BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GILBERT JOE TRUMP,
 
         
 
              Claimant,
 
         
 
         vs                                           File No. 722320
 
         
 
         DICKEY TRANSPORT,                         A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         UNITED STATES FIDELITY &
 
         GUARANTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Gilbert Joe 
 
         Trump, claimant, against Dickey Transport, employer, and United 
 
         States Fidelity & Guaranty, insurance carrier, defendants, for 
 
         benefits as a result of an injury that occurred on December 8, 
 
         1982.  This corrected date of injury was stipulated to by the 
 
         parties at the time of the hearing instead of December 7, 1982.  
 
         A hearing was held in Des Moines, Iowa on July 20, 1987 and the 
 
         case was fully submitted at the close of the hearing.  The record 
 
         consists of joint exhibits B through I, claimant's exhibit one, 
 
         the testimony of Gilbert Joe Trump (claimant), and Jo Anne Trump 
 
         (claimant's wife).  Both attorneys submitted excellent briefs.
 
         
 
                                   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 sustained an injury on December 8, 1982 that 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         to be based upon a married person with five exemptions.
 
         
 
              That all requested medical benefits have been paid except 
 
         some prescription drugs (Exhibit I) and some mileage expenses 
 
         (Ex. 1) which were first presented for payment at the time of the 
 
         hearing.
 
         
 
              That defendants claim no credit pursuant to Iowa Code 
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page   2
 
         
 
         
 
         section 85.38(2) for previous benefits paid under an employee 
 
         nonoccupational group health plan.
 
         
 
              That defendants are entitled to a credit for workers' 
 
         compensation benefits paid prior to hearing for 145 weeks at 
 
         the rate of $278.62 per week.
 
         
 
              That defendants stated on the record at the hearing that 
 
         the issue of jurisdiction under Iowa Code section 85.71, 
 
         appearing on the hearing assignment order, was withdrawn by the 
 
         parties and was no longer an issue in the case.
 
         
 
              That the claim for penalty benefits under Iowa Code 
 
         section 86.13 remains asserted.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether the injury of December 8, 1982 was a cause of 
 
         temporary disability during a period of recovery.
 
         
 
              Whether the injury of December 8, 1982 was the cause of 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits during a period of recovery, and if so, the nature and 
 
         extent of benefit entitlement.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefit 
 
         entitlement.
 
         
 
              What is the proper weekly rate of compensation in the event 
 
         of an award.
 
         
 
              Whether claimant is entitled to payment for prescription 
 
         drugs as shown on Exhibit I.
 
         
 
              Whether claimant is entitled to payment for mileage expenses 
 
         as shown on Exhibit 1 for medical treatment and for vocational 
 
         rehabilitation training.
 
                          
 
                          SECTION 86.13 PENALTY BENEFITS
 
         
 
              Claimant's petition claims penalty benefits under Iowa Code 
 
         section 86.13.  This issue was not shown as an issue on the 
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page   3
 
         
 
         
 
         hearing assignment order.  It will therefore not be addressed in 
 
         this decision.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant was 33 years old at the time of the injury, married 
 
         and he is the father of three dependant children.  Claimant is a 
 
         high school graduate and he had completed one year of college 
 
         prior to the injury.  Since the injury, he has completed another 
 
         year of college and has one year to go in order to obtain an 
 
         accounting degree.  Claimant is presently enrolled in and is 
 
         attending college.
 
         
 
              Past employments include over-the-road truck driving, 
 
         service station attendant and construction work.  Claimant has 
 
         also performed shop work servicing trucks and he has operated his 
 
         own over-the-road trucking business as a self-employed 
 
         individual.  Claimant has also been employed as a stock agent 
 
         selling stocks, a crane operator and as a police officer.  
 
         Details of his past employments appear at interrogatory number 
 
         ten (Exhibit C, pages 14 & 15), his employment application with 
 
         this employer (Ex. D, p. 3) and in a summary he gave to the 
 
         vocational rehabilitation people (Ex. F, pp. 27, 29 & 30).  
 
         Claimant started to work for this employer, this last time, in 
 
         approximately October of 1981 (Ex. D).
 
         
 
              At 4 a.m. on December 8, 1982 while hauling a load of fruit 
 
         baskets claimant hit a patch of black ice, lost control of the 
 
         truck and turned over in the ditch.  The tractor was a total 
 
         loss.  Black ice was described as ice that is the same color as 
 
         the road.  Therefore it is not detectable by looking at it.  You 
 
         don't see it until you are on it.
 
         
 
              Claimant testified that he did not receive any emergency 
 
         medical treatment immediately after the accident.  He first 
 
         became stiff about 7 a.m. Claimant helped transfer his load to 
 
         another truck and delivered it on December 8, 1982.  He did 
 
         report to his employer that he was hurt and he was told to see 
 
         his family doctor.  J. A. Kuehn, D.O., took x-rays, prescribed 
 
         muscle relaxants and told claimant not to drive for two or three 
 
         weeks.  Claimant testified that he felt like he had a needle in 
 
         his back and he had shooting pains down his legs.
 
         
 
              Claimant testified that he returned to work in March of 1983 
 
         on a trial basis.  He said that he did load and unload trucks 
 
         during this period of time when he could not find help.  He 
 
         stated that after his last trip, in May of 1983, he could hardly 
 
         get out of the truck.  He was not able to work again and Dr. 
 
         Kuehn referred claimant to an orthopedic specialist, Glenn 
 
         Browning, D.O., who took an EMG and myelogram and said there was 
 
         damage to one or two discs.  Claimant related that this doctor 
 
         told him that his nerves were blocked off, put him to sleep and 
 
         went in and dug them out with a needle.  Claimant testified that 
 
         this procedure relieved the pain.  Claimant testified that 
 
         manipulation also relieved his pain.  Claimant testified that all 
 
         of the drugs for which he is claiming payment, which totaled 
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page   4
 
         
 
         
 
         $253.37, were prescribed by either Dr. Kuehn or Dr. Browning for 
 
         his back pain from this accident (Ex. I).  This testimony was not 
 
         controverted.  On the contrary, defendants' counsel stated that 
 
         these bills had never been presented for payment prior to the 
 
         hearing.  Exhibit one is an itemized list of mileage for which 
 
         claimant testified that he drove to the doctors or to go to 
 
         vocational rehabilitation at the request of the insurance 
 
         carrier.
 
         
 
              Claimant testified that Dr. Browning said he could return to 
 
         work on July 31, 1985 but that he could not drive a truck, lift 
 
         over 30 pounds or sit for over one hour.  Claimant testified that 
 
         defendants did not rehire claimant or offer him a job after July 
 
         31, 1985.  Claimant testified that he requested work from them 
 
         within his restrictions.  Claimant testified that he last saw Dr. 
 
         Browning in July of 1985.  He is not seeing Dr. Kuehn but is 
 
         getting prescriptions from him.
 
         
 
              Claimant began vocational rehabilitation in March of 1984 
 
         with Jewish Vocational Services in Kansas City at the request of 
 
         the insurance carrier.  Claimant testified that the insurance 
 
         carrier agreed to pay for his mileage and motel expenses.  He 
 
         said that he stayed with his aunt and there was no motel bill.  
 
         The insurance carrier did not pay for his mileage.  Claimant 
 
         added that his workers' compensation checks were interrupted 
 
         occasionally and stopped all together in June of 1985.  Claimant 
 
         testified that he has not presented any other workers' 
 
         compensation claims.
 
         
 
              The vocational rehabilitation counselor recommended college 
 
         in 1984.  Claimant investigated college in 1984 and in 1985 but 
 
         did not actually get started until the spring of 1986 according 
 
         to his testimony.  He explained the delay was due to the fact 
 
         that he could not walk the steps or sit that long until he 
 
         actually started.  The vocational rehabilitation reports also 
 
         indicate that claimant had financial problems producing the 
 
         tuition of $267.00 per semester.  Claimant is enrolled in a two 
 
         year program of management and accounting.  He stated that he is 
 
         a C student and does fair.  The grade reports for the fall of 
 
         1986 and the spring of 1987 show grades of B, C and D (Ex. F, p. 
 
         6).  Claimant testified that he hopes to graduate in July or 
 
         August of 1988.  He hopes to be employed in accounting after he 
 
         graduates.  He testified that after the injury and up to the time 
 
         of the hearing he has worked in filling stations, at a greenhouse 
 
         and on farms for his parents and his brothers.  Claimant did not 
 
         know and could not estimate how much he would earn after he 
 
         graduates.  Eventually he hoped to get into business management.
 
         
 
              Claimant testified that with respect to his back he has good 
 
         days and bad days.  He cannot drive a truck because of the 30 
 
         pound weight restriction and the prohibition against sitting for 
 
         more than one hour.  He stated that his endurance is increasing 
 
         in an eight hour day but he still gets sore, stiff and tired.  
 
         Quick movements, bouncing and sitting a long time cause a sharp 
 
         pain.  Claimant testified that the state of Missouri has paid for 
 
         part of his vocational rehabilitation because he is not able to 
 
         perform his old job of truck driving due to this injury.
 
         
 
              Claimant saw Scott Neff, D.O., in December of 1985 at the 
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page   5
 
         
 
         
 
         request of defendants.  He said that they visited five minutes 
 
         and Dr. Neff had him bend over once.  He granted that Dr. Neff 
 
         did order a CT scan in April of 1986 which is something that Dr. 
 
         Browning had not done.
 
         
 
              Claimant testified that in 1982, which was the last full 
 
         year the he worked, he earned $20,000.00.  He testified that he 
 
         did not have taxable earnings in 1983, 1984 or 1985.  In 1986, 
 
         claimant reported earnings of $5,000.00 as a gas station 
 
         attendant from August of 1986 to December 31, 1986.  He stated 
 
         that this also included his income for work in the greenhouse in 
 
         1986.  Claimant testified that he was unemployed at the time of 
 
         the hearing because the service station had closed.  Claimant 
 
         testified that he looked for jobs around home in Trenton, 
 
         Missouri and had made one application at Bethany, Missouri but 
 
         had not been successful in finding employment.  Claimant said 
 
         that he had not tried police work, because he believes it would 
 
         be to strenuous for him.  He said that he lives on a farm near 
 
         his parents and brothers and sisters near Trenton, Missouri.
 
         
 
              Jo Anne Trump, claimant's wife of 17 years, testified that 
 
         claimant is a hard worker and a good provider.  She said that her 
 
         husband is limited in his ability to do physically demanding work 
 
         since the injury.  His movements are limited.  He cannot sit a 
 
         long time.  He cannot ride in a car for a long time.
 
         
 
              A review of the medical evidence shows that claimant saw Dr. 
 
         Kuehn approximately eight times between December 15, 1982 and May 
 
         26, 1983.  Dr. Kuehn described contusion, acute ligamentous 
 
         strain and acute tenderness.  He prescribed medication and 
 
         performed manipulative back treatment.  Dr. Kuehn referred 
 
         claimant to Dr. Browning on June 20, 1983 (Ex. G, pp. 1-3).
 
         
 
              Dr. Browning made the following note at the time of 
 
         claimant's first visit on June 20, 1983.
 
         
 
                 Mr. Trump was seen today for evaluation of his back.  
 
              He has had problems with it for a long time.  He was in 
 
              a truck wreck and has had further problems since then.  
 
              He brings x-rays with him which reveal sacralization of 
 
              L5 with large batwing deformity and fusion of the 
 
              transverse process on one side causing excessive strain 
 
              mechanism.  He neurologically shows no deficits.  He is 
 
              somewhat restricted in motion.  We will place him on 
 
              non-steroidal antiinflammatories and also on Williams' 
 
              flexion exercises and we will be rechecking him again 
 
              in 2 weeks.
 
         
 
         (Ex. G, p. 9)
 
         
 
              An electromyograph and nerve conduction study on October 3, 
 
         1983 by Michael L. Kucera, D.O., failed to reveal any evidence of 
 
         radiculophathy, plexopathy or entrapment neuropathy (Ex. G, p. 
 
         11)
 
         
 
              On January 4, 1984 claimant was admitted to the hospital for 
 
         a myelogram.  The result of the myelogram is not in evidence (Ex. 
 
         G, pp. 17 & 18).  On the following day, January 5, 1984, Dr. 
 
         Browning administered manipulation under general anesthesia and 
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page   6
 
         
 
         
 
         injection of epideral morphine and steroids (Ex. G, pp. 18 & 19).  
 
         It was reported that this relieved claimant's pain.  When the 
 
         course of conservative treatment in 1984 did not produce positive 
 
         results, the manipulation under anesthesia was performed again on 
 
         March 29, 1985 by Dr. Browning (Ex. G, pp. 20 & 21).  Dr. 
 
         Browning then prescribed a course of physical therapy in his 
 
         office in April, May and June of 1985 (Ex. G, p. 16).  On July 
 
         31, 1985 Dr. Browning said that claimant could return to light 
 
         duty with a 35 pound weight restriction and stated that claimant 
 
         had a 25 percent permanent partial impairment of his back (Ex. G, 
 
         pp. 15 & 16).
 
         
 
              Claimant's vocational rehabilitation history begins in March 
 
         of 1984 with Jewish Vocational Services (JVS) in Kansas City on 
 
         March 29, 1984.  Claimant was wearing a lumbosacral support at 
 
         that time.  They noted that Dr. Browning had recommended that 
 
         claimant discontinue as a tractor truck driver because of the 
 
         constant jarring and bumping (Ex. F, pp. 44 & 45).  Dr. 
 
         Browning's return to work evaluation which he completed on June 
 
         14, 1984 was very limiting.  Dr. Browning said that claimant 
 
         could not work eight hours a day (Ex. F, p. 40).  On June 18, 
 
         1984 JVS recommended that claimant go to college at Trenton 
 
         Junior College even though it would be a difficult adjustment for 
 
         an adult and would require dedication and hard work (Ex. F, pp. 
 
         37-39).  On August 18, 1984, Mike Horan, the vocational 
 
         rehabilitation specialist, reported that Dr. Browning indicated 
 
         that claimant had reached maximum medical improvement and had 
 
         issued certain restrictions; however, Dr. Browning did not issue 
 
         an impairment rating at that time.  The specialist also indicated 
 
         that claimant intended to enroll in Trenton Junior College (Ex. 
 
         F, pp. 34 & 35).  At the time of his next report, in January of 
 
         1985, the vocational rehabilitation specialist reported that Dr. 
 
         Browning said that claimant was "making progress" and "gaining 
 
         strength" and that the doctor still had not issued a disability 
 
         rating (Ex. F, p. 33).  On March 18, 1985 claimant and the 
 
         specialist together saw Dr. Browning again and requested a 
 
         release to return to work.  Dr. Browning refused because he 
 
         wanted to repeat the epideral injection and spinal manipulation 
 
         again to increase claimant's functional level and to decrease his 
 
         pain.  After that, Dr. Browning wanted a six weeks physical 
 
         therapy program through his own office and then he would provide 
 
         a disability rating and a work release (Ex. F, p. 31).  The 
 
         specialist reported that claimant last saw Dr. Browning on July 
 
         31, 1985.  The specialist said that claimant was reluctant to 
 
         look for work (Ex. F, pp. 25 & 26).  Terri Schmitz, claimant's 
 
         new rehabilitation specialist, wrote to Dr. Browning for a 
 
         rating, a release to return to work evaluation and a return to 
 
         work date.  Dr. Browning replied on July 30, 1985 as follows.
 
         
 
                 This letter is in reference to G. Joseph Trump in 
 
              answer to your letter of July 2, 1985.  As you remember 
 
              from our phone conversation of June 26, 1985; I stated 
 
              that Mr. Trump would not be able to return to his 
 
              former type of employment as a truck driver, but he 
 
              should be able to perform other types of jobs and 
 
              duties at that time or at least would be available for 
 
              further testing and could perform light duty work, 
 
              should not lift over 35 lbs. on an occasional basis and 
 
              only up to 35 lbs. on a repetitive basis.  While I feel 
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page   7
 
         
 
         
 
              that he could probably work an 8 hour shift at this 
 
              time, it would be required that he be allowed to walk 
 
              and sit and stand intermittently during that time.
 
         
 
                 I feel that he has a permanent partial disability of 
 
              25% of his back.  I hope that this clarifies any 
 
              problem.
 
         
 
         (Ex. F, p. 17)
 
         
 
              On August 28, 1985 Schmitz reported that claimant was 
 
         reluctant to look for work.  He preferred to go to junior 
 
         college.  He talked about it but never started allegedly due to a 
 
         lack of funds (Ex. F, pp. 15 & 16).  Schmitz filed this final 
 
         report on December 2, 1985.
 
         
 
                                   Final Report
 
         
 
              Mr. Trump has not responded to letters or telephone 
 
              calls from this counselor; however, his mother 
 
              indicated he is not going to school, but is working 
 
              around the family farm.  She also reported he has 
 
              occasional back pains, but these come and go and are 
 
              not major problems.
 
         
 
                             *     *     *     *     *
 
         
 
                                  Recommendations
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page   8
 
         
 
         
 
         
 
              As Mr. Trump has been released by Dr. Browning and Mr. 
 
              Trump has not responded to calls or letters from this 
 
              specialist, it would appear he is not interested in 
 
              further vocational exploration or assistance, 
 
              therefore, JVS will be closing our file at this time.
 
         
 
         (Ex. F, p. 12)
 
         
 
              On January 13, 1986 the JVS program director wrote to 
 
         claimant's attorney.  She pointed out that they had instructed 
 
         claimant how to contact Missouri vocational rehabilitation 
 
         assistance and how to contact the college financial aid office 
 
         for a Pell Grant.  She added that claimant never did follow 
 
         through on either one of these suggestions.  She pointed out that 
 
         JVS counselors had stressed to claimant that he should begin his 
 
         education while he was still receiving workers' compensation 
 
         payments but claimant did not do so.  She also stated that JVS 
 
         had promised to help claimant with job placement but claimant did 
 
         not respond to their telephone calls (Ex. F, pp. 7-9).  Claimant 
 
         did finally enter college in the fall of 1986 with the aid of the 
 
         Missouri division of vocational rehabilitation (Ex. F, pp. 1-5).  
 
         He has completed two semesters of college, namely the fall of 
 
         1986 and the spring of 1987 (Ex. F, p. 6).
 
         
 
              Defendants eventually had claimant examined by Scott B. 
 
         Neff, D.O., on December 30, 1985.  Dr. Neff was critical of the 
 
         manipulations under anesthesia.  He declared maximum healing 
 
         should have ended one year after claimant's injury which would 
 
         have been December of 1984 which was one year prior to the time 
 
         of his examination in December of 1985.  Dr. Neff stated claimant 
 
         had a ten percent impairment of his back according to the guides 
 
         published by the American Medical Association.  Dr. Neff said 
 
         that some persons can return to truck driving if they are able to 
 
         avoid the heavy unloading.  He said that claimant could return to 
 
         many activities.  He said claimant has stiffness and backaches.  
 
         He said that claimant should avoid heavy lifting and should not 
 
         shovel.  Dr. Neff recommended a CAT scan and back school for 
 
         claimant (Ex. E, pp. 1-3).  Claimant attended back school on June 
 
         6, 1986 and again on June 13, 1986 (Ex. E, pp. 4 & 5).  The CAT 
 
         scan which Dr. Neff ordered showed the following:
 
         
 
         "Findings:  There is diffusely bulging disc material seen at L3-L 
 
         and L4-L5.  Mild to moderate degenerative changes are seen in the 
 
         posterior facets of the lower lumbar spine.  No evidence of 
 
         herniated disc.  Nothing for central canalicular stenosis or 
 
         lateral foraminal stenosis.O (Ex. E, p. 6).  Claimant's wage 
 
         records have been introduced into evidence for a proper 
 
         computation of the rate (Ex. B).  More will be presented on the 
 
         rate in the next section of this decision.
 
         
 
              Claimant made a claim for transportation expenses to see the 
 
         vocational rehabilitation specialists at JVS (Ex. 1, p. 1).
 
         Claimant also presented an itemized statement of mileage expense 
 
         to come to Des Moines for medical examination and evaluation at 
 
         the request of defendants (Ex. 1, p. 2).
 
         
 
              12-30-85       Dr. Neff, Des     230 mi.     $55.20
 
                             Moines, Iowa
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page   9
 
         
 
         
 
         
 
              4-28-86        Iowa Lutheran     230 mi.     $55.20
 
                             Hospital, Des
 
                             Moines, Iowa and
 
                             Dr. Neff, Des
 
                             Moines, Iowa
 
         
 
              6-13-86        Physical Therapy  230 mi.     $55.20
 
                             Consultants, Des
 
                             Moines, Iowa
 
         
 
                                                Total     $165.60
 
         
 
         (Ex. I)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 8, 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 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).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.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 51, 
 
         257 (1963).
 
         
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page  10
 
         
 
         
 
              The injury of December 8, 1982 was the cause of claimant's 
 
         time off work for a period of recovery from the date of the 
 
         injury, December 8, 1982 until March 2, 1983, the date that 
 
         claimant returned to work (Form 2A, industrial commissioner's 
 
         file; Ex. B, p. 3).
 
         
 
              The injury was also the cause of claimant's time off work 
 
         for a period of recovery from May 19, 1983, when claimant 
 
         terminated his employment with employer because he was unable to 
 
         work, until July 31, 1985 when Dr. Browning formally released 
 
         claimant to return to work and gave claimant a permanent 
 
         functional impairment rating.  Armstrong Tire & Rubber Co. v. 
 
         Kubli, Iowa App., 312 N.W.2d 60 (Iowa 1981); Thomas v. William 
 
         Knudson & Son, Inc., 349 N.W.2d 124 (Iowa App. 1984).
 
         
 
              Claimant is entitled to healing period benefits for both of 
 
         these periods of time.
 
         
 
              It is true that at one point, on August 16, 1984, Dr. 
 
         Browning told the vocational rehabilitation specialist that 
 
         claimant had reached maximum medical improvement and Dr. Browning 
 
         imposed restrictions (Ex. F, pp. 34 & 35).  However, Dr. Browning 
 
         refused to give a permanent functional impairment rating at that 
 
         time.  Also, he continued to treat claimant and subsequently 
 
         noted that claimant was "making progress" and "gaining strength" 
 
         on his next report (Ex. F, p. 33).  Dr. Neff's statement that 
 
         claimant should have reached maximum medical improvement a year 
 
         after the injury may be correct.  Claimant's period of recovery 
 
         up to one and one-half years was unusually long in comparison 
 
         with other back injuries of this nature.  However, when the 
 
         opinion is rendered three years after the injury it does not 
 
         carry as much weight as a treating physician who was seeing 
 
         claimant regularly in conjunction with a vocational 
 
         rehabilitation specialist who was present during most of these 
 
         examinations by Dr. Browning.  Dr. Neff's opinion would have been 
 
         more valuable if it had been rendered closer to the point in the 
 
         recovery that it referred to rather than two years later.  
 
         Therefore, deference is given to the treating physician, Dr. 
 
         Browning, based upon the evidence presented in this case.  
 
         Rockwell Graphic-Systems, Inc. v. Prince, 366 N.W.2d 187, 192 
 
         (1985).
 
         
 
              The operative phrase in industrial disability is loss of 
 
         earning capacity.  Ver Steegh v. Rolscreen, IV Iowa Industrial 
 
         Commissioner Report 377 (1984).
 
         
 
              This injury was the cause of permanent disability.  Dr. 
 
         Browning awarded a 25 percent permanent functional impairment 
 
         rating.  Dr. Browning imposed restrictions of no more employment 
 
         as a truck driver and a weight restriction of 35 pounds.  Dr. 
 
         Neff awarded a 10 percent permanent functional impairment rating. 
 
          He felt that claimant should avoid heavy lifting and should not 
 
         shovel.
 
         
 
              With truck driving ruled out, claimant was forced from the 
 
         method he had used most in the last 15 years to make a living.  
 
         Claimant followed Dr. Browning's advice and did not drive a 
 
         truck.  Dr. Neff indicated that claimant might try to drive a 
 
         truck because others do it.  Claimant testified that he could not 
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page  11
 
         
 
         
 
         drive a truck because he could not stand the bouncing (Ex. E).  
 
         Therefore, it is determined that claimant is foreclosed from the 
 
         occupation of over-the-road truck driving which he had followed 
 
         for the last 15 years and this will cause a sizable reduction in 
 
         his earning capacity.  Michael v. Harrison County, Thirty-fourth 
 
         Biennial Report of the industrial Commissioner 218, 220 (Appeal 
 
         Decision 1979).
 
         
 
              Claimant was age 33 at the time of the injury and age 37 at 
 
         the time of the hearing.  Claimant is young enough to be 
 
         retrained.  The feasibility of retraining is one of the 
 
         considerations involved in determining industrial disability.  
 
         Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
         Commissioner Report 74, 78 (1984).  Claimant had completed high 
 
         school and one year of college prior to the injury.  Claimant has 
 
         gone back to college although he was very slow in getting 
 
         started.  He was urged to go in 1984 but didn't get started until 
 
         1986.  Claimant hoped to graduate with an accounting degree in 
 
         1988.  His long term goal is business management.  In the 
 
         employer's favor is the fact that employer offered serious 
 
         vocational rehabilitation to claimant and paid claimant a 
 
         reasonable amount of workers' compensation benefits for this 
 
         injury.  Schelle v. Hygrade Food Products, Thirty-third Biennial 
 
         Report of the Industrial Commissioner 121 (1977).  Claimant was 
 
         admonished by the vocational rehabilitation specialist to get his 
 
         college training started while he was receiving workers' 
 
         compensation payments.  Claimant was actually paid workers' 
 
         compensation payments for a total of 145 weeks.
 
         
 
              Even though claimant cannot return to over-the-road truck 
 
         driving he has other skills and a varied employment background.  
 
         Claimant has experience with construction, sales, maintenance, 
 
         police work and self-employment.  His past employments provide 
 
         him with a number of qualifications and work experiences.  
 
         Claimant apparently knows how to farm also.  At several points in 
 
         the medical evidence it was indicated that claimant had worked on 
 
         farms.  He had strained himself lifting bales and lifting a car 
 
         out of a ditch.  He admitted to helping his parents and brothers 
 
         and sisters farm by driving a tractor.
 
         
 
              Dr. Browning's award of a 25 percent permanent functional 
 
         impairment rating seems high when compared with other cases of 
 
         this nature.  Dr. Browning did not state how he arrived at this 
 
         number.  Dr. Neff's award of a ten percent permanent functional 
 
         impairment rating appears to be more reasonable, particularly for 
 
         a back injury that has not required surgery and for which no 
 
         surgery is contemplated.  Dr. Neff stated that he used the AMA 
 
         guides.  Furthermore, the sacralization that Dr. Browning 
 
         initially described is normally a congenital defect.  Also, Dr. 
 
         Neff's CAT scan showed a considerable amount of degeneration for 
 
         claimant's young age.  Industrial disability can be equal to, 
 
         less than or greater than functional impairment.  Lawyer & Higgs, 
 
         Iowa Workers, Compensation -- Law & Practice, section 13-5, page 
 
         116 and 1987 supplement page 20.
 
         
 
              The fact that claimant earned $20,000.00 in 1982 and only 
 
         $5,000.00 in 1986 is not a real standard.  Claimant has not tried 
 
         to work full time since the injury.  Claimant was a student for 
 
         one-half of the year in 1986.
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page  12
 
         
 
         
 
         
 
              Based on the foregoing discussion and all of the factors 
 
         that are used to determine industrial disability, it is 
 
         determined that claimant has sustained a 30 percent industrial 
 
         disability to the body as a whole.
 
         
 
              Defendants' calculation of the proper rate is not correct.  
 
         It leaves off the thirteenth week prior to the injury and 
 
         considered the $200.00 of vacation pay as a week of earnings 
 
         whereas it is actually a payment of accumulated vacation time 
 
         rather than a separate weeks earnings.  Claimant had earnings 
 
         that same week of October 28, 1982 in the amount of $431.04 (Ex. 
 
         B, p. 2).
 
         
 
              Claimant's attorney correctly computed the rate in his brief 
 
         at paragraph six as follows.
 
         
 
                 Claimant's rate of weekly compensation is $278.62. 
 
              Claimant's last day of work was December 8, 1982.  He 
 
              received pay for that period of work on December 16, 
 
              1982, according to the payroll records (Combined 
 
              Exhibit B).  Claimant was paid 16 cents per mile 
 
              (claimant's Petition, testimony of claimant).  
 
              Consequently, the claimant is paid by his output so his 
 
              earnings are properly computed in accordance with 
 
              Section 85.36(6) of the 1987 Code of Iowa which 
 
              provides that an employee paid on the basis of output 
 
              should have his weekly earnings computed by dividing by 
 
     
 
         
 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page  13
 
         
 
         
 
              13 the earnings not including overtime or premium pay 
 
              of said employee earned in the employ of the employer 
 
              in the last completed period of 13 consecutive weeks 
 
              immediately preceding the injury.
 
         
 
                 The last completed period of 13 consecutive calendar 
 
              weeks preceding the injury would include the checks 
 
              issued to Joe Trump on September 23, 1982, through 
 
              December 16, 1982.  The October 28, 1982, payment of 
 
              $200.00 was vacation pay which he received for working 
 
              during his scheduled vacation.  Likewise, the payment 
 
              of $107.18 on December 9, 1982, should be disregarded 
 
              as it was reimbursement for expense receipts turned in 
 
              by Joe Trump.  However, the $20.00 paid on December 2, 
 
              1982, as holiday pay should be included in accordance 
 
              with the Commissioner's decision in Stevens v. John 
 
              Morrell Company, Vol I, No. 1 Iowa Industrial 
 
              Commissioner Decision 236 (1984) which stated that 
 
              holiday pay is a regular payment as opposed to an 
 
              irregular bonus, overtime or premium pay.  Except for 
 
              the payment of $200.00, $107.18, and $20.00 previously 
 
              discussed, all other payments were regular salary 
 
              payments.
 
         
 
                 Referring then to Combined Exhibit B, the gross pay 
 
              of the claimant for the applicable pay period would be 
 
              as follows:
 
         
 
                                     Date of
 
              Week Number            Paycheck          Gross Weekly Pay
 
         
 
              Week 1                 9-23-82               $506.78
 
              Week 2                 9-30-82                308.04
 
              Week 3                 10-7-82                489.02
 
              Week 4                 10-14-82               486.88
 
              Week 5                 10-21-82               413.90
 
              Week 6                 10-28-82               431.04
 
              Week 7                 11-4-82                339.76
 
              Week 8                 11-11-82               748.86
 
              Week 9                 11-18-82               401.66
 
              Week 10                11-25-82               305.06
 
              Week 11                12-2-82                415.00
 
              Week 12                12-9-82                439.88
 
              Week 13                12-16-82               489.14
 
         
 
              Total Gross Weekly pay for
 
              13 weeks immediately preceding
 
              injury on December 8, 1982                 $5,775.02
 
         
 
              $5,775.02 divided by 13 equals $444.23
 
         
 
                 The average gross weekly wage is of Joe Trump for 
 
              the 13 weeks immediately prior to his injury is 
 
              $444.23.  The parties have stipulated in the Pretrial 
 
              Report and Order that Gilbert Joe Trump is married and 
 
              has five exemptions.  Referring then to the Worker's 
 
              Compensation Benefit Schedule effective July 1, 1982, 
 
              on page 45 referring to gross weekly wages of $444.00 
 
              for a married person with five dependents is $278.62.  
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page  14
 
         
 
         
 
              This amount of  $278.62 is the same amount which the 
 
              defendants have compensated claimant.  Computation of 
 
              gross weekly wage is in accordance with the applicable 
 
              statutes.  The rate of compensation is in accordance 
 
              with the Worker's Compensation Benefits Schedule 
 
              published by the Iowa Industrial Commissioner on July 
 
              1, 1982.  Consequently, the proper rate of compensation 
 
              for the claimant is $278.62.
 
         
 
         (Claimant's Brief, paragraph 6)
 
         
 
              The carrier paid claimant at the rate of $278.62 per week.  
 
         Why defense counsel disputed the rate at the time of the hearing 
 
         was not immediately clear.
 
         
 
              Claimant testified that all of the prescriptions claimed 
 
         were prescribed by either Dr. Kuehn or Dr. Browning for this 
 
         injury.  This testimony was not disputed.  Therefore, claimant 
 
         has sustained the burden of proof that he is entitled to payment 
 
         for these prescriptions in the amount of $253.37 (Ex. I).
 
         
 
              Claimant is not entitled to mileage for vocational 
 
         rehabilitation training.  Vocational rehabilitation is not one of 
 
         the authorized itemized expenses in Iowa Code section 85.27 as a 
 
         medical expense; nor is it one of the items that the legislature 
 
         provided for in Iowa Code section 85.70.
 
         
 
              Claimant is entitled to the medical mileage to travel to and 
 
         from Des Moines to see Dr. Neff at defendants request in the 
 
         amount of $165.65.
 
         
 
                                  FINDS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was off work for a period of recovery due to 
 
         this injury from December 8, 1982 until March 2, 1983 and again 
 
         from May 19, 1983 until July 31, 1985.
 
         
 
              That Dr. Browning stated that claimant sustained a 25 
 
         percent permanent functional impairment and Dr. Neff said that 
 
         claimant sustained a ten percent permanent functional 
 
         impairment.
 
         
 
              That the proper rate of compensation is $278.62 per week.
 
         
 
              That claimant incurred $253.37 in prescription drugs due to 
 
         this injury.
 
         
 
              That claimant incurred $165.65 in medical mileage due to 
 
         this injury.
 
         
 
              That claimant sustained an industrial disability of 30 
 
         percent of the body as a whole.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page  15
 
         
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed the following conclusions 
 
         of law are made.
 
         
 
              That the injury was the cause of temporary disability during 
 
         a period of recovery.
 
         
 
              That the injury was the cause of permanent disability.
 
         
 
              That claimant is entitled to healing period benefits from 
 
         December 8, 1982 until March 2, 1983 and again from May 19, 1983 
 
         until July 31, 1985.
 
         
 
              That claimant is entitled to 150 weeks of permanent partial 
 
         disability benefits based upon a 30 percent industrial disability 
 
         to the body as a whole.
 
         
 
              That the proper rate of compensation is $278.62  per  week.
 
         
 
              That claimant is entitled to $253.37 in prescription drug 
 
         expense.
 
         
 
              That claimant is entitled to $165.65 in medical mileage 
 
         expense.
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant healing period benefits for 
 
         twelve point two eight six (12.286) weeks for the period from 
 
         December 8, 1982 to March 2, 1983 and one hundred fourteen point 
 
         five seven one (114.571) weeks of healing period benefits for the 
 
         period from May 19, 1983 to July 31, 1985, a total of one hundred 
 
         twenty-six point eight five seven (126.857) weeks of healing 
 
         period benefits, at the rate of two hundred seventy eight and 
 
         62/100 dollars ($278.62) per week in the total amount of 
 
         thirty-five thousand three hundred forty-four and 90/100 dollars 
 
         (35,344.90).
 
         
 
              That defendants pay to claimant one hundred fifty (150) 
 
         weeks of permanent partial disability benefits based upon an 
 
         industrial disability of thirty (30) percent of the body as a 
 
         whole at the rate of two hundred seventy-eight and 62/100 dollars 
 
         ($278.62) per week in the total amount of forty-one thousand 
 
         seven hundred ninety-three dollars (41,793.00) beginning on July 
 
         31, 1985.
 
         
 
              That defendants are entitled to a credit for one hundred 
 
         forty-five (145) weeks of workers' compensation benefits paid 
 
         prior to the hearing at the rate of two hundred seventy-eight and 
 
         62/100 dollars ($278.62) per week in the total amount of forty 
 
         thousand three hundred ninety-nine and 90/100 dollars 
 
         ($40,399.90).
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 

 
         
 
         
 
         
 
         TRUMP V. DICKEY TRANSPORT
 
         Page  16
 
         
 
         
 
              That defendants pay to claimant two hundred fifty-three and 
 
         37/100 dollars ($253.37) for prescription drug expense and one 
 
         hundred sixty-five and 65/100 dollars ($165.65) in medical 
 
         mileage.
 
         
 
              That defendants pay the cost 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.
 
         
 
              That if claimant desires a second bifurcated hearing on the 
 
         issue of Iowa Code section 86.13 penalty benefits that claimant 
 
         arrange a conference call with the prehearing deputy and 
 
         defendants' attorney for that purpose within ten (10) days of the 
 
         signing and filing of this decision.
 
         
 
              Signed and filed this 4th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Richard L. Ambelang
 
         Attorney at Law
 
         1920 Court Avenue
 
         Chariton, Iowa 50049
 
         
 
         Mr. Ross H. Sidney
 
         Ms. Iris J. Post
 
         Attorneys at Law
 
         2222 Grand Avenue
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40; 1802; 1803
 
                                                 2505; 3002; 3102
 
                                                 Filed April 4, 1988
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GILBERT JOE TRUMP,
 
         
 
             Claimant,
 
         
 
         vs                                      File No.  722320
 
         
 
         DICKEY TRANSPORT,                   A R B I T R A T I 0 N
 
         
 
              Employer,                         D E C I S I 0 N
 
         
 
         and
 
         
 
         UNITED STATES FIDELITY &
 
         GUARANTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40; 1802; 1803
 
         
 
              Truck overturn was the cause of claimant's temporary and 
 
         permanent disability.  He was awarded benefits based on treating 
 
         physician's period of recovery and defendant's evaluating 
 
         physician's percent of impairment.
 
         
 
         2505
 
         
 
              Claimant awarded prescriptions and medical mileage.  No 
 
         allowance for mileage for vocational rehabilitation because 
 
         sections 85.27 and 85.70 make no allowance for it.
 
         
 
         3002
 
         
 
              Claimant's attorney correctly calculated rate.
 
         
 
         3102
 
         
 
              Insurance carrier provided serious and beneficial vocational 
 
         rehabilitation and workers' compensation benefits so claimant 
 
         could go to school.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GILBERT JOE TRUMP,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         DICKEY TRANSPORT,                          File No. 722320
 
         
 
              Employer,                               A P P E A L
 
         
 
         and                                          R U L I N G
 
         
 
         UNITED STATES FIDELITY &
 
         GUARANTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
              On May 25, 1988 claimant filed a motion to dismiss 
 
         defendants' appeal in the above entitled action.
 
         
 
              Defendants have not filed an affidavit as required by 
 
         section 86.24 of the Code of Iowa.  From claimant's motion and 
 
         review of the file it is also apparent that defendants have not 
 
         complied with Division of Industrial Services Rule 343-4.30.
 
         
 
              WHEREFORE, claimant's motion to dismiss is sustained.
 
         
 
         
 
              Signed and filed this 3rd day of June, 1988.
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                               INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Richard L. Ambelang
 
         Attorney at Law
 
         1920 Court Avenue
 
         Chariton, Iowa 50049
 
         
 
         Mr. Ross H. Sidney
 
         Ms. Iris J. Post
 
         Attorneys at Law
 
         2222 Grand Avenue
 
         P.O. Box 10434
 
         Des Moines, Iowa 50306
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         ROBERT W. ROSE,
 
         
 
              Claimant,
 
                                                    FILE NO. 722500
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         PEOPLES NATURAL GAS COMPANY,
 
                                                    D E C I S I O N
 
         
 
             Employer,
 
             Self-Insured
 
             Defendant.
 
         _________________________________________________________________
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Robert W. 
 
         Rose against Peoples Natural Gas Company, his self-insured 
 
         employer.  The case was heard at Council Bluffs, Iowa on December 
 
         16, 1986 and was fully submitted upon conclusion of the hearing.  
 
         The record in the proceeding consists of testimony from Robert W. 
 
         Rose; claimant's exhibits 1 through 5; and defendant's exhibits A 
 
         through E. Exhibit 1 is records from claimant's initial 
 
         hospitalization on December 24, 1982.  Exhibit 2 is a series of 
 
         reports from Raymond G. Lewis, M.D. Exhibits 3 and 4 are reports 
 
         from James W. Dinsmore, M.D. Exhibit 5 is a deposition of Dr. 
 
         Lewis taken July 9, 1986.  Defendant's exhibit A is the 
 
         deposition of Robert H. Westfall, M.D., taken September 4, 1986.  
 
         Exhibits B and C are additional records from Jennie Edmundson 
 
         Hospital dealing with the December 24, 1982 admission.  Exhibit D 
 
         is Dr. Westfall's standard surgeon's report.  Exhibit E is a 
 
         drawing made by claimant at hearing which purports to show his 
 
         position at the time of the explosion from which this claim 
 
         resulted.
 
         
 
                                   ISSUES
 
         
 
              Claimant seeks compensation for permanent partial disability 
 
         based upon injuries allegedly sustained in an explosion which 
 
         occurred on December 24, 1982.  All other benefits, including 
 
         section 85.27 benefits and weekly compensation for the time 
 
         claimant has been off work, have been voluntarily paid by the 
 
         employer.  Claimant's claim for permanent partial disability 
 
         deals with headaches and complaints of pain in his neck and 
 
         shoulder region which he attributes to the explosion.  The 
 
         primary issues identified for determination at the time of 
 
         hearing are whether the current complaints are a result of the 
 
         explosion and whether such complaints constitute an injury which 
 
         arose out of and in the course of employment.  In the event that 
 
         compensability for the complaints is found, then the issue 
 
         regarding the degree of permanent partial disability is to be 
 
         decided.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 

 
              The following is only a brief summary of pertinent evidence.  
 
         All evidence received at hearing was considered when deciding the 
 
         case.
 
         
 
              Robert Rose is a 58 year old man who is currently employed 
 
         as a welder by People's Natural Gas Company.  He has been so 
 
         employed for approximately 20 years.  On December 24, 1982, Rose 
 
         was on call for emergencies which involved responding to 
 
         suspected gas leaks after normal business hours in the Council 
 
         Bluffs, Iowa district.  Shortly after 4:00 p.m. on that date he 
 
         was called out to the First Federal Savings and Loan Building 
 
         located at 32nd and Broadway.  While at the scene an explosion 
 
         occurred which demolished the building and injured both claimant 
 
         and a co-employee.  Claimant testified that he suffered burns on 
 
         his face and hands, had glass embedded in his legs and face and 
 
         that he was thrown around by the impact but was not knocked down.  
 
         Claimant was taken to Jennie Edmundson Hospital in Council Bluffs 
 
         where his primary treating physician was Robert H. Westfall, M.D. 
 
         Claimant's lacerations were sutured and burns were treated.  He 
 
         was discharged from the hospital on December 27, 1982 and then 
 
         returned to work on January 9, 1983.
 
         
 
              Claimant testified that he now experiences headaches and 
 
         pain in his neck.  He takes pain medication on a daily basis.  
 
         Claimant stated that his complaints, including dizziness, are 
 
         most acute if he works with his hands over his head, works 
 
         looking up or when he tries to hold his head up while working 
 
         when laying down.  He stated that it causes problems when he 
 
         tries to weld pipe from a laying position.  He testified that the 
 
         nature of his duties has changed somewhat since the injury but 
 
         that he still performs the same type of work and is able to 
 
         perform all of his assigned duties.  In recent years the extent 
 
         of his work as an inspector has increased.  Claimant testified 
 
         that his pay has not decreased and that he is the only welder in 
 
         the Council Bluffs district.  Claimant stated that he has a high 
 
         school equivalency certificate but has welded since he was 16 
 
         years old.  He feels that his job is presently secure and he 
 
         plans to retire when he reaches age 65.
 
         
 
              Claimant testified that he had considerable pain in his back 
 
         and neck at the time he was initially hospitalized and that he 
 
         reported it to Dr. Westfall.  He stated that Dr. Westfall told 
 
         him that he should hurt all over after what he had been through.  
 
         Claimant testified that the symptoms continued and that in the 
 
         spring of 1983 he sought care from Raymond G. Lewis, M.D., his 
 
         family doctor.  After several months of treatment by medication, 
 
         ultrasound and massage did not seem to help he was referred to 
 
         James W. Dinsmore, M.D., an orthopedic surgeon.  Dr. Dinsmore 
 
         prescribed additional medication and cervical traction.
 
         
 
              Claimant testified that he was in good health and had not 
 
         had problems with his neck, back or headaches prior to the 
 
         explosion.  He denied sustaining any subsequent trauma.
 
         
 
              Claimant testified that at the time of the explosion he was 
 
         located between the building and his van.  Claimant denied 
 
         telling the people at the hospital that the van had protected 
 
         part of his body from the blast but that they seemed to have the 
 
         idea that it had.  Claimant stated that he was heavily clothed at 
 
         the time and that the clothing protected part of his body.
 
         
 
              Defendant's exhibit A is the deposition of Dr. Westfall.  
 
         Dr. Westfall, a general surgeon, provided claimant's initial 
 
         medical care following the injury.  His treatment of claimant 
 

 
         
 
         
 
         
 
         ROSE V.PEOPLES NATURAL GAS COMPANY
 
         Page   3
 
         
 
         
 
         commenced on December 25, 1982 and ended on January 7, 1983 (Ex.  
 
         A, pp. 4-6).  Dr. Westfall observed claimant to have burns and 
 
         multiple lacerations to his face, forehead, lower extremities and 
 
         the backs of his hands (Ex.  A, pp. 5 & 8).  Dr. Westfall felt 
 
         that the injuries were caused by flying glass and debris from the 
 
         explosion (Ex.  A, pp. 8 & 9).  Exhibit B, the admission note 
 
         from the hospital, indicates that claimant had stated that he was 
 
         standing opposite his truck with the door open when the explosion 
 
         occurred and that part of his body was protected by the truck.  
 
         Dr. Westfall made a similar indication in his deposition (Ex. A, 
 
         p.9).
 
         
 
              Dr. Westfall testified that claimant made no complaint of 
 
         pain in his back or neck during the course of treatment and that 
 
         in his opinion claimant had not sustained any injury to his neck 
 
         or back and that he expected no permanent disability to result 
 
         from the injury (Ex.  A, pp. 10-13).
 
         
 
              Raymond G. Lewis, M.D., a specialist in internal medicine, 
 
         had seen claimant in December, 1971, for a general physical 
 
         examination.  He felt that claimant had been in good health at 
 
         that time (Ex. 5, pp. 5 & 6).  Dr. Lewis next saw claimant on May 
 
         31, 1983, with complaints of severe headaches, stiff neck with 
 
         discomfort, dizziness when lying down, general stiffness and 
 
         soreness (Ex. 5, pp. 6, 17 & 18).  Dr. Lewis treated claimant 
 
         with muscle relaxants, anti-inflammatory medication, and 
 
         ultrasound to his neck (Ex. 5, pp. 8 & 9).  When claimant's 
 
         symptoms were not relieved, Dr. Lewis referred claimant to James 
 
         W. Dinsmore, M.D., an orthopedic surgeon, for consultation.  Dr. 
 
         Dinsmore treated claimant with additional medication and cervical 
 
         traction (Ex. 5, pp. 10 & 12).
 
         
 
              Dr. Lewis testified that claimant currently complains of 
 
         problems when working while looking up with his hands overhead.  
 
         He stated that claimant exhibits a full range of motion of his 
 
         neck but with pain when doing so (Ex. 5, p. 13).
 
         
 
              Dr. Lewis testified that in his opinion claimant has a 25 
 
         percent permanent partial disability of the body as a whole due 
 
         to the cervical condition and headaches which he experiences (Ex. 
 
         5, pp. 14, 30 & 34).  He attributes the disability to the 
 
         explosion and states that it was an injury in the nature of an 
 
         aggravation of a preexisting condition in claimant's neck (Ex. 5, 
 
         pp. 16 & 26).  Dr. Lewis felt that claimant had been struck by 
 
         considerable force, as evidenced by the substances that were 
 
         embedded in his face, head, hands and legs.  He felt that such 
 
         force would be sufficient to aggravate a preexisting neck 
 
         condition (Ex. 5, pp. 31-33).
 
         
 
              James W. Dinsmore, M.D., an orthopedic surgeon, examined 
 
         claimant on November 29, 1983.  He received complaints of pain in 
 
         claimant's neck, the back of his shoulders, headaches and 
 
         dizziness when lying down.  He found claimant to exhibit a full 
 
         range of neck motion but with pain on extension.  X-rays showed 
 
         narrowing at the C4-5 level with spurring and degenerative 
 
         changes.  They also showed the C4 vertebrae to be positioned 
 
         slightly posterior to the C5.  Dr. Dinsmore's initial impression 
 
         was that claimant had a preexisting degenerative spondylitis at 
 
         the C4-5 level which was aggravated by injury in the nature of an 
 

 
         
 
         
 
         
 
         ROSE V.PEOPLES NATURAL GAS COMPANY
 
         Page   4
 
         
 
         
 
         acute sprain of the cervical spine as a result of the injury on 
 
         December 24, 1982.  He initially did not expect claimant's 
 
         cervical complaints to be a permanent problem but indicated that 
 
         such a condition can become permanent (Ex. 3).
 
         
 
              A subsequent report, exhibit 4, dated April 22, 1986, 
 
         indicates that Dr. Dinsmore found claimant to have continuing 
 
         complaints.  He stated that claimant has a 10 percent permanent 
 
         impairment of the cervical spine and that the injury dates back 
 
         to December 24, 1982.
 
         
 
                         APPLICABLE LAW AND ANALYSIS
 
         
 
              There is no doubt but that claimant was injured on December 
 
         24, 1982 in the explosion.  The injuries clearly included 
 
         lacerations and burns.  The dispute in this case deals with 
 
         whether or not the injuries extended into claimant's cervical 
 
         spine and produced the headaches, dizziness and pain in the neck 
 
         of which claimant currently complains.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 24, 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 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).
 
         
 
              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).  The expert opinion 
 
         may be accepted or rejected, in whole or in part, by the trier of 
 
         fact.  Id. at 907.  Further, the weight to be given to such an 
 
         opinion is for the finder of fact, and that may,be affected by 
 
         the completeness of the premise given the expert and other 
 
         surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 867. 
 
          See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              The evidence in the case presents a factual dispute 
 
         regarding claimant's position at the time of the explosion.  
 
         Claimant testified that the explosion produced sufficient impact 
 
         to demolish and level the building.  He stated that he was 
 
         knocked about but not knocked down by the blast.  Whether part of 
 
         claimant's body was protected by a vehicle or protected by heavy 
 
         clothing is a major point of contention with defendant urging 
 
         that the mid-part of his body was protected by a vehicle while 
 
         claimant denies such occurrence.  The physical facts of the 
 
         matter are that claimant had lacerations on his face, the backs 
 
         of his hands and foreign fragments embedded at approximately the 
 
         junction of the mid and distal third of the right leg which 
 
         appear to have impacted the bone (Ex. 1).  It appears that the 
 
         lacerations existed only above the neck and below the knees.  
 
         This would be a very unusual pattern for someone who had taken 
 

 
         
 
         
 
         
 
         ROSE V.PEOPLES NATURAL GAS COMPANY
 
         Page   5
 
         
 
         
 
         the full force of the impact in a standing position.  It would 
 
         not be impossible, however.
 
         
 
              As indicated by Dr. Lewis the neck is a stalk which supports 
 
         the head.  It would seem that the whipping or whiplash effect 
 
         could have been greater if the head were exposed to the full 
 
         impact of the blast and the body protected, as could occur if a 
 
         person were standing behind a vehicle.  There would likewise be 
 
         substantial trauma and impact if the entire body were exposed to 
 
         the impact of the blast.  Generalized pain and discomfort would 
 
         be expected following exposure to an impact such as the 
 
         explosion.  Where Dr. Westfall treated claimant for a period of 
 
         approximately two weeks in late 1982 and early 1983, it is 
 
         questionable regarding whether he would have much independent 
 
         recollection apart from his records, particularly where claimant 
 
         did not return to him for further treatment.  The records of the 
 
         initial hospitalization do not report any complaints of pain at 
 
         any location in claimant's body, even those which were burned or 
 
         lacerated.  The admission note, exhibit B, contains a statement 
 
         that claimant denied chest or abdominal distress but it makes no 
 
         mention of complaints of neck pain.  The physical examination 
 
         contained in exhibit B shows the neck to be supple, that the 
 
         trachea was in a midline position and that there were no burns.  
 
         Neither the notes regarding the neck nor extremities, which were 
 
         obviously injured, contained any indication of whether or not 
 
         claimant made complaint of pain.  It would normally be expected 
 
         that a person with burns and lacerations would experience pain at 
 
         the sites of those injuries.  It would normally be expected that 
 
         a person exposed to an impact of an explosion, as was claimant, 
 
         would experience generalized stiffness and soreness.  The records 
 
         and reports in evidence make no showing of complaints of pain at 
 
         any location on claimant's body.  The fact that they failed to 
 
         record reports of neck pain is not deemed to be particularly 
 
         significant with regard to whether or not complaints of neck pain 
 
         were made.  Claimant's testimony regarding experiencing pain in 
 
         his neck and back ever since the explosion occurred are accepted 
 
         as correct.
 
         
 
              Drs.  Lewis and Dinsmore relate claimant's neck complaints 
 
         and headaches to the blast.  Dr. Westfall does not.  The basis 
 
         for Dr. Westfall's opinion, however, is that claimant, to his 
 
         recollection, made no complaint of pain in his neck.  That 
 
         rationale is found to be inconsistent with the actual facts of 
 
         claimant experiencing pain in his neck with an onset at the time 
 
         of the explosion.  For these reasons the testimony and evidence 
 
         from Drs.  Lewis and Dinsmore is accepted as correct with regard 
 
         to the explosion being a proximate cause of claimant's current 
 
         complaints.  While it is clear that claimant had a preexisting 
 
         condition in his neck our Supreme Court has consistently stated 
 
         that a claimant may recover for a work connected aggravation of a 
 
         preexisting condition.  Almquist v. Shenandoah Nurseries, 218 
 
         Iowa 724,254 N.W. 35 (1934).  See also Auxier v. Woodward State 
 
         Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and 
 
         Stiles Co., 158 N.W. 2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 
 
         508,133 N.W. 2d 704 (1965); Olson v. Goodyear Service Stores, 255 
 
         Iowa 1112, 125 N.W. 2d 251 (1963); Yeager v. Firestone Tire & 
 
         Rubber Co., 252 Iowa 369, 112 N.W. 2d 299 (1961); Ziegler v. 
 
         United States Gypsum Co., 252 Iowa 613,106 N.W. 2d 591 (1960)
 
         
 

 
         
 
         
 
         
 
         ROSE V.PEOPLES NATURAL GAS COMPANY
 
         Page   6
 
         
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the results; it need not be the only cause. 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980).
 
         
 
              In accordance with the opinion expressed by Dr. Dinsmore, 
 
         claimant is found to have sprain of the cervical spine which has 
 
         left him with a 10 percent permanent functional impairment of the 
 
         cervical spine.  The injury is an aggravation of a preexisting 
 
         condition.  Claimant also experiences headaches as indicated by 
 
         Dr. Lewis.
 
         
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications,.experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).
 
         
 
              Drs. Dinsmore and Lewis have provided differing impairment 
 
         ratings.  Dr. Dinsmore has provided a 10 percent rating and Dr. 
 
         Lewis a 25 percent rating, both of the body as a whole.  Dr. 
 
         Lewis explains the difference as resulting from his decision to 
 
         include headaches while Dr. Dinsmore's rating appears to be based 
 
         solely on the condition of claimant's neck.
 
         
 
              More important than any functional impairment rating is the 
 
         fact that claimant has been able to return to his usual 
 
         employment and has not suffered any loss of earnings as a result 
 
         of the injuries.    He testified that he is able to perform his 
 
         work, albeit with discomfort.  He has not been unable to perform 
 
         any of his assigned duties.  Claimant appears to be appropriately 
 
         employed in light of his education, experience and physical 
 
         condition.  Claimant's employment appears secure and the evidence 
 
         provides no reason to expect that he will not be able to fulfill 
 
         his plan of working until retirement at age 65.
 
         
 
              When all the appropriate factors of industrial disability 
 
         are considered, it is found that claimant's disability, when 
 
         evaluated industrially, is 10 percent of the body as a whole 
 
         which entitles him to receive 50 weeks of compensation at the 
 
         stipulated rate under the provisions of section 85.34(2)(u).
 
         
 
              Claimant's healing period under section 85.34(l) was 
 
         terminated by his return to work on January 9, 1983.  At that 
 
         time he was not symptom free but it appeared that no permanency 
 
         would result according to the evidence that has been received.  
 
         It is only when a course of medical treatment failed to relieve 
 

 
         
 
         
 
         
 
         ROSE V.PEOPLES NATURAL GAS COMPANY
 
         Page   7
 
         
 
         
 
         all of claimant's symptoms that there became some indication that 
 
         permanent partial disability would result.  In his report of 
 
         August 20, 1984 (Ex. 3), Dr. Dinsmore indicated that permanency 
 
         was unlikely.  It was not until the report of April 22, 1986 that 
 
         Dr. Dinsmore assigned a permanent impairment rating (Ex. 4).  
 
         Exhibit 2, at page 3, a report from Dr. Lewis dated August 3, 
 
         1984 indicates that claimant had permanent disability that would 
 
         be approximately 25 percent.  This is the first rating which 
 
         appears in the record.  On May 1, 1984, Dr. Lewis had indicated 
 
         that claimant had not yet reached maximum recovery (Ex. 2, p. 2).  
 
         This is a proceeding in arbitration.  It would seem that the 
 
         rules of Teel v. McCord, 394 N.W.2d 405 (Iowa 1986); and Farmer's 
 
         Elevator Co. Kingsley v. Manning, 286 N.W.2d 174 (Iowa 1979) 
 
         would be controlling.  In his case, however, it was not apparent 
 
         that any permanent disability would result.  This is a 
 
         substantial difference from the two cases cited.  The first 
 
         medical indication, other than complaints and a continuing course 
 
         of treatment with Drs.  Lewis and Dinsmore, that permanency had 
 
         resulted is found in the report from Dr. Lewis dated August 3, 
 
         1984.  Accordingly, payment of claimant's entitlement to 
 
         compensation for permanent partial disability is determined to 
 
         run from August 3, 1984, the first day on which it was indicated 
 
         that permanency would result.  The employer will be held 
 
         responsible for interest from the date that a basis existed to 
 
         support a claim for some degree of permanent partial disability.  
 
         That date is August 3, 1984.
 
         
 
                                FINDINGS OF FACT
 

 
         
 
         
 
         
 
         ROSE V.PEOPLES NATURAL GAS COMPANY
 
         Page   8
 
         
 
         
 
         
 
              1.  On December 24, 1982, Robert W. Rose was a resident of 
 
         the State of Iowa employed by People's Natural Gas Company in 
 
         Council Bluffs, Iowa.
 
         
 
              2.  While performing the duties of his employment Rose was 
 
         injured in an explosion.
 
         
 
              3.  The injury included a sprain of claimant's cervical 
 
         spine which has become permanent.
 
         
 
              4.  Claimant has not experienced actual loss of earnings or 
 
         income as a result of the injury.
 
         
 
              5.  Claimant does have some limitations, however, which 
 
         affect his earning capacity.
 
         
 
              6.  Claimant has suffered a 10 percent loss of his earning 
 
         capacity as a result of the injuries suffered in the explosion on 
 
         December 24, 1982.
 
         
 
                         CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury and disability to claimant's cervical spine, 
 
         his dizziness and headaches are the result of an injury that 
 
         arose out of and in the course of his employment with People's 
 
         Natural Gas Company on December 24, 1982.
 
         
 
              3.  Claimant has sustained a 10 percent permanent partial 
 
         disability, when evaluated industrially, which entitles him to 
 
         receive 50 weeks of compensation under the provisions of section 
 
         85.34(2)(u).
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendant pay claimant fifty 
 
         (50) weeks of compensation for permanent partial disability at 
 
         the stipulated rate of two hundred ninety-seven and 21/100 
 
         dollars ($297.21) per week commencing August 3, 1984.
 
         
 
              IT IS FURTHER ORDERED that all amounts be paid in a lump sum 
 
         together with interest at the rate of 10 percent per annum from 
 
         the date each payment became due as ordered herein.
 
         
 
              IT IS FURTHER ORDERED that defendant pay the costs of this 
 
         proceeding pursuant to Division of Industrial Services Rule
 
         343-4 .33.
 
         
 
              IT IS FURTHER ORDERED that defendant file a claim activity 
 
         report as requested by the agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         Signed and filed this 21st day of April, 1987.
 
         
 
         
 

 
         
 
         
 
         
 
         ROSE V.PEOPLES NATURAL GAS COMPANY
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Dean T. Jennings
 
         Attorney at Law
 
         Suite 222
 
         Council Bluffs Savings Bank Bldg.
 
         Council Bluffs, Iowa 51501
 
         
 
         Mr. James R. Talcott 
 
         Attorney at Law
 
         People's Natural Gas Company 
 
         25 Main Place
 
         Council Bluffs, Iowa 51501
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108; 1402.30; 1402.40
 
                                                 1803; 2206; 3800
 
                                                 Filed April 21, 1987
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         ROBERT W. ROSE,
 
         
 
              Claimant,
 
                                                    FILE NO. 722500
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         PEOPLES NATURAL GAS COMPANY,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         
 
         1108; 1402.30; 1402.40; 1803; 2206; 3800
 
         
 
              Claimant was injured in an explosion.  He was initially 
 
         treated for burns and lacerations.  Approximately three months 
 
         later he sought medical care for headaches and neck pain which he 
 
         attributed to the explosion.  Where the records of his initial 
 
         hospitalization contain no entries of complaints of pain in any 
 
         portion of his body, even those obviously injured, it was found 
 
         that those records were not persuasive evidence of a lack of pain 
 
         in claimant's neck.  A. course of treatment for the headaches and 
 
         neck complaints was unsuccessful at resolving them.  The 
 
         physician treating those complaints assigned a permanent 
 
         impairment rating.  The date the rating was assigned was held to 
 
         be the date upon which compensation for payment of PPD commenced 
 
         and interest was awarded accordingly.  Teel v. McCord was 
 
         distinguished because in this case there was no indication from 
 
         the outset that any permanency would necessarily be forthcoming.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         DONALD UMPHRESS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 723184
 
         ARMSTRONG RUBBER COMPANY,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         claimant permanent partial disability benefits based on a 30 
 
         percent industrial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing together with joint exhibits 1 and 2 and the 
 
         briefs of the parties on appeal.
 
         
 
                                     ISSUE
 
         
 
              Defendants state the following issue on appeal: "Whether the 
 
         deputy's award of thirty percent (30%) industrial disability is 
 
         excessive under the facts and law in this case."
 
         
 
                               REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be fully reiterated 
 
         herein.
 
         
 
              Claimant sustained a work injury to low back on January 4, 
 
         1983 when he was lifting tire cord.  Claimant's primary treating 
 
         physician, Marshall Flapan, M.D., has diagnosed claimant as 
 
         suffering from degenerative disc disease which makes claimant 
 
         susceptible to back injury.  Dr. Flapan revealed that claimant 
 
         has a herniated disc which may require surgery in the future and 
 
         opined that the work injury claimant sustained in January 1983 
 
         was the precipitating cause of the problems for which he has
 
         
 
         treated claimant.  Finally, Dr. Flapan opines that claimant has a 
 
         five percent permanent impairment to the body as a whole as a 
 
         result of his back condition.
 
         
 
              Claimant is 47 years old and a high school graduate.  Prior 
 

 
         to starting his employment with defendant-Armstrong Rubber Co. 
 
         (hereinafter Armstrong) in 1966, claimant served in the armed 
 
         forces as an aircraft technician, worked as a carpenter and 
 
         worked in a bank.  Claimant's primary job at Armstrong has been 
 
         truck tire building which requires lifting from 90 to 135 pounds 
 
         frequently.  Claimant was released to return to work on January 
 
         26, 1983 with restrictions against lifting over 25,pounds and no 
 
         repetitive lifting, twisting, bending, pushing or pulling.  
 
         Claimant now works as janitor at Armstrong.  Claimant estimates 
 
         that he earns about $1.50 an hour less as a janitor than he 
 
         earned as truck tire builder, but he admits that he is allowed to 
 
         work more hours as a janitor.
 
         
 
                              APPLICABLE LAW
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted. Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury,
 
         
 
         
 
         
 
         immediately after the injury, and presently; the situs of the 
 
         injury, its severity and the length of healing period; the work 
 
         experience of the employee prior to the injury, after the injury 
 
         and potential for rehabilitation; the employee's qualifications 
 
         intellectually, emotionally and physically; earnings prior and 
 
         subsequent to the injury; age; education; motivation; functional 
 
         impairment as a result of the injury; and inability because of 
 
         the injury to engage in employment for which the employee is 
 
         fitted.  Loss of earnings caused by a job transfer for reasons 
 
         related to the injury is also relevant.  These are matters which 
 
         the finder of fact considers collectively in arriving at the 
 
         determination of the degree of industrial disability.
 
         
 

 
         
 
         
 
         
 
         UMPHRESS V. ARMSTRONG RUBBER COMPANY
 
         Page   3
 
         
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formula which can be applied and then 
 
         added up to determine the degree of industrial disability. it 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
                                  ANALYSIS
 
         
 
              As indicated previously the parties are unable to agree to 
 
         claimant's permanent disability.  Functional impairment is one 
 
         factor in determining industrial disability as well as in the 
 
         actual reduction of earnings, however, these are not the only 
 
         factors used in determining reduction in earning capacity.
 
         
 
              Claimant has a five percent functional impairment rating and 
 
         restrictions.  These restrictions keep claimant from returning to 
 
         the position he held at the time of his injury.  Claimant is 47 
 
         years old and has worked for Armstrong since 1966.  Although 
 
         claimant has worked for Armstrong at a lower paying position, he 
 
         will be able to work more hours per year and is secure in that 
 
         position.  Claimant may require surgical intervention some time 
 
         in the future but not at this time.  Claimant's age, work 
 
         restrictions and actual reduction in earnings are factors which 
 
         adversely affect his earning capacity.
 
         
 
            The deputy, in his decision, stated:
 
         
 
                      Little evidence was offered to demonstrate 
 
              claimant's potential for vocational rehabilitation
 
              but such rehabilitation is not necessary at this time 
 
              as claimant is engaged in suitable, stable employment 
 
              at the present time.  However, despite his current 
 
              employment, claimant is a semiskilled heavy laborer who 
 
              has been significantly [sic] impaired in his ability to 
 
              perform semiskilled heavy labor.  Should he lose his 
 
              current light duty job for any reason, he probably will 
 
              experience great difficulty in finding replacement 
 
              employment.  "It is a well-known fact of modern 
 
              economic life that the demand for unskilled and 
 
              semiskilled labor has been rapidly declining with the 
 
              advent of the age of mechanization and automation, and 
 
              that the great bulk of the persistent hard-core 
 
              unemployment of the United States is in these 
 
              categories." Guyton v. Irving Jensen Co., 323 N.W.2d 
 
              101, 105 (Iowa 1985).
 
         
 
              It appears from this that the deputy based his decision in 
 
         part on what may occur to claimant in the future as opposed to 
 
         his present condition.  This is mere speculation.  Furthermore 
 

 
         
 
         
 
         
 
         UMPHRESS V. ARMSTRONG RUBBER COMPANY
 
         Page   4
 
         
 
         
 
         claimant is not hard-core unemployed and the holding of Guyton is 
 
         not relevant in this case.
 
         
 
              It is determined that claimant's industrial disability is 12 
 
         percent as a result of his injury on January 4, 1983.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  Claimant started working for Armstrong in 1966.
 
         
 
              2.  Although prior to January 4, 1983 claimant injured his
 
              back.  Claimant had no functional impairment or working 
 
         restrictions.
 
         
 
              3.  On January 4, 1983 claimant injured his back while 
 
         working for Armstrong as a truck tire builder.
 
         
 
              4.  As a result of his injury on January 4, 1983 claimant 
 
         has a functional impairment of five percent.
 
         
 
              5.  As a result of his injury on January 4, 1983 claimant is 
 
         restricted by his physician from lifting over 25 pounds and from 
 
         repetitive bending, lifting, pushing and pulling.
 
         
 
              6.  Claimant is unable to return to the job he held at the 
 
         time of his injury because of the restrictions.
 
         
 
              7.  Claimant has suffered an actual reduction in earnings as 
 
         a result of his injury on January 4, 1983.
 
         
 
              8.  Claimant is highly motivated to remain gainfully 
 
         employed.
 
         
 
         
 
              9.  Claimant is 47 years old, has a high school education 
 
         and, is intelligent.
 
         
 
              10.  Claimant is presently employed by Armstrong as a 
 
         janitor.
 
         
 
              11.  As a result of his injury on January 4, 1983 claimant 
 
         has an industrial disability of 12 percent.
 
         
 
              12.  Defendants have previously paid claimant 25 weeks of 
 
         permanent partial disability.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has met his burden in proving he is entitled to an 
 
         additional 35 weeks of permanent partial disability benefits.
 
         
 
              WHEREFORE, the decision of the deputy is modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant thirty-five (35) 
 
         additional weeks of permanent partial disability benefits at the 
 

 
         
 
         
 
         
 
         UMPHRESS V. ARMSTRONG RUBBER COMPANY
 
         Page   5
 
         
 
         
 
         rate of two hundred eighty-two and 39/100 dollars ($282.39) per 
 
         week from March 1, 1985 (this date is twenty-five (25] weeks 
 
         after the stipulated commencement date of September 7, 1984).
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         SUM.
 
         
 
              That defendants shall pay interest on benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That all costs including the transcription of the hearing 
 
         proceeding are taxed to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file activity reports on the payment 
 
         of this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 27th day of August, 1987.
 
         
 
         
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert L. Pratt
 
         Attorney at Law
 
         1913 Ingersoll
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Terry L. Monson
 
         Attorney at Law
 
         300 Liberty Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803
 
                                                 Filed August 27, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         DONALD UMPHRESS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                    File No. 723184
 
         ARMSTRONG RUBBER COMPANY,
 
                                                      A P P E A L
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         _________________________________________________________________
 
         
 
         
 
         1803
 
         
 
              The dispute on appeal was the extent of claimant's 
 
         industrial disability.  The deputy found 35 percent, however, the 
 
         deputy based his decision on what may occur to claimant in the 
 
         future as opposed to his present condition.  This is mere 
 
         speculation.  Deputy's citation of the holding in Guyton was 
 
         irrelevant as claimant is not hard-core unemployed.  Claimant 
 
         found 12 percent industrially disabled.  Modified.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROY L. GRAVES,
 
         
 
              Claimant,
 
                                                       File No. 723352
 
         VS.
 
         
 
         CROUSE  CARTAGE COMPANY,
 
                                                   A R B I T R A T I 0 N 
 
              Employer,
 
         
 
         and
 
                                                      D E C I S I 0 N
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Roy L. Graves 
 
         against Crouse Cartage Company, his former employer, and Liberty 
 
         Mutual Insurance Company, its insurance carrier.
 
         
 
              The case was heard at Des Moines, Iowa on March 17, 1987 and 
 
         was fully submitted upon conclusion of the hearing.  The record 
 
         in the proceeding consists of claimant's exhibit 1, an exhibit 
 
         which has 65 pages, and testimony from Roy L. Graves and Gary 
 
         Walljasper.
 
         
 
                                      ISSUES
 
         
 
              The claimant seeks authorization to have surgery performed 
 
         as recommended by William R. Bouldon, M.D.  Claimant seeks 
 
         additional healing period and an award of permanent partial 
 
         disability if surgery is not authorized.  The issues presented by 
 
         the parties include whether the stipulated injury of January 7, 
 
         1983 is a proximate cause of permanent disability of any degree; 
 
         whether claimant is entitled to additional healing period over 
 
         and above the 36.85 weeks which the parties stipulated have been 
 
         paid at the rate of $305.08 per week, which rate is stipulated to 
 
         be the correct rate in this case; and, determination of 
 
         claimant's entitlement to compensation for permanent partial 
 
         disability, should claimant not be authorized to have the surgery 
 
         recommended by Dr. Boulden.
 
         
 
         
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              All evidence received at hearing is considered when deciding 
 

 
         
 
         
 
         
 
         GRAVES V. CROUSE CARTAGE COMPANY
 
         Page   2
 
         
 
         
 
         this case even though it may not necessarily be referred to in 
 
         this decision.
 
         
 
              Roy L. Graves is a married, 32-year-old man with two minor 
 
         children.  He is a graduate of Pleasantville High School and 
 
         lives in Knoxville, Iowa.
 
         
 
              Graves was injured on January 7, 1983 while unloading large 
 
         truck tires.  There is no evidence in the record of prior back 
 
         problems and claimant denied having any prior back problems.
 
         
 
              Following the injury of January 7, 1983, Graves was off work 
 
         for several weeks and treated under the direction of Thomas B. 
 
         Summers, M.D.  The treatment was generally in the nature of 
 
         physical therapy (exhibit 1, pages 23-37).  Dr. Summers diagnosed 
 
         claimant's condition as a herniated lumbar disc (exhibit 1, page 
 
         22).  Following the treatment, claimant returned to work with 
 
         Crouse Cartage Company in the same position as he had occupied at 
 
         the time of injury.  He continued to work until laid off in 
 
         October, 1983, drew unemployment and then found work driving a 
 
         coal truck in March, 1984.  After approximately one and one-half 
 
         years, claimant was laid off from the coal truck position.
 
         
 
              Claimant subsequently returned to Dr. Summers and voiced 
 
         complaints consistent with those he expressed at hearing.  
 
         Namely, he indicated that he had gotten along reasonably well 
 
         while off work and while receiving physical therapy, but that 
 
         when he returned to work for Crouse Cartage Company, his symptoms 
 
         returned.  He expressed discomfort with extended walking, 
 
         standing on cement or sitting in a truck for a long period of 
 
         time.  Dr. Summers found no evidence of a neurological deficit 
 
         and no evidence of any muscle spasm.  He suspected that claimant 
 
         may have a lumbar radicular syndrome, but recommended against 
 
         surgery.  He advised that claimant obtain a second opinion and 
 
         expressed no objection to having claimant examined by Dr. Boulden 
 
         (exhibit 1, page 40-41).
 
         
 
              Under the direction of Dr. Boulden, a CT scan of claimant's 
 
         lumbar spine was performed which was interpreted as showing 
 
         marked lateral foraminal stenosis at the L4-L5 level on the left 
 
         and also a bulging disc at that same level (exhibit 1, page 7).  
 
         A discogram was also performed and interpreted by Dr. Boulden as 
 
         being abnormal.  Dr. Boulden recommended that claimant undergo 
 
         discectomy and posterior lumbar interbody fusion -and felt that 
 
         there was an 80% chance that the surgery would be effective at 
 
         relieving claimant's symptoms (exhibit 1, page 11).  Claimant was 
 
         agreeable to having surgery, but Liberty Mutual Insurance 
 
         Company, in accordance with its normal procedures, sought a 
 
         second opinion on the advisability of surgery and sent claimant 
 
         to Thomas A. Carlstrom, M.D. Dr. Carlstrom recommended against 
 
         the performance of an anterior fusion or any other surgery.  He, 
 
         did state, however, "...a myelography may indicate a large 
 
         central herniated disc that could possibly be excised for 
 
         improvement of his symptoms."  Dr. Carlstrom said he would 
 
         recommend surgery if a myelogram were to indicate the existence 
 
         of a large central herniated disc.  He felt that claimant had 
 
         reached maximum healing, had a 3-5 percent permanent functional 
 
         impairment and should be restricted to lifting a maximum of 50 
 
         pounds or 20 to 25 pounds repetitively (exhibit 1, pages 1-3).
 

 
         
 
         
 
         
 
         GRAVES V. CROUSE CARTAGE COMPANY
 
         Page   3
 
         
 
         
 
         
 
              Claimant was also evaluated at the University of Iowa 
 
         Hospitals and Clinics by Thomas R. Lehmann, M.D.  The report 
 
         states, "Our opinion is that it seems reasonable that if he has 
 
         an abnormal discogram and Dr. Bowden [sic] feels this is the 
 
         cause of his pain, then it is reasonable to do an interbody 
 
         fusion.  It is also reasonable that further diagnostic studies 
 
         might be done to possibly to [sic] look for any other abnormality 
 
         being a myelogram followed by a CT scan." (Exhibit 1, page 9)
 
         
 
              Based upon the history given to them, Drs. Carlstrom and 
 
         Boulden both opined that the injury of January, 1983 was a cause 
 
         of claimant's symptoms and complaints (exhibit 1, pages 1 and 
 
         10).  Dr. Boulden went on to state, however, that if claimant 
 
         were symptomatic subsequent to recovery from the 1983 injury, 
 
         that some new causative factor would be responsible for the 
 
         symptoms.  From the record it is clear that claimant did improve 
 
         through treatment in early 1983.  The final therapy note (exhibit 
 
         1, page 35) states, "During final treatment patient had very 
 
         little muscle spasm or discomfort in the low back."  The 
 
         concluding report from Dr. Summers in 1983 states that claimant 
 
         was essentially symptom free..." It concludes with the statement, 
 
         OSeemingly, Mr. Graves has enjoyed complete and satisfactory 
 
         recovery" (exhibit 1, page 44).  It should be noted that claimant 
 
         had not yet returned to work at the time the statements from the 
 
         therapist and Dr. Summers were made.  Claimant testified that he 
 
         was never completely symptom free.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The occurrence of the injury in January, 1983 was stipulated 
 
         by the parties.  Proximate cause is, however, at issue.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 7, 1983 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 question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The opinions expressed by Drs. Carlstrom and Boulden depend 
 
         upon the accuracy of claimant's history.  He testified concerning 
 

 
         
 
         
 
         
 
         GRAVES V. CROUSE CARTAGE COMPANY
 
         Page   4
 
         
 
         
 
         ongoing symptoms and complaints commencing with his return to 
 
         work in early 1983.  The notes of physical therapy and from Dr. 
 
         Summers showing improvement were made at a time when claimant had 
 
         not yet returned to work.  Close reading of those reports does 
 
         not show complete recovery although they do indicate substantial 
 
         improvement.  Claimant's demeanor was observed at hearing.  There 
 
         is nothing in the record which contradicts his testimony of 
 
         continuing complaints and that testimony is accepted as correct.  
 
         Dr. Summers diagnosed a herniated lumbar disc in 1983 and that 
 
         diagnosis remains in effect at the present time.  The injury of 
 
         January 7, 1983 is found and determined to be a proximate cause 
 
         of claimant's current symptoms and condition in regards to his 
 
         low back.
 
         
 
              Claimant seeks authorization for surgery.  Code section 
 
         85.27 gives the employer the obligation to furnish reasonable 
 
         services and supplies to treat an injured employee and the right 
 
         to choose the care.  The statute also gives the employee, if 
 
         dissatisfied with that care, the option to apply to the 
 
         industrial commissioner for a change of care.  If an employer 
 
         denies compensability of an injury, it cannot guide the medical 
 
         treatment.  Barnhart v. MAQ, Inc., I Iowa Industrial Commissioner 
 
         Report 16 (Appeal Decision 1981).  It could be held that, since 
 
         the employer denied liability due to an alleged lack of 
 
         causation, the employer has no right to select the care.  Choice 
 
         of physician is not, however, the ultimate issue in this case.  
 
         It appears from the record that Dr. Boulden whom claimant wishes 
 
         to have provide his treatment, was authorized by the insurance 
 
         carrier.  The real issue is whether or not surgery is to be 
 
         performed by Dr. Boulden at the employer's expense.  The general 
 
         rule is that once an employee has justifiably engaged a 
 
         physician, a belated attempt by the employer to control the care 
 
         will not cut off the right of the employee to continue with that 
 
         care in the absence of a change of condition or evidence that the 
 
         treatment is defective (2 Larson Workmen's Compensation, section 
 
         61.12(d), pages 10-821 to 10-823).
 
         
 
              What is meant by the provision in section 85.27 giving the 
 
         employer " ... the right to choose the care" is sometimes 
 
         misunderstood.  Section 61.12(b) of 2 Larson Workmen's 
 
         Compensation indicates that the reason for giving the employer 
 
         choice of the medical care is as follows, "If the injured 
 
         employee has completely unlimited free choice of his doctor, in 
 
         some cases he may select a doctor, because of personal 
 
         relationship or acquaintance, who is not qualified to deal with 
 
         the particular kind of case, or who at any rate is incapable of 
 
         providing service of the quality required for the optimum 
 
         rehabilitation process." It has previously been held that section 
 
         85.27 gives the employer, and its insurance carrier, the right to 
 
         choose a treating physician, but does not give them the right to 
 
         invade the province of medical professionals in determining what 
 
         diagnostic tests and/or methods of treatment are to be utilized.  
 
         Pote v. Mickow Corp., #694639 (Review-reopening decision June 17, 
 
         1986); Martin v. Armour Dial Inc. #754732 (Arbitration decision 
 
         July 31, 1985).  Drs. Carlstrom, Boulden, Lehmann and Summers are 
 
         all known to this agency as specialists who are well regarded and 
 
         recognized as excellent physicians.  This case is not one which 
 
         presents a claimant who is seeking care by a physician who will 
 
         accommodate unreasonable claims of disability.  It likewise is 
 

 
         
 
         
 
         
 
         GRAVES V. CROUSE CARTAGE COMPANY
 
         Page   5
 
         
 
         
 
         not a case where the employer seeks to authorize only a physician 
 
         who takes the position that a complete recovery has occurred and 
 
         that no further treatment is warranted.
 
         
 
              Two Larson section 61.12(e) deals with the issue of 
 
         differing diagnoses.  It suggests that one approach is to let the 
 
         result be determined by which diagnosis was eventually proven to 
 
         be correct.  It also indicates, however, that it is not improper 
 
         to permit a change of medical care, upon petition, where there is 
 
         a legitimate professional dispute as to the proper method of 
 
         treatment for the injury.  Southwestern Bell Telephone Co. v. 
 
         Brown, 256 Arkansas 54, 505 S.W.2d 207 (1974).  It appears in 
 
         this case that the insurance carrier, acting on behalf of the 
 
         employer, has authorized treatment by Dr. Boulden, Dr. Summers 
 
         and Dr. Carlstrom.
 
         
 
              Claimant is permitted to obtain treatment, at the employer's 
 
         expense, from whichever of those three physicians he chooses.  
 
         The employer and its insurance carrier are not permitted to 
 
         withdraw authorization for treatment by any of those three 
 
         physicians and further, are not permitted to dictate to any of 
 
         the physicians how the physician should practice medicine in 
 
         providing treatment to Roy L. Graves.  Neither the employer nor 
 
         the insurance carrier has been shown to possess the expertise 
 
         necessary to tell highly-regarded medical professionals how to 
 
         practice medicine.
 
         
 
              Drs. Lehmann and Carlstrom have both indicated that a 
 
         myelogram would be advisable prior to performing-any surgery.  It 
 
         is difficult to understand how claimant can be willing to undergo 
 
         surgery, but is not willing to undergo a myelogram for diagnostic 
 
         purposes in order to be more certain with regard to whether or 
 
         not surgery is required.
 
         
 
              Claimant seeks a running award of healing period 
 
         compensation.  There is no evidence in the record which indicates 
 
         that claimant has been disabled subsequent to April 4, 1983.  It 
 
         has been stipulated in paragraph 10 of the pre-hearing report 
 
         that claimant has been paid 36.85 weeks of compensation at the 
 
         correct rate.  Reports filed by defendants show payment of 11.857 
 
         weeks.  The difference between the Claim Activity Reports and the 
 
         pre-hearing report is unexplained.  Claimant's entitlement to 
 
         healing period at this time is found to be 11.857 weeks running 
 
         from January 8, 1983 through January 23, 1983 and from February 
 
         7, 1983 through April 4, 1983 in accordance with the records from 
 
         Drs. Foley and Summers.  Claimant's entitlement to future 
 
         compensation for healing period will commence at such time as it 
 
         is medically indicated that he is unable to engage in employment 
 
         substantially similar to that in which he was engaged at the time 
 
         of the injury in January, 1983.  It will certainly commence upon 
 
         hospitalization if such should occur.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The injury of January 7, 1983 is a substantial factor in 
 
         bringing about the herniated disc in claimant's spine and the 
 
         symptoms referable to his spine with which he is now afflicted 
 
         and for which he seeks treatment from William R. Boulden, M.D.
 
         
 

 
         
 
         
 
         
 
         GRAVES V. CROUSE CARTAGE COMPANY
 
         Page   6
 
         
 
         
 
              2.  William R. Boulden, M.D., is a physician who has been 
 
         authorized by the employer and its insurance carrier to treat 
 
         claimant.
 
         
 
              3.  The treatment recommended by Dr. Boulden is reasonable.
 
         
 
              4.  Claimant has not shown that, at any time subsequent to 
 
         April 4, 1983, he has been medically incapable of performing work 
 
         substantially similar to that in which he was engaged at the time 
 
         of the injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and it parties.
 
         
 
              2.  The injury of January 7, 1983 is a proximate cause of 
 
         the low back condition.which currently afflicts Roy L. Graves.
 
         
 
              3.  Defendants are responsible for expenses of treatment 
 
         performed by or under the direction of William R. Boulden, M.D.
 
         
 
              4.  Section 85.27 of the Code gives the employer and its 
 
         insurance carrier the right to select the physician or physicians 
 
         who will treat an injured worker (and also other choices of 
 
         selection such as selection of hospital, therapist, source of 
 
         prosthetic devices, etc.), but it does not give them the right to 
 
         direct or control the physician in matters involving the exercise 
 

 
         
 
         
 
         
 
         GRAVES V. CROUSE CARTAGE COMPANY
 
         Page   7
 
         
 
         
 
         of professional medical judgment such as determining what methods 
 
         or diagnosis or treatment are to be employed in any particular 
 
         case.
 
         
 
              5.  Claimant is not entitled to additional healing period 
 
         over and above that which has been paid at this time.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant may obtain medical 
 
         care from William R. Boulden, M.D., and that the employer and its 
 
         insurance carrier may not direct Dr. Boulden with regard to the 
 
         methods of diagnosis or treatment to be employed.  All treatment 
 
         performed by Dr. Boulden will be at defendants' expense under the 
 
         provisions of code section 85.27.
 
         
 
              IT IS FURTHER ORDERED that claimant has, as of date of 
 
         hearing, an entitlement to eleven point eight five seven (11.857) 
 
         weeks of compensation for healing period at the rate of three 
 
         hundred five and 08/100 dollars ($305.08) per week, which 
 
         entitlement has been previously fully satisfied by defendants.
 
         
 
              IT IS FURTHER ORDERED that defendants are not permitted to 
 
         withdraw authorization for treatment from Drs. Boulden, Carlstrom 
 
         or Summers without first obtaining an order from this agency 
 
         permitting them to do so.
 
         
 
              IT IS FURTHER ORDERED that costs of this proceeding are 
 
         assessed against defendants.
 
         
 
         
 
         
 
              Signed and filed this 27th day of July, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           MICHAEL G.TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Jim Lawyer
 
         Attorney at Law
 
         2141 Grand Avenue
 
         P.O. Box 367
 
         Des Moines, Iowa 50312
 
         
 
         Mr. W.C. Hoffmann
 
         Attorney at Law
 
         1000 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     2501, 2700
 
                                                     Filed July 27, 1987
 
                                                     MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROY L. GRAVES,
 
         
 
              Claimant,
 
                                                      File No. 723352
 
         VS.
 
         
 
         CROUSE  CARTAGE COMPANY,
 
                                                    A R B I T R A T I 0 N
 
              Employer,
 
         
 
         and
 
                                                      D E C I S I 0 N
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         2501, 2700
 
         
 
              This case presented a dispute between competent medical 
 
         specialists regarding whether or not surgery for claimant's 
 
         condition was appropriate.  The dispute was between physicians 
 
         who had been authorized by the employer, acting through its 
 
         insurance carrier.  It was held that the employer, and its 
 
         insurance carrier, have the right to select which physicians will 
 
         provide treatment, but do not have the right to dictate to the 
 
         physicians how to practice medicine in matters involving the 
 
         exercise of professional medical judgment such as selection of 
 
         diagnostic tests or methods of treatment.  Claimant was allowed 
 
         to select care from the authorized physicians.  Claimant was 
 
         specifically granted approval to obtain care from the authorized 
 
         physician of his choice; the decision regarding surgery was left 
 
         up to that physician and the claimant; and, defendants were 
 
         prohibited from withdrawing authorization without obtaining an 
 
         order from this agency permitting them to do so.