, pain and 
 
            suffering does not operate to increase industrial disability 
 
            unless there is some impact on earning capacity.
 
            
 
                 Considering all of the evidence then, it is determined 
 
            that claimant has failed to establish a change in his 
 
            condition since the arbitration hearing of April 17, 1986, 
 
            indicating that he now has increased industrial disability 
 
            causally related to either subject work injury.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 Claimant shall take nothing from these proceedings.
 
            
 
                 Costs are assessed to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. W. Michael Murray
 
            Attorney at Law
 
            2323 Grand Avenue
 
            Des Moines, Iowa  50312
 
            
 
            Mr. Cecil L. Goettsch
 
            Mr. D. Brian Scieszinski
 
            Attorneys at Law
 
            1100 Des Moines Building
 
            Des Moines, Iowa  50309
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           1803
 
                           Filed January 7, 1991
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RONALD R. BENTON,   :
 
                      :
 
                 Claimant, :
 
                      :         File Nos. 721933
 
            vs.       :                   754493
 
                      :
 
            HYMAN FREIGHTWAYS,  :          R E V I E W -
 
                      :
 
                 Employer, :        R E O P E N I N G
 
                      :
 
            and       :         D E C I S I O N
 
                      :
 
            EXCALIBUR INSURANCE COMPANY   :
 
            by IOWA INSURANCE GUARANTY    :
 
            ASSOCIATION,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            1803
 
            In review-reopening, claimant failed to show change in 
 
            condition where there was no change in impairment, medical 
 
            restrictions, or his long-term employment status.  Claimant 
 
            now suffers more back and radicular pain, but while this may 
 
            be a proper element of damages in personal injury 
 
            litigation, it is not compensable under Chapter 85 unless 
 
            there is an impact on earning capacity.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROLAND DONOHO,
 
         
 
              Claimant,
 
                                                File No. 722150
 
         vs.
 
                                             A R B I T R A T I O N
 
         T & T SERVICES,
 
                                                D E C I S I O N
 
              Employer
 
                                                   F I L E D
 
         and
 
                                                  FEB 28 1989
 
         AETNA LIFE AND CASUALTY CO.
 
                                              INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Roland R. 
 
         Donoho, claimant, against T & T Services, employer, and Aetna 
 
         Life and Casualty Company, insurance carrier, defendants, for 
 
         benefits as the result of an injury that occurred on December 14, 
 
         1982.  A hearing was held in Council Bluffs, Iowa, on June 27, 
 
         1988, and the case was fully submitted at the close of the 
 
         hearing.  The record consists of the testimony of Roland R. 
 
         Donoho, claimant, Lucinda Donoho, claimant's wife, joint exhibits 
 
         1 through 15, and defendants' exhibits 16, 17 and 18.  Both 
 
         attorneys submitted excellent briefs.  The deputy ordered a 
 
         transcript of the proceedings and directed that the initial cost 
 
         of the transcript would be paid by defendants and that the 
 
         ultimate cost of the transcript would be paid for by the 
 
         nonprevailing party [Iowa Code section 86.19(1)].
 
         
 
         PRELIMINARY MATTERS
 
         
 
              Claimant moved to amend the original notice and petition to 
 
         allege an arbitration proceeding rather than a review-reopening 
 
         proceeding and to amend the injury date from December 19, 1982, 
 
         to December 14, 1982.  Defendants did not object to these motions 
 
         and they were granted.
 
         
 
              The parties agreed that even though the hearing assignment 
 
         order shows that rate, medical benefits and whether claimant is 
 
         an odd-lot employee are issues to be determined by this hearing, 
 
         that the parties had reached agreement on these issues and that 
 
         they were to be deleted as hearing issues in this case 
 
         (Transcript page 6).
 
         
 
                             STIPULATIONS
 
                                                
 
                                                         
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That.an.employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant did sustain an injury on December 14, 1982, 
 
         that arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of both temporary and 
 
         permanent disability.
 
         
 
              That claimant is entitled to 30 weeks of permanent partial 
 
         disability benefits based on a 20 percent permanent impairment of 
 
         the foot.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $115.06 per week.
 
         
 
              That claimant's entitlement to medical benefits is no longer 
 
         in dispute and that all requested medical benefits have been or 
 
         will be paid.
 
         
 
              That defendants make no claim for credit for nonoccupational 
 
         group health plan benefits paid prior to hearing.
 
         
 
              That defendants are entitled to a credit for 89 and 1/7 
 
         weeks of workers' compensation benefits at the rate of $115.06 
 
         per week which were paid prior to hearing.
 
         
 
              That there.are no bifurcated claims.
 
         
 
              That the issue of whether claimant is an odd-lot employee 
 
         was withdrawn at the time of the hearing.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether claimant is entitled to healing period benefits, and 
 
         if so, the amount of benefits to which he is entitled (Tr. p. 
 
         6).
 
         
 
              What is the proper commencement date for permanent partial 
 
         disability benefits (Tr. p. 6).
 
         
 
                          EXPLANATION OF ISSUES
 
         
 
              Defendants paid claimant temporary disability benefits from 
 
         December 15, 1982 until August 29, 1984.
 
         
 
              Claimant asserts that he is entitled to additional healing 
 
         period benefits from August 29, 1984 to July 1, 1986 (Tr. p. 7).
 
         
 
                                                
 
                                                         
 
              Defendants contend that the amount of healing period 
 
         benefits paid prior to August 29, .1984, were an overpayment.of 
 
         benefits and that they are entitled to a credit against the 
 
         permanent partial disability benefits that they have agreed to 
 
         pay (Tr. p. 7).
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant was 31 years old at the time of the injury on 
 
         December 14, 1982.  He fractured his left heel bone when he 
 
         jumped approximately 20 to 21 feet onto hard packed frozen ground 
 
         when the ladder on which he was standing began to slide (Tr. pp. 
 
         20 & 21).  In the medical evidence, the heel bone is sometimes 
 
         called the calcaneous and other times it is called the os calcis. 
 
         Claimant was taken to Jennie Edmundson Hospital (Tr. p. 22).  He 
 
         was examined by the emergency room doctor, E. Mathiasen, M.D.  He 
 
         was subsequently treated by R. Michael Gross, M.D., Bernard 
 
         Kratochvil, M.D., and Robert J. Klein, M.D., all of the same 
 
         professional corporation.  Claimant was diagnosed as having a 
 
         calcaneal fracture extending into the posterior facet of the 
 
         subtalar region.  He was hospitalized for six days, from December 
 
         14, 1982 to December 20, 1982.  He was treated with medication 
 
         for pain and physical therapy.  The prescribed method of 
 
         treatment was early motion without weight bearing and without 
 
         cast immobilization.  Claimant was unable to work after the 
 
         injury on December 14, 1982 (Exhibits 1 & 2)
 
         
 
              Dr. Kratochvil continued to be claimant's treating physician 
 
         in 1983.  He reported considerable pain on May 3, 1983 (Ex. 3A). 
 
         He decided against a subastragalar fusion on July 5, 1983 (Ex. 
 
         4). On August 23, 1983, he reported that osteoporosis had 
 
         subsided, but claimant had not reached maximum medical 
 
         improvement.  He felt that some permanent disability would be 
 
         associated with this injury (Ex. 5).  On November 3, 1983, Dr. 
 
         Kratochvil reported continued soreness of the heel and a clicking 
 
         sensation in the subastragalar joint.  Claimant was not able to 
 
         work.  Surgery was reconsidered (Ex. 6).  On November 10, 1983, 
 
         Dr. Kratochvil said surgery was not contemplated.  Claimant was 
 
         not able to return to the heavy work that he was doing at the 
 
         time of the accident (Ex. 7).
 
         
 
              Claimant said that they x-rayed his whole body because he 
 
         fell so far.  He did not wear a cast or braces, but he did use 
 
         crutches.  He said they told him that he had broke his heel bone, 
 
         which is like an eggshell, and it was the hardest bone in the 
 
         body to heal (Tr. p. 25).  Claimant said he used crutches until 
 
         midyear 1983.  During this same period, he attended Iowa Western 
 
         Community College for five quarters until midyear 1983.  He 
 
         studied English, mathematics, psychology and business courses 
 
         (Tr. pp. 26 & 27).
 
         
 
              Claimant testified that he became .dissatisfied with the 
 
                                                
 
                                                         
 
         progress of his recovery in November and December of 1983.  He 
 
         continued to have soreness and clicking in his left heel.  The 
 
         insurance carrier then transferred his care to Oscar M. Jardon, 
 
         M.D., an associate professor of orthopedic surgery at the 
 
         University of Nebraska Medical School in Omaha, Nebraska.  He 
 
         began seeing Dr. Jardon on January 5, 1984 (Tr. pp. 29 & 30; Ex. 
 
         8; Ex. 15, p. 4).
 
         
 
              Dr. Jardon began with conservative treatments of a medial 
 
         heel wedge and nonsteroidal anti-inflammatory medications.  A 
 
         release of the peroneus longus tendon was a long range 
 
         consideration (Ex. 8).  Dr. Jardon's diagnosis was tendonitis of 
 
         the peroneus longus tendon with slight impingement in gait on 
 
         this tendon (Ex. 9; Ex. 15, p. 5).
 
         
 
              Dr. Jardon gave a deposition on August 24, 1987.  He stated 
 
         he was licensed in 1957 and was board certified in 1972 (Ex. 15, 
 
         p. 3).  He curriculum vitae is impressive (Ex. 15; deposition ex. 
 
         2).  In his deposition, Dr. Jardon testified that fractures of 
 
         the heel bone tend to be disabling for long periods of time.  
 
         "It's probably the one fracture that's longest in disability for 
 
         a patient that there is." (Ex. 15, p. 5).
 
         
 
              Claimant was admitted for peroneus release on May 29, 1984 
 
         (Ex. 15, p. 6; Ex. 12; Tr. p. 33).  The surgery showed no 
 
                   
 
                   
 
                   
 
                                                         
 
         evidence of peroneal tendonitis, but it did disclose scarring of 
 
         the talofibular ligament that was impinging on the tendon and a 
 
         bone spur, which was not apparent on x-ray, was resected.  
 
         Claimant was cast and used crutches after the surgery.  Claimant 
 
         then continued to putz along with recovery for a period of time 
 
         until July of 1986 when he showed marked improvement with 
 
         anti-inflammatories and injections.  He still had a small amount 
 
         of pain in the fibula, but all-in-all his rehabilitation program 
 
         showed steady progress (Ex. 15, pp. 7 & 8).
 
         
 
              Dr. Jardon said that his last note from the physical 
 
         therapist on July 1, 1986, said that the patient was better and 
 
         not interested in further rehabilitation.  It was felt his loss 
 
         of flexibility and intermittent pain represented a 20 percent 
 
         loss of permanent partial disability to the lower extremity.  He 
 
         also had trouble with his hip from his limp caused by the foot 
 
         which was diagnosed as acute trochanteric bursitis.  Claimant was 
 
         dismissed from the clinic on July 15, 1986, but could return as 
 
         he felt necessary (Ex. 15, p. 8).
 
         
 
              Earlier in claimant's treatment on August 2, 1984, and 
 
         August 23, 1984, Dr. Jardon anticipated releasing claimant from 
 
         active medical treatment (Ex. 10 & 11).  However, on December 13, 
 
         1985, Dr. Jardon said claimant continued to have sharp pain in 
 
         October of 1984 and he attempted to reduce the pain using 
 
         ultrasound and phonophoresis of hydrocortisone.  On October 25, 
 
         1984, Dr. Jardon noted slight improvement in the pain, ,but the 
 
         ankle still.had a lot of cracking and popping.  He said he 
 
         concluded on September 12, 1985, that claimant could do some 
 
         useful work and awarded a rating of 20 percent permanent partial 
 
         disability of the foot (Ex. 13).
 
         
 
              Dr. Jardon testified that claimant's left foot problems were 
 
         caused by the fall on December 14, 1982 (Ex. 15, p. 14).  The 
 
         doctor explained why this injury caused claimant so much trouble 
 
         (Ex. 15, p. 15).  Dr. Jardon repeated; "As I mentioned early on 
 
         in this deposition, fractures of the heel bone are notorious for 
 
         being disabling during their healing phase longer than about any 
 
         other kind of a fracture you get in the lower extremity, go on 
 
         for a year or two or three."  (Ex. 15, p. 16).  Dr. Jardon added 
 
         that there was slight improvement after the tendon release and 
 
         that they kept at it until he was released in July of 1986 (Ex. 
 
         15, p. 13).
 
         
 
              Dr. Jardon agreed that it was true that claimant missed 
 
         appointments July 17, 1984 and July 19, 1984 (Ex. 15, Dep. Ex. 3, 
 
         pp. 19 & 20), but a card was sent to claimant to reschedule the 
 
         appointments (Ex. 15, p. 19).  He admitted that he had considered 
 
         releasing claimant from active medical treatment at his next 
 
         appointment as he stated in his letter on August 2, 1984 (Ex. 
 
         10), but it didn't work out this way (Ex. 15, p. 20).  Dr. Jardon 
 
         said, "It didn't happen quite that way."  (Ex, 15, p. 22).  Dr. 
 
         Jardon said that claimant may have tried to work (Ex. 15, p. 22) 
 
         but claimant was not able to work on October 4, 1984 (Ex. 15, p. 
 
         23). He wanted claimant to lay off to gain control of it and he 
 
                                                
 
                                                         
 
         wanted to start phonophoresis, range of motion exercises, 
 
         stretching and ice bags with a goal toward gaining some better 
 
         motion and reduction in pain.  He had shown improvement.  The 
 
         ligaments were intact.  The ankle was stable (Ex. 15, p. 24).
 
         
 
              Dr. Jardon did not see claimant from October of 1984 until 
 
         September of 1985.  Claimant missed an appointment in December of 
 
         1984 and on August 13, 1985, but he showed up on September 12, 
 
         1985.  Claimant was improving but still had some pain.
 
         
 
              Dr. Jardon explained that it was alright that claimant did 
 
         not come in to see him from October of 1984 until September of 
 
         1985.  He had instructed claimant to do what he felt like doing. 
 
         That included work or playing around or going fishing or dancing 
 
         with his girlfriend, but if he had trouble he was admonished to 
 
         come in and see Dr. Jardon.  Claimant had intermittent trouble 
 
         and when he became acute enough, he came to see him (Ex. 15, pp. 
 
         25-27).  Dr. Jardon said that claimant's activities in this 
 
         period were up to claimant.  This included work as tolerated, if 
 
         he felt like it.  Dr. Jardon told him to do what he wanted to do 
 
         until he got hurting and then to come in and see him (Ex. 15, p. 
 
         28).  Dr. Jardon testified it was not contrary to his advice for 
 
         claimant to work insofar as he was capable (Ex. 15, p. 29).
 
         
 
              Dr. Jardon said that by the first of July 1986, claimant was 
 
         doing a lot better.  On July 17, 1986, claimant was much improved 
 
         with his injections and physical therapy.  It was at this point 
 
         that Dr. Jardon released claimant from treatment to come in 
 
         whenever he needed to. Dr. Jardon said this is not an unusual 
 
         story for this injury.  It is the longest partial permanent 
 
         recovery period following a fracture of this kind, of about any 
 
         break in the body, because it is down in a tightly fitted joint 
 
         with a lot of tendons and soft tissue around it.  It is not 
 
         unusual to be monkeying with these things for two and one-half to 
 
         three years in a fracture of the heel bone (Ex. 15, p. 27) . Dr. 
 
         Jardon added that this is the best that he can do with these 
 
         kinds of cases.  The worst thing to do is to take them clear off 
 
         work indefinitely.  You've got to get them to keep trying and 
 
         they will get back to the work force eventually (Ex. 15, pp. 
 
         29-31).
 
         
 
              Claimant testified at the hearing that his heel still 
 
         clicks. He demonstrated it in the court room at the hearing.  He 
 
         has pain in the morning and on cloudy days.  It stiffens up after 
 
         long periods of standing and walking.  Sitting is alright if he 
 
         can move around.  Weight bearing still hurts the surgical area 
 
         (Tr. pp. 32 & 33).  Claimant granted that he missed some 
 
         appointments with Dr. Jardon, but he always rescheduled them 
 
         again (Tr. 34 & 35).  Exhibits 16 and 17 are letters from the 
 
         insurance carrier to claimant urging him to keep certain 
 
         appointments (Tr. pp. 83-87). Claimant explained that sometimes 
 
         he had no car, or only one car. Sometimes the car was broken 
 
         down.  Sometimes he would have trouble at home.  Sometimes Dr. 
 
         Jardon was running behind schedule and claimant did not have the 
 
         money for the parking meter or to pay the fine for overtime 
 
                                                
 
                                                         
 
         parking.  Claimant asserted that he always rescheduled the 
 
         appointments.  He testified that Dr. Jardon and the physical 
 
         therapist never complained about.his missing any of these 
 
         appointments (Tr. pp. 27 & 34-36).
 
         
 
              Claimant testified that he attended school until May of 
 
         1984, had surgery in June of 1984 and recuperated until August of 
 
         1984. He indicated that he did not work at all until August of 
 
         1984 (Tr. p. 37).  Claimant was impeached on this testimony (Tr. 
 
         p. 89). Defendants introduced checks which claimant had received 
 
         from Jack T. Stageman and Teresa A. Stageman as follows:
 
         
 
         
 
              July 22, 1983              $ 100.00
 
              July 27, 1983                 93.00
 
              July 30, 1983                107.50
 
              August 22, 1983              137.50
 
              August 27, 1983              240.00
 
              August 29, 1983               67.50
 
              September 15, 1983           107.50
 
              TOTAL                      $ 853.00
 
         
 
         (Ex. 18)
 
         
 
              Claimant contended that he bought and resold these air 
 
         conditioners to the Stagemans.  The memo portion of the checks 
 
         showed that they were for labor, as well as air conditioners (Ex. 
 
         18).  Claimant denied that there was any labor involved (Tr. pp. 
 
         91-93).  Claimant testified that he bought air conditioners and 
 
         Stagemans have him a check for what he had in them.  He was just 
 
         swapping money.  He received a reimbursement for air conditioning 
 
         parts.  He was just helping friends that he had met at an A.A. 
 
         meeting (Tr. pp. 96-99).
 
         
 
              When benefits stopped on August 29, 1984, claimant said that 
 
         he started picking up used air conditioners under the name of 
 
         Southside Associates.  He scavenged air conditioner parts like 
 
         motors, condenser coils and switches and sold them to air 
 
         conditioning outfits but he did not make any money at it (Tr. pp. 
 
         37, 38, 71, 72 and 74).  He testified that he quit scavenging air 
 
         conditioner parts because he could not make any money at it and 
 
         because Dr. Jardon advised against it (Tr. p. 40).  Claimant 
 
         testified that his girlfriend supported him with her welfare 
 
         payments and food stamps.  He sold his blood once a week to get 
 
         money for gas to go make about 35 job applications (Tr. p. 39). 
 
         He worked for a bedding company, Omaha Bedding Company, for one 
 
         day running a staple gun, but he could not stand on the concrete 
 
         floor all day (Tr. pp. 41 & 72).  He then worked for Benchmark 
 
         Homes Remodeling for less than one or two weeks doing fix-up work 
 
         (Tr. p. 73).  He then took a part-time job three or four nights a 
 
         week as a bartender at Offutt Air Force Base beginning on 
 
         November 1, 1984, earning $136 per week gross.  Claimant granted 
 
         that this was not a wise choice because he had a drinking problem 
 
         and was going to A.A.  (Tr. pp. 41, 42 & 77).  Also, the standing 
 
         and walking behind the bar were not possible for him to do (Tr. 
 
                                                
 
                                                         
 
         p. 44).
 
         
 
              Claimant said the insurance carrier never explained to him 
 
         why benefits had ceased on August 29, 1984.  He called once.  The 
 
         claim representative was on vacation and he never called back 
 
         again.  Claimant said he was never told to report that he was 
 
         looking for work, was working or that he made any money working 
 
         (Tr. pp. 43 & 44).  No one told him benefit checks would be 
 
         stopped if he worked.  He did not know you could not have a 
 
         part-time job and draw benefits (Tr. p. 70).
 
         
 
              Claimant performed the part-time bartender job from November 
 
         1, 1984, to January 15, 1985.  On January 15, 1985, claimant was 
 
         hospitalized at the Veterans Administration Hospital for alcohol 
 
         abuse, multiple substance abuse, personality disorder and 
 
         gastritis.  He was released to seek employment on March 25, 1985 
 
         (Ex. 14; Tr. pp. 44, 77 & 78).
 
         
 
              Claimant acknowledged that he served in Viet Nam, was shot 
 
         twice, exposed to Agent Orange, became alcohol and drug addicted, 
 
         was caught with heroin, served 11 months in Fort Leavenworth and 
 
         received a bad conduct discharge (Tr. p. 46).  Claimant said the 
 
         stress of his injury and his inability to find employment and a 
 
         flashback to Viet Nam caused his VA hospitalization.  The main 
 
         concern about his hospitalization was his desire to take his own 
 
         life (Tr. pp. 45-49 & 52).  The Veterans Administration Hospital 
 
         did not treat his foot (Ex. 14; Tr. pp. 48 & 50).
 
         
 
              Claimant testified that after his discharge from the VA 
 
         hospital that he worked, very, very part-time for his 
 
         brother-in-law at Otto Kessler Investments performing light 
 
         maintenance, fixing doorknobs, doorjambs, hanging cabinets and 
 
         doing small plumbing jobs for approximately one and one-half to 
 
 
 
                   
 
                                                
 
                                                         
 
         two months. This was during the period from approximately March 
 
         25, 1985, to May of 1985.  Claimant testified that this job ended 
 
         because there was not enough work to keep him busy and because 
 
         there wasn't enough money in it (Tr. pp. 53 & 80).  Claimant said 
 
         that he earned approximately $300 to $400 per month on this job 
 
         (Tr. p. 81).
 
         
 
              Claimant testified that he then started to work for Peterson 
 
         Brothers Realty doing painting, electrical, plumbing and 
 
         carpentry work from May of 1985 until March of 1986.  Claimant 
 
         admitted that he lied and concealed the fact that he had a prior 
 
         employment injury in order to get this job.  Claimant said that 
 
         he patched walls, changed light box covers, fixed doorjambs, 
 
         changed faucets and did general.light duty maintenance.  He also 
 
         scraped snow in the winter.  He thought he earned $2,000 in the 
 
         first three months in 1986.  He said that he did not see a doctor 
 
         during this period of time (Tr. pp. 56-59, 81 & 82).
 
         
 
              Claimant testified that from March of 1986 to midyear 1986, 
 
         he was self-employed fixing up apartment houses and painting 
 
         houses, but he paid out more than he took in because he had to 
 
         hire other people to do the work (Tr. pp. 59 & 60).  At about 
 
         this time, claimant testified that he returned to see Dr. Jardon 
 
         because of pain in his left knee and left hip and back.  Dr. 
 
         Jardon prescribed more physical therapy (Tr. p. 62).  Dr. Jardon 
 
         told him that he was going to have trouble sometimes.  There 
 
         would be days when he could not work, but there is nothing more 
 
         that he could do for him.  He was told that he can take aspirin 
 
         and live with it.  This was the last time he saw Dr. Jardon (Tr. 
 
         pp. 63, 64, 67 & 68).
 
         
 
              Claimant testified that he could not support his family on 
 
         any of these jobs.  He went $10,000 in debt while doing them. 
 
         None of the jobs provided medical insurance (Tr. pp. 64 & 65). 
 
         Claimant did not know if he earned enough to file income tax 
 
         returns in 1984 and 1985.  He did file an income tax return in 
 
         1986 (Tr. p. 82).
 
         
 
              Claimant confirmed that Dr. Jardon told him to do what he 
 
         felt like doing after September of 1984.  This included working. 
 
         If he had trouble he was to come back.  The next time he found it 
 
         necessary to see Dr. Jardon was in August of 1985 (Tr. pp. 75 & 
 
         76).
 
         
 
              At another point in his testimony, claimant reiterated that 
 
         after the operation, Dr. Jardon said that he was going to have to 
 
         try to do something.  Work when you feel like it.  Try to do 
 
         something.  Stay off the strenuous stuff, find something you can 
 
         handle (Tr. p. 101).
 
         
 
              Lucinda Donoho, claimant's wife, testified that she married 
 
         claimant on November 9, 1983, which was after the injury occurred 
 
         on December 14, 1982.  She corroborated that claimant bought and 
 
         sold air conditioners, but he wasn't working for anyone.  She 
 
         said they were both going to school at that time.  He did not 
 
                                                
 
                                                         
 
         start to look for work until 1984.  He constantly tried to figure 
 
         out something that he could do to remedy his unemployment 
 
         situation (Tr. pp. 107-110).  She said that the VA hospital 
 
         incident was caused by his lack of employment, stable employment, 
 
         lack of self-esteem for not finding employment or having enough 
 
         income and they were losing the house that they were living in at 
 
         that time (Tr. p. 111).
 
         
 
              At the time of the hearing, claimant testified that he was 
 
         employed as a project estimator.  He had been doing this for 
 
         seven months, since October of 1987.  His duties involved making 
 
         bids on new commercial and residential housing for his employer, 
 
         Carlson Dry Wall.  He submitted these bids to the general 
 
         contractor, selected and ordered materials and scheduled work on 
 
         a bar graph form (Tr. pp. 18 & 19).  Claimant testified that his 
 
         prior work experience has been in construction work (Tr. p. 
 
         102).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 14, 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).
 
         
 
              In this case, the question of causal connection between the 
 
         injury and the amount of temporary disability is essentially 
 
         within the domain of one medical expert, Dr. Jardon.  His 
 
         testimony will be considered with all of the other evidence.  It 
 
         will be accepted and applied in its simplest and plainest 
 
         meaning. Dr. Jardon was claimant's primary treating physician.  
 
         He is the only physician to give a statement or render an opinion 
 
         on the single issue in this case.  Dr. Jardon was an authorized 
 
         physician and was selected by defendants.  His testimony is not 
 
         contradicted by any other doctor.  Dr. Jardon was licensed in 
 
         1957 and became board certified in 1972.  He is both a practicing 
 
                                                
 
                                                         
 
         physician and also an associate professor of orthopedic surgery.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he is entitled to temporary disability 
 
         benefits during a period of recovery beginning on December 15, 
 
         1982, the day after his injury, until the last time he saw Dr. 
 
         Jardon on or about July 1, 1986.  Since the parties have 
 
         stipulated that claimant is entitled to permanent partial 
 
         disability of 20 percent of the foot, then the type of temporary 
 
         disability benefit is to be characterized as healing period 
 
         disability.  The statute says it begins on the date of the injury 
 
         and goes on until, (l) the employee has returned to work, or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated, or (3) until the employee is medically 
 
         capable of returning to employment substantially similar to the 
 
         employment in which the employee was engaged at the time of the 
 
         injury, which ever occurs first [Iowa Code section 85.34(1)].
 
         
 
              Dr. Jardon, the singular and eminently qualified medical 
 
         authority in this case, stated that fractures of the heal bone 
 
         tend to be disabling for the longest period of time.  It is the 
 
         one fracture that has the longest disability for a claimant (Ex. 
 
         15, p. 5).  Claimant continued to show recovery in his opinion, 
 
         until July of 1986.  He thought claimant's rehabilitation program 
 
         showed steady progress until this time (Ex. 15, pp. 7 & 8).  His 
 
         last note on July 15, 1986, shows that the physical therapist 
 
         said that the patient was doing much better and was not 
 
         interested in further rehabilitation (Ex. 15, p. 8).  He did not 
 
         dismiss claimant until July 15, 1986 (Ex. 15, p. 8).
 
         
 
              Even though the insurance carrier terminated benefits on 
 
         August 29, 1984, Dr. Jardon was still actively treating claimant 
 
         with ultrasound and phonophoresis of hydrocortisone in October of 
 
         1984.  On October 25, 1984, Dr. Jardon noted slight improvement 
 
         in the pain since the release of the ligaments, but the ankle 
 
         remained sore with a lot of cracking and popping and Dr. Jardon 
 
         was continuing to treat this condition (Ex. 13).
 
         
 
              Defendants were not justified in terminating claimant's 
 
         temporary disability benefits on August 29, 1984.
 
         
 
              The alleged basis for the termination of benefits was stated 
 
         to be, (l) failed appointments and (2) surreptitious employment 
 
         (Tr. pp. 11 & 123; Def. brief p. 2).  It should be noted that the 
 
         calendar in defendants' brief, appendix A, was very helpful in 
 
         seeing the dates applicable to this case in graphic form.
 
         
 
              A third defense is that defendants further contend that 
 
         claimant is only entitled to temporary partial disability 
 
         benefits in July, August and September of 1983, when claimant 
 
         received $853 in checks from Jack and Teresa Stageman (Ex. 18).  
 
         Citing Iowa Code section 85.33(4) defendants prepared a 
 
         calculation of temporary partial disability benefits to show that 
 
         claimant was only entitled to a benefit payment of $25.22 per 
 
         week instead of the $115.06 per week which claimant had received.  
 
                                                
 
                                                         
 
         This resulted in an overpayment to claimant in the amount of 
 
         $89.84 per week for six weeks.  Defendants asserted that they 
 
         were entitled a total credit in the amount of $539.03 (Def. Brief 
 
         pp 2-4).
 
         
 
              Defendants assertion that claimant was only entitled to 
 
         temporary partial disability benefits is without merit.  Both 
 
         paragraph 3 and 4 of Iowa Code section 85.33 state that they 
 
         apply to the situation where the employer, for whom the employee 
 
         was working at the time of injury, provides suitable work for the 
 
         employee.  Claimant did not return to work for this employer. 
 
         Instead, claimant worked for other employers and for himself as a 
 
         self-employed person.
 
         
 
              Iowa Code section 85.33(3) provides as follows:
 
         
 
                If an employee is temporarily, partially disabled and the 
 
              employer for whom the employee was working at the time of 
 
              injury offers to the employee suitable work consistent with 
 
              the employee's disability the employee shall accept the 
 
              suitable work, and be compensated with temporary partial 
 
              benefits.
 
         
 
              Iowa Code section 85.33(4) provides as follows:
 
         
 
                 If an employee is entitled to temporary partial benefits 
 
              under subsection 3 of this section, the employer for whom 
 
              the employee was working at the time of injury shall pay to 
 
              the employee weekly compensation benefits, as provided in 
 
              section 85.32, for and during the period of temporary 
 
              partial disability.
 
         
 
              Since claimant did not work for the employer for whom he was 
 
 
 
 
 
                   
 
                                                
 
                                                         
 
         working at the time of the injury, then Iowa Code section 85.33 
 
         which provides for temporary partial disability benefits has no 
 
         application to this case.  Two prominent authors in the field of 
 
         workers' compensation have commented on this point.  They state 
 
         that it should be noted that temporary partial disability is 
 
         appropriate only in those circumstances in which the employee 
 
         goes back to work the employer for whom employed when the injury 
 
         occurred.  Lawyer and Higgs, Iowa Workers' Compensation--Law & 
 
         Practice , 13-2, pp. 106 & 107.
 
         
 
              In addition, it should be noted that claimant denied that he 
 
         was employed by the Stagemans.  Claimant testified that he sold 
 
         the air conditioner parts for the same amount that he paid for 
 
         them (Tr. pp. 91-93, 96, 97 & 103).  Therefore, defendants 
 
         assertion that claimant was employed by Stagemans is 
 
         contradicted, controverted and rebutted.  Neither party called 
 
         the Stagemans to testify to resolve this conflict of evidence.  
 
         In conclusion, defendants claim for a credit based upon the 
 
         theory of temporary partial disability is without merit and 
 
         cannot be granted.
 
         
 
              Defendants contend that claimant's workers' compensation 
 
         benefits should be suspended due to missed medical appointments 
 
         on April 3, 1984, July 17, 1984, July 19, 1984, and August 13, 
 
         1985 (Tr. p. 11-16), citing Iowa Code section 85.39.  The fallacy 
 
         of this proposition is that none of these appointments were 
 
         scheduled as Iowa Code section 85.39 examinations.  By contrast, 
 
         they were simply routine periodic medical follow-up examinations.  
 
         Claimant further testified that he rescheduled these 
 
         examinations. Claimant testified that neither the doctor nor the 
 
         physical therapist complained about the missed appointments.  Dr. 
 
         Jardon did not testify that any of these appointments were 
 
         critical or that they prolonged claimant's medical treatment.  On 
 
         the contrary, Dr. Jardon indicated that claimant needed an 
 
         extensive long period of time without appointments to see what he 
 
         was able to to with his left ankle which included work and 
 
         nonwork activities.  Industrial Commissioner David E. Linquist 
 
         recently held that an employee's failure to attend some of his 
 
         medical appointments, followed by attendance at rescheduled 
 
         appointments, did not constitute a refusal of treatment and 
 
         warrant a suspension of benefits under Iowa Code section 85.39.  
 
         Assmann v. Blue Star Foods, file number 866389 (declaratory 
 
         ruling dated May 18, 1988).  Even though Dr. Jardon said that he 
 
         had hoped to discharge claimant on July 19, 1984, (Ex. 11) Dr. 
 
         Jardon ruled this out when he actually saw claimant in October of 
 
         1984 (Ex. 13).  When quizzed on this point in his deposition, Dr. 
 
         Jardon said, "It didn't happen quite that way.", due to the 
 
         difficulties that claimant was exhibiting in October of 1984 (Ex. 
 
         15, pp. 22 & 23).  Therefore, defendants contention that 
 
         claimant's benefits should be suspended under Iowa Code section 
 
         85.39 because of his failure to attend routine scheduled medical 
 
         appointments, which were rescheduled, is not correct.
 
         
 
              So much of Iowa Code section 85.34(1) which states that 
 
         claimant is to received benefits until the employee has returned 
 
                                                
 
                                                         
 
         to work is construed to mean the work that claimant was 
 
         performing at the time of the injury or some other substantial 
 
         gainful full-time employment.  Dr. Jardon verified that claimant 
 
         was not able to return to the kind of work that he was doing at 
 
         the time of the injury.  Earlier, Dr. Kratochvil said that 
 
         claimant was not able to return to the heavy work that he did 
 
         previously, at least at that time in November of 1983 (Ex. 7).
 
         
 
              So much of Iowa Code section 85.34(1) that states that 
 
         claimant is to receive benefits until the employee is medically 
 
         capable of returning to employment substantially similar to the 
 
         employment in which the employee was engaged at the time of the 
 
         injury is a factual determination in every case.  Substantially 
 
         similar employment, in this case, should at least be full-time 
 
         gainful employment from which the employee can earn a living.  In 
 
         this case, claimant never performed full-time gainful employment, 
 
         but rather performed part-time jobs and odd jobs of inherently 
 
         short term duration.
 
         
 
              Scavenging air conditioner parts for the Stagemans for three 
 
         months, July, August and September of 1983, for $853, whether 
 
         done as a favor, or for profit, is not full-time gainful 
 
         employment from which the employee could earn a living.  
 
         Scavenging air conditioner parts for himself as a self-employed 
 
         individual, in August of 1984, failed to sustain claimant and 
 
         cannot be construed as full-time gainful employment.  Working for 
 
         the bedding company for one or two days was not full-time gainful 
 
         employment.  Claimant was not able to perform this job because he 
 
         could not stand on cement every day, all day long, because of the 
 
         residual problems with his left ankle.  Tending bar for three 
 
         nights a week at Offutt Air Force Base for a confirmed alcoholic 
 
         and drug addict cannot be determined to be realistic full-time 
 
         gainful employment. First of all, it was not full time.  Second, 
 
         it was established that claimant was not able to perform this job 
 
         for any sustained period of time.  Light apartment maintenance 
 
         work was another on call type of odd job work which is not 
 
         full-time gainful employment, when he did it as a self-employed 
 
         person and also when he did it as an employee of Peterson 
 
         Brothers Realty.
 
         
 
              As a pure legal matter, claimant cannot be held to account 
 
         for the fact that he did not report these employments to 
 
         employer. There is nothing in Iowa Code sections 85.33 or 85.34 
 
         that requires an employee receiving temporary total disability 
 
         benefits or healing period benefits to, on his own initiative, 
 
         report part-time income, odd job income or any other income.  
 
         Defendants did not prove that they communicated to claimant that 
 
         he was under any duty to report any work or any income to them.  
 
         Furthermore, the workers' compensation law does not provide any 
 
         statutory credit for earnings which an employee might make while 
 
         receiving either temporary total disability benefits or healing 
 
         period benefits. Therefore, claimant was under no duty to 
 
         voluntarily and spontaneously report these part-time and odd job 
 
         employments or the income from them.  Likewise, claimant is not 
 
         liable for any offset or credit for what he earned.
 
                                                
 
                                                         
 
         
 
              If defendants wanted to terminate healing period benefits, 
 
         it was entirely possible for them to obtain a written statement 
 
         from the physician they authorized that either, (l) claimant 
 
         could return to work, (2) claimant had reached maximum medical 
 
         improvement, or (3) claimant could perform work in substantially 
 
         similar employment.  Defendants terminated claimants benefits 
 
         without this evidence. In addition, or in the alternative, 
 
         defendants could have requested still another examination and 
 
         evaluation by a doctor or their own choosing under either Iowa 
 
         Code section 85.27 or Iowa Code section 85.39.  Defendants did 
 
         not choose this course of action even though it was entirely 
 
         possible for them to do so before terminating claimant's 
 
         benefits.
 
         
 
              It is also noted that defendants did not offer any 
 
         vocational rehabilitation assistance to claimant after the 
 
         surgery, but rather terminated his benefits because he displayed 
 
         the motivation to do some odd job work scavenging air conditioner 
 
         parts. Effective vocational rehabilitation might have returned 
 
         claimant to substantial gainful full-time employment much sooner 
 
         in this case because claimant demonstrated that he was willing to 
 
         work.
 
         
 
              In his deposition he testified that he continued to try to 
 
         improve claimant's condition after September of 1984 and that it 
 
         did in fact improve after that date.  In this case, Dr. Jardon 
 
         gave claimant a rating on September 12, 1985 (Ex. 13). 
 
         Nevertheless, in his deposition Dr. Jardon testified that he 
 
         found that claimant had not obtained maximum medical improvement 
 
         at that time.  Furthermore, there is evidence that Dr. Jardon was 
 
         not completely sure of the amount of permanent partial disability 
 
         in September of 1985 because he said it was "about" 20 percent. 
 
         Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60 (Iowa 1981); 
 
         Thomas v. William Knudson & Sons, Inc., 349 N.W.2d 124 (Iowa 
 
         appeals 1984).  The assessment of an impairment rating is 
 
         considered to be an indication of maximum medical improvement; 
 
         however, in this case, the doctor specifically stated that he did 
 
         expect claimant to improve after September of 1984 and that 
 
         claimant did, in fact, improve after September of 1984. In 
 
         conclusion then, the tests for determination of healing period 
 
         benefits in this case is until it is medically indicated that 
 
         significant improvement from the injury is not anticipated.  Dr. 
 
         Jardon found improvement up until the time he discharged claimant 
 
         on July 17, 1986.
 
         
 
              Therefore, claimant is entitled to healing period benefits 
 
         from December 15, 1982, until July 1, 1986.  July 1, 1986, is the 
 
         date agreed upon by the parties as the appropriate terminal date 
 
         for healing period benefits.
 
         
 
              Therefore, claimant's permanent partial disability benefits 
 
         are to commence on July 1, 1986.  Claimant is entitled to 30 
 
         weeks of permanent partial disability benefits based upon a 20 
 
         percent rating of the left foot as stipulated to by the parties.
 
                                                
 
                                                         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was unable to return to the job that he was 
 
         performing at the time of the injury.
 
         
 
              That claimant did not and could not perform full-time 
 
         gainful employment substantially similar to the employment that 
 
         he was performing at the time of the injury.
 
         
 
              That based upon the testimony of Dr. Jardon, the treating 
 
         physician, and the only physician to testify on the subject of 
 
         maximum medical improvement, claimant continued to improve until 
 
         July 17, 1986, at the time he was discharged by Dr. Jardon.
 
         
 
              That all of the employments that claimant performed in the 
 
         evidence in this case were part-time or odd job employments for 
 
         short periods of time and did not demonstrate that his 
 
         recuperation was completed.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed, the following conclusions 
 
         of law are made.
 
         
 
              That the injury of December 14, 1982, was the cause of 
 
         temporary disability from December 15, 1982, until July 1, 1986.
 
         
 
              That claimant is entitled to healing period benefits for the 
 
 
 
 
 
 
 
                   
 
 
 
 
 
 
 
                                                
 
                                                         
 
         period from December 15, 1982, to July 1, 1986.
 
         
 
              That claimant is entitled to 30 weeks of permanent partial 
 
         disability benefits based upon a 20 percent functional impairment 
 
         to the left foot as stipulated to by the parties.
 
         
 
              That claimant's part-time and odd job earnings were not paid 
 
         by the employer for whom the employee was working at the time of 
 
         the injury and defendants are not entitled to a credit or offset 
 
         based upon these earnings.
 
         
 
              That claimant's failure to attend regularly scheduled 
 
         follow-up routine appointments is not the same as failure to 
 
         attend a scheduled Iowa Code section 85.39 examination.
 
         
 
              That claimant's failure to attend some of his routine 
 
         medical appointments, which were rescheduled and attended, did 
 
         not constitute a refusal of medical treatment under Iowa Code 
 
         section 85.39.
 
         
 
              That claimant was not under a statutory duty to voluntarily 
 
         and spontaneously report odd job and part-time earnings which he 
 
         received at the same time he was receiving healing period 
 
         benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:                              -
 
         
 
              That defendants pay to claimant one hundred eighty-four 
 
         point four two nine (184.429) weeks of healing period benefits 
 
         for the period from December 15, 1982, to July 1, 1986, at the 
 
         rate of one hundred fifteen and 06/100 dollars ($115.06) per week 
 
         in the total amount of twenty-one thousand two hundred twenty and 
 
         40/100 dollars ($21,220.40).
 
         
 
              That defendants pay to claimant thirty (30) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         fifteen and 06/100 dollars ($115.06) per week as stipulated to by 
 
         the parties in the total amount of three thousand four hundred 
 
         fifty-one and 80/100 dollars ($3,451.80) commencing on July 1, 
 
         1986.
 
         
 
              That defendants are entitled to a credit for eighty-nine 
 
         point one four (89.14) weeks of workers' compensation benefits 
 
         paid prior to hearing at the rate of one hundred fifteen and 
 
         06/100 dollars ($115.06) per week in the total amount of ten 
 
         thousand two hundred fifty-six and 79/100 ($10,256.79).
 
         
 
              That these benefits are due to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That the costs of this action are charged to defendants 
 
                                                
 
                                                         
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
              Signed and filed this 28th day of February, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. MCMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert V. Rodenburg
 
         Attorney at Law
 
         100-101 Park Bldg.
 
         Council Bluffs, IA  51501
 
         
 
         Mr. Theodore Stouffer
 
         Mr. David Blagg
 
         Attorneys at Law
 
         8805 Indian Hills Dr. STE 300
 
         Omaha, NE  68114
 
 
 
         
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                                     1401, 1402.40, 1700, 1704,
 
                                     1801.10, 1802
 
                                     Filed February 28, 1989
 
                                      WALTER R. McMANUS, JR.
 
                                      
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                      
 
                                      
 
        ROLAND DONOHO,
 
        
 
             Claimant,
 
                                             File No. 722150
 
        vs.
 
                                           A R B I T R A T I O N
 
        T & T SERVICES,
 
                                             D E C I S I O N
 
             Employer,
 
             
 
        and
 
        
 
        AETNA LIFE AND CASUALTY CO.,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        1401, 1402.40
 
        
 
             Claimant proved he was entitled to the healing period 
 
             benefits that he requested. The only doctor supported his 
 
             contention. There was no other medical evidence to controvert 
 
             it. The healing period for a fracture heal bone was from December 
 
             15, 1982 to July 1, 1986, according to the only medical evidence. 
 
             It was a long period but the doctor said it was justified.
 
        
 
        1700, 1704, 1801.10, 1802
 
        
 
             Defendants could not claim that payment of earnings by 
 
             employers, other than the employer for whom claimant was working 
 
             at the time of the injury were temporary partial disability 
 
             benefits.
 
        
 
            Likewise, defendants were not entitled to a credit or offset 
 
        for earnings claimant received doing part-time and odd job work 
 
        while he was receiving healing period benefits.
 
        
 
            Claimant had no statutory duty to voluntarily report these 
 
        part-time employment and odd job employment earnings to employer 
 
        on his own initiative when he was receiving healing period 
 
        benefits.
 
        
 
            That claimant's failure to attend regularly scheduled 
 
        follow-up routine appointments is not the same as failure to 
 
        attend a scheduled Iowa Code section 85.39 examination.
 
        
 
             That claimant's failure to attend some of his routine 
 
             medical appointments, which were rescheduled and attended, did 
 
             not constitutes a refusal of medical treatment under Iowa Code 
 
             section 85.39.