BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEAN CREASY,
 
         
 
              Claimant,
 
                                                     File No. 725325
 
         vs.
 
                                                       A P P E A L
 
         PETERSON BUSINESS ACCOUNTING,
 
                                                     D E C I S I O N
 
              Employer,
 
         
 
         and                                            F I L E D
 
         
 
         AMERICAN MUTUAL INS. CO.,                     JAN 28 1988
 
         
 
              Insurance Carrier,             IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision (erroneously 
 
         captioned a review-reopening decision) awarding permanent partial 
 
         disability for an additional 15% (75 weeks).
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 17; and 
 
         defendants' exhibits A through K.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                    ISSUES
 
         
 
              Claimant states the issues on appeal are whether the deputy 
 
         erred in finding that claimant was not an odd-lot employee and 
 
         whether the deputy erred in apportioning claimant's loss of 
 
         earning capacity between his 1982 injury and his pre-1982 
 
         disability.
 
         
 
                            REVIEW OF EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant injured his back in 1981 while employed in Colorado 
 
         as a truck driver.  On March 1, 1982 Cloyd L. Arford, M.D., 
 
         performed a laminectomy at L4-L5, L5-S1 on the right side.  On 
 
         September 7, 1982 Dr. Arford opined that claimant had a permanent 
 
         disability of five percent "as a working unit" and should avoid 
 
         bending and heavy lifting permanently.
 
         
 
              Claimant moved to Iowa and began work for defendant 
 
         employer, Peterson Business Accounting, on about August 1, 1982.  
 
                                                
 
                                                         
 
         On December 7, 1982 he slipped and fell on the ice outside his 
 
         employer's home while picking up business records.  He was 
 
         hospitalized and returned to work driving a truck.  On January 
 
         23, 1983, while working, he reported numbness in his legs and he 
 
         was rehospitalized on January 31, 1983.  A myelogram showed an 
 
         extradural defect at L4,5.  Mark Broderson, M.D., performed a 
 
         laminectomy at that level.  On September 30, 1983 Dr. Broderson 
 
         opined that claimant had a permanent partial impairment of 20% of 
 
         the body as a whole as regards his lower back problem.  The 
 
         doctor further opined that claimant could do occasional lifting, 
 
         but not on a repetitive basis and that he should not do 
 
         repetitive bending or twisting.  He also stated that claimant was 
 
         employable within his restrictions.
 
         
 
              In summer 1983, the defendant insurer referred claimant to 
 
         Crawford Rehabilitation Services (Crawford) for vocational 
 
         rehabilitation assistance.  On August 17, 1983 claimant was 
 
         administered the career assessment inventory and general aptitude 
 
         test battery (G.A.T.B.).  Claimant's scores were interpreted as 
 
         ranging in the average area with below average abilities noted in 
 
         finger and manual dexterity portions of the test.  Claimant's 
 
         best scores were in verbal aptitude, numerical aptitude and 
 
         general learning category.  Several occupational areas suggested 
 
         by the G.A.T.B. results included security services, quality 
 
         control, materials control, production technology, general sales, 
 
         hospitality services, and child and adult care.  In the career 
 
         assessment inventory, claimant's highest interest area was in the 
 
         realistic realm indicating general areas of high interest as 
 
         manual/skilled trades, agriculture, animal service, and high 
 
         interest areas with mechanical/fixing, electronic, carpentry, and 
 
         nature/outdoors.  Crawford referred claimant to the Department of 
 
         Public Instruction, Vocational Rehabilitation, where he was first 
 
         seen November 8, 1983.  A microcomputer evaluation and screening 
 
         assessment (M.E.S.A.) was administered claimant.  Claimant scored 
 
         on the seventh grade level in respect to vocabulary and at a 
 
         fourth grade level in respect to mathematics, spelling and 
 
         reading ability.  The evaluator felt claimant appeared below the 
 
         necessary academic requirements to successfully complete a one- 
 
         or two-year vocational training course.  He indicated that 
 
         claimant demonstrated below average visual memory ability as well 
 
         as (below average) reasoning ability.  The reporter noted that 
 
         claimant demonstrated an interest in horticulture/agriculture, 
 
         sports, maintenance and repairs, law enforcement, personal 
 
         service or manufacturing occupations.  Claimant also demonstrated 
 
         a strong familiarity with the world of work in respect to getting 
 
         and keeping a job as well as other work-related requirements and 
 
         was noted to have excellent tool usage skills as well as work 
 
         speed.
 
         
 
              Crawford referred claimant to a number of potential job 
 
         openings.  A number of the jobs considered were in the Des Moines 
 
         area or further from claimant's home and he testified that travel 
 
         that far was not feasible for a part-time or minimum wage 
 
         position.  A vocational consultant with Crawford related that a 
 
         variety of positions considered for claimant were otherwise 
 
                                                
 
                                                         
 
         filled before claimant was available for them.  Records from 
 
         Crawford and State Vocational Rehabilitation in evidence do 
 
         suggest, however, that claimant was not always wholly motivated 
 
         to work steadfastly towards his vocational rehabilitation.  
 
         Claimant reported that while he could now work at certain minimum 
 
         wage jobs, such as service station attendant, he would be 
 
         required to pay child support if he did so and that, with 
 
         transportation and living costs, he then would have no personal 
 
         income.  He admitted that there were jobs he could do.
 
         
 
                               APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                 ANALYSIS
 
         
 
              Defendants argue in their reply brief on appeal that the 
 
         odd-lot doctrine was not raised at the hearing and, therefore, 
 
         may not be argued as an issue now.  The result of this decision 
 
         renders this issue moot.
 
         
 
              It appears that claimant cannot return to over-the-road 
 
         trucking or heavy manual labor.  He is also restricted from 
 
         twisting and bending maneuvers.  Claimant has been self-employed 
 
         as a race car builder, a trucker and a service station 
 
         owner-operator.  He admitted that there were jobs he could do.  
 
         There were positions available that he chose not to pursue.  It 
 
         is impossible for a defendant to force a claimant to work.  A 
 
         claimant's motivation and cooperation are of prime importance. 
 
         That claimant has problems unrelated to his injury which effect 
 
         the choices claimant makes, does not mean that defendants are 
 
         responsible for greater liability.  It appears that claimant is 
 
         employable.  Claimant has not presented evidence sufficient to 
 
         shift the burden of proof, with respect to employability, to the 
 
         employer.  Claimant, therefore, cannot be considered an odd-lot 
 
         employee.  When all factors, including claimant's limited 
 
         motivation, are considered, claimant has a permanent partial 
 
         disability of 45% overall.
 
         
 
              It is necessary to consider what portion, if any, of the 
 
         overall disability resulted from his pre-injury condition.  
 
         Although claimant argues otherwise, there is evidence on which to 
 
         base such a decision.  The record discloses claimant's age before 
 
         his injury as well as his education.  The record discloses the 
 
         type of work he had been performing and any working restrictions. 
 
         The record shows clearly that the deputy was not basing a 
 
         decision on speculation, but on facts received into evidence.  
 
         Dr. Arford opined claimant had a permanent partial impairment of 
 
         five percent of the body as a whole from his Colorado injury, but 
 
         claimant worked in Iowa at his earlier vocation of truck driving.  
 
         His Iowa injury now precludes him from doing certain activities, 
 
         such as driving a truck.  The deputy correctly concluded "that 10 
 
         percent of claimant's current industrial disability results from 
 
         his preexisting disability and not from his December 1982 work 
 
                                                
 
                                                         
 
         injury."  The deputy further correctly concluded:
 
         
 
              Defendants, therefore, are liable for permanent partial 
 
              disability benefits of 35 percent.  Defendants have paid 
 
              claimant permanent partial disability benefits of 20 percent 
 
              for which they receive credit.  Defendants, therefore, are 
 
              liable for an additional 15 percent permanent partial 
 
              disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on December 7, 1982 when he fell on 
 
         ice outside his employer's home.
 
         
 
              2.  Claimant subsequently underwent back surgery in which 
 
         extensive scarring was lysed from the nerve root, but in which no 
 
         significant disc abnormality was found.
 
         
 
              3.  Claimant had sustained an injury in early 1982 after 
 
         which he underwent two back surgeries.  Disc bulging and disc 
 
         herniation were found at the L4-L5 and L5-S1 levels.
 
         
 
              4.  Claimant had a permanent partial impairment of five 
 
         percent of the body as a whole in September 1982.
 
                                 
 
                                                
 
                                                         
 
         
 
              5.  Claimant had a permanent partial impairment of 20% of 
 
         the body as a whole in September 1983.
 
         
 
              6.  Claimant returned to trucking after his 1982 surgeries 
 
         and was able to continue working until his December 1982 injury 
 
         and subsequent surgery.
 
         
 
              7.  Claimant is 47 years old and a high school graduate.
 
         
 
              8.  Claimant's academic abilities largely are at the fourth 
 
         grade level.
 
         
 
              9.  Claimant has difficulty thinking abstractly.  His 
 
         ability to complete extensive vocational retraining is 
 
         questionable.
 
         
 
              10.  Claimant is restricted from heavy lifting and bending. 
 
         Claimant cannot return to trucking.  Claimant has past experience 
 
         as a self-employed small businessman.
 
         
 
              11.  Claimant is employable and is not an odd-lot employee.
 
         
 
              12.  Claimant is not well motivated to work.
 
         
 
              13.  Defendants have made extensive efforts to vocationally 
 
         rehabilitate claimant.
 
         
 
              14.  Claimant's current efforts at vocational rehabilitation 
 
         are ambiguous.
 
         
 
              15.  Claimant's overall loss of earning capacity may be 
 
         proportioned between his December 1982 work injury and his 
 
         previous back condition.
 
         
 
              16.  Claimant's overall loss of earning capacity is 45% of 
 
         which 10% may be attributed to his pre-December 7, 1982 
 
         disability.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has established that his injury of December 7, 1982 
 
         is the cause of the disability on which he now bases his claim.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his December 7, 1982 injury of 35%.
 
         
 
              Defendants are entitled to credit for permanent partial 
 
         disability of 20% already paid claimant.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
                                                
 
                                                         
 
         
 
              That defendants pay claimant permanent partial disability 
 
         for an additional seventy-five (75) weeks at a rate of one 
 
         hundred ninety and 90/100 dollars ($190.90).
 
         
 
              That defendants pay accrued amounts in a lump sum.
 
         
 
              That defendants pay interest pursuant to section 85.30.
 
         
 
              That defendants pay the costs of the arbitration proceeding 
 
         and claimant pay the costs on appeal including the transcription 
 
         of the hearing proceeding.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 28th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                    DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         503 Snell Building
 
         P.O. Box 1680
 
         Fort Dodge, Iowa  50501
 
         
 
         Mr. Stephen G. Kersten
 
         Ms. Claire Carlson
 
         Attorney at Law
 
         7th Floor, Snell Building
 
         P.O. Box 957
 
         Fort Dodge, Iowa  50501
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1803 - 4100
 
                                                 Filed January 28, 1988
 
                                                 DAVID E. LINQUIST
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEAN CREASY,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                      File No. 725325
 
         PETERSON BUSINESS ACCOUNTING,
 
                                                        A P P E A L
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         AMERICAN MUTUAL INS. CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant had an overall industrial disability of 45 percent. 
 
         Ten percent of that disability resulted from a preexisting 
 
         disability.  Claimant was entitled to a 35 percent permanent 
 
         partial disability from the injury with defendant employer.
 
         
 
         4100
 
         
 
              Claimant was employable and had not shifted the burden of 
 
         proof with respect to employability to the employer.
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JULIE SUSAN JOHNSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 725377
 
         STATE OF IOWA-MENTAL HEALTH
 
         INSTITUTE,                              A R B I T R A T I O N
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Julie Sue 
 
         Johnson, claimant, against State of Iowa-Mental Health Institute, 
 
         employer, and State of Iowa, insurance carrier, defendants.  The 
 
         case was heard by former Deputy Industrial Commissioner, Garry D. 
 
         Woodward.  The case was transferred to the undersigned by David 
 
         E. Linquist, Industrial Commissioner on July 13, 1988.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of claimant's exhibits 1 through 34 and 
 
         defendants' exhibits A through J.  The exhibits include the 
 
         depositions of Scott William Hinde and Elizabeth Lucy 
 
         Marchiando.
 
         
 
              The parties stipulate claimant sustained an injury on 
 
         January 27, 1983 which arose out of and in the course of her 
 
         employment with defendant.  The parties also stipulate the 
 
         alleged injury was a cause of temporary disability for the period 
 
         from January 28, 1983 through January 16, 1984 and that weekly 
 
         benefits were paid for that period at the rate of $171.78 per 
 
         week.
 
         
 
                                 ISSUES PRESENTED
 
         
 
              The issues presented by the parties are:
 
         
 
              1.  Whether claimant's work injury is a cause for an 
 
         industrial disability to the body as a whole; and,
 
              2.  Whether claimant is entitled to reimbursement for all 
 
         medical expenses paid by her during the course of her claim.
 
         
 
                                 FACTS PRESENTED
 
         
 
         
 
              Claimant is a 33 year old resident treatment worker on 
 
         Cromwell's Children's Unit at the Mental Health Institute in 
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE   2
 
         
 
         
 
         
 
         Independence, Iowa.  Claimant has been employed there since 
 
         December 3, 1973.
 
         
 
              This is the only full time position that claimant has 
 
         held.  Claimant is a high school graduate.  Since the onset of 
 
         her employment, claimant has taken various training courses 
 
         offered by her employment and one college credit course.  
 
         Claimant has also successfully completed several examinations 
 
         offered by the Iowa Department of Personnel.  She has been 
 
         promoted throughout the course of her employment and claimant 
 
         has worked in all of the wards at the facility.
 
         
 
              Prior to the date of the injury, which is the subject 
 
         matter of this proceeding, claimant had been involved in a 
 
         non-work related automobile accident on April 7, 1977.  A claim 
 
         was filed by claimant against the driver of the other 
 
         automobile.  Claimant settled her claim.  According to her 
 
         hospital discharge summary, claimant was suffering from 
 
         "moderate severe low back pain ... secondary to back strain."
 
         
 
              Several years after the automobile accident, claimant's 
 
         chiropractor, Max D. Wolfgram, D.C., determined claimant's 
 
         prognosis was as follows:
 
         
 
              Julie has received favorable improvement with the 
 
              adjustments.  Her symptoms do return periodically 
 
              mainly due to the stress/strain of her occupation.  I 
 
              do feel that she will possibly need future periodic 
 
              care in the form of spinal adjustment.  She does have a 
 
              supporting structure weakness in the spinal column 
 
              allowing future subluxations of the spine.  At the last 
 
              visit, Julie complained of headaches, right shoulder 
 
              ache and right low backache.
 
         
 
              Claimant continued to see Dr. Wolfgram from May of 1979 
 
         through July of 1982 and then again on January 10, 1983 for her 
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE   3
 
         
 
         
 
         
 
         right shoulder, right arm, fingers and right back.
 
         
 
              After the work related injury, claimant was off work from 
 
         January 28, 1983 to January 16, 1984.  During that time frame, 
 
         claimant was seen by a number of medical personnel.
 
         
 
              The day after the date of the injury in question, claimant 
 
         was seen by her physician, L. John Flage, M.D.  According to the 
 
         doctor's notes for January 28, 1983, he reported in relevant 
 
         portion:
 
         
 
              This pt. comes in today for a W/C injury at MHI she has 
 
              a or was near some-one who had TB at the hosp. and was 
 
              given a TBTINE skin test, this pt.'s big problem she 
 
              had an accident back in 1977 involving a whip-lash 
 
              injury in her neck this has done fairly well however 
 
              she was helping with a agitated pt. at MHI and she 
 
              reinjured some of these old things she has pain in the 
 
              neck burning sensation, she has severe pain over the 
 
              tip of the scapulae superiorly and medially and this is 
 
              a scapulaitis or buritis [sic] of the scapula she was 
 
              adviced [sic] to use heat rest we will give her some 
 
              time off and also this pt. was adviced [sic] to use 
 
              Mortin [sic] 600 1 after each meal & HS, we will put 
 
              this pt. on Bufferin #3 1 prn for pain and we will 
 
              follow this pt. along This pt. has done well we will 
 
              try to get a hold of her original [sic] x-rays as she 
 
              maysome [sic] calcium [sic] in that one painful tigger 
 
              [sic] area. and we will follow this pt along. and we 
 
              will see her in one weeks time.
 
         
 
              Claimant was hospitalized from February 6, 1983 to February 
 
         28, 1983 where she was placed in traction and given physical 
 
         therapy.  On March 10, 1983, claimant began physical therapy on 
 
         an outpatient basis per the instructions of an orthopedic 
 
         specialist, Arnold E. Delbridge, M.D., P.C.
 
         
 
              On July 30, 1984, claimant received a functional impairment 
 
         rating from Dr. Delbridge.  He had seen claimant on two occasions 
 
         in that year.  He determined claimant's condition as follows:
 
         
 
              On the January 10, 1984 visit we note that her range of 
 
              motion of her neck is reasonably good.  She continues 
 
              to have persistent pain in her mid-back and neck.  She 
 
              has a good range of motion of her lumbar spine.  There 
 
              is some pain and tingling in her left upper extremity 
 
              but no demonstrable reflex or sensory changes.  I did 
 
              as you know, send her for an electrophysiologic 
 
              analysis of both upper extremities with the 
 
              neurologist.  He felt there was no demonstrable 
 
              difficulty with the EMG.
 
         
 
              On June 7, 1984 I saw Julie Johnson.  She still has 
 
              occasional tingling in her upper extremity.  She has a 
 
              loss of side to side bending of ten degrees to the 
 
              left.  She continues to have pain in her upper back and 
 
              mid-back and up into her neck.  When her neck tightens 
 
              up her lower back does flare up from time to time.  She 
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE   4
 
         
 
         
 
         
 
              can not play tennis.  She can't bowl.  She has trouble 
 
              with jobs where there is pushing.  This patient has 
 
              difficulty typing, writing, sewing and painting and she 
 
              has occasional to frequent tingling in both hands and 
 
              fingers.  She experiences rather constant pain in her 
 
              neck and upper back.
 
         
 
              I sent Mrs. Johnson back to work on January 18, 1984.  
 
              I noted that she was going to be working on a job that 
 
              did not require a great deal of heavy lifting.  As far 
 
              as Julie Johnson is concerned I think this heavy 
 
              lifting restriction is going to hae [sic] to be 
 
              indefinite and by heavy I would suggest any lifting 
 
              over twenty pounds as being too heavy for her.  I would 
 
              also suggest that she will have permanent difficulties 
 
              as a result of her injury in terms of discomfort and 
 
              possibly a loss of motion and also in terms of possibly 
 
              some paresthesias in her upper extremity.
 
         
 
              Taking into consideration all of these difficulties I 
 
              would suggest a permanency rating of 4% of the total 
 
              man.
 
         
 
              Claimant was also seen by another orthopedic specialist, 
 
         Jitendra D. Kothari, M.D., in March of 1983.  He diagnosed 
 
         claimant's condition as follows.
 
         
 
              My clinical impression would be that of muscular and 
 
              ligamentous strain to the cervical spine and right 
 
              shoulder pain, probably tendinitis.
 
         
 
              Later in September of 1983, claimant was again seen by Dr. 
 
         Kothari.  He wrote in his letter of September 21, 1983:
 
         
 
              Miss Johnson was in the office on September 19, 1983.  
 
              Miss Johnson continues to have pain in her shoulders 
 
              and occasional pain in the arms.  The conservative 
 
              treatment has not been beneficial so far.  On the 
 
              objective clinical examination, I did not find any 
 
              neurological deficit.
 
         
 
              In view of the persistent symptoms, a referral to Iowa 
 
              City or the Mayo Clinic was suggested.  If she decides 
 
              to have the referral, she will get in touch with Doctor 
 
              Flage for the arrangements.
 
         
 
              In May of 1983, claimant was evaluated and treated by 
 
         Bradley J. Brown, D.C.  He reported in his letter of May 31, 
 
         1983:
 
         
 
         
 
              Treatment
 
         
 
              Treatment for the injuries has begun in the form of 
 
              manual spinal manipulation to reduce and mobilize the 
 
              subluxation/fixation, and ultra-sound therapy with 
 
              electronic muscle stimulation and trigger point therapy 
 
              were implemented as an adjunct to the manipulative 
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE   5
 
         
 
         
 
         
 
              treatment.
 
         
 
              Prognosis
 
         
 
              The prognosis  for full recovery, although optimistic 
 
              is at this time guarded.  Further treatment, 
 
              examination, and monitoring of the condition is 
 
              necessary to arrive at any further prognosis.
 
         
 
              In March of 1986, Dr. Brown evaluated claimant.  In his 
 
         letter of March 21, 1986, he wrote:
 
         
 
              The diagnosis is as follows:
 
         
 
              1)  Chronic, moderate, post traumatic cervical 
 
              sprain/strain w/associated deep & superficial muscle 
 
              spasm; myofascitis and radiculitis; radiating the 
 
              tragectory of the brachial plexes [sic] bilaterally, 
 
              accompanied by sub-occipital myodysneuria.
 
         
 
              2)  Chronic, moderate, post traumatic thorasic [sic] 
 
              strain w/associated deep & superficial muscle spasm; 
 
              myofascitis.
 
         
 
              3)  Chronic, moderate, post traumatic lumbar 
 
              sprain/strain w/associated deep & superficial muscle 
 
              spasm; myofascitis and radiculitis; radiating the 
 
              tragectory of the rt lumbosacral plexes [sic].
 
         
 
              Treatment has been in the form of manipulation of 
 
              affected spinal motor units, with electrical trigger 
 
              point stimulation to the related soft tissues used as 
 
              an adjunct.  She has been treated on a periodic basis 
 
              as dictated by symptoms, with monitoring of her 
 
              condition.
 
         
 
              It is my opinion that her condition is a direct result 
 
              of the injuries suffered in the work-related incident 
 
              of January 27, 1983.  It is my opinion that Julie will 
 
              require future periodic care, as dictated by symptoms, 
 
              to maintain maximum medical improvement.  Based upon 
 
              her frequency of treatment over the past year, a 
 
              guarded estimate of future treatment would be 12 to 18 
 
              per year.
 
         
 
              I believe that Julie has suffered permanent injury due 
 
              to the on-the-job accident.  I estimate permanent 
 
              partial disability at 10% of whole person.
 
         
 
              Pursuant to a request by claimant's attorney, was also 
 
         evaluated by Walter B. Eidbo, M.D.  He examined claimant on at 
 
         least three occasions.  Dr. Eidbo, after his first examination 
 
         wrote:
 
         
 
              Physical examination reveals a well-developed, obese, 
 
              white female.  Examination reveals that when she moves 
 
              her right shoulder, there is a crackling sensation 
 
              which is palpable and audible in the shoulder.  She has 
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE   6
 
         
 
         
 
         
 
              equal strength bilaterally in her arms, full motion to 
 
              the back, pain on motion to the lumbosacral spine, of 
 
              the cervical spine and the right shoulder blade area.  
 
              There is also pain in the dorsal spine area on motion.  
 
              The deep tendon reflexes are equal bilaterally in the 
 
              ankle jerk and the knee jerk.  The triceps jerk is 
 
              equivocal; all the other deep tendon reflexes are equal 
 
              and physiologic.  It is my impression that Julie has a 
 
              strain of her cervical, dorsal, and lumbosacral spines, 
 
              and to the right scapular muscles.
 
         
 
              Dr. Eidbo again evaluated claimant.  He determined in his 
 
         letter of December 9, 1986:
 
         
 
              In reference to the strain of her cervical, dorsal and 
 
              lumbosacral spines, and scapular muscles, which she 
 
              dates from the injury of January 27, 1983, I have come 
 
              to the following conclusion.  She was, in effect, 
 
              totally disabled from working from January 27, 1983 to 
 
              January of 1984, as she states she could not work and 
 
              did not work at that time.  I did not see her during 
 
              that period of time.  She presently has a partial 
 
              disability, dating from 1984 to the present time.  In 
 
              view of her symptomatology, I would place her permanent 
 
     
 
         
 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE   7
 
         
 
         
 
         
 
              disability in the range of 9 percent, that is a 
 
              permanent total body disability.
 
         
 
              Claimant was also evaluated by David J. Boarini, M.D., a 
 
         neurological surgeon, on April 13, 1987.  The evaluation was 
 
         requested by defendants' attorney.  In his letter of May 15, 
 
         1987, Dr. Boarini wrote:
 
         
 
              Upon examination, this is a markedly obese young woman.  
 
              She has a normal range of motion in the neck and a 
 
              normal range of motion in the lower back in all 
 
              directions.  There is no palpable muscle spasm or 
 
              tenderness in either place.
 
         
 
              Straight leg raising is negative bilaterally.  Strength 
 
              in the lower extremities and upper extremities is 
 
              entirely normal in all muscle groups.  The patient has 
 
              normal sensation to pin, touch and vibration in all 
 
              four extremities.  Deep tendon reflexes are 1 by 1, 
 
              physiologic and symmetrical in the upper and lower 
 
              extremities.  Plantar reflexes are downgoing.
 
         
 
              I reviewed a set of cervical spine films from August of 
 
              1986 which are normal.  Thoracic and lumbosacral spine 
 
              films done at the same time are also unremarkable.
 
         
 
              In summary, this patient now has an entirely normal 
 
              examination.  She had a minor back injury in January of 
 
              1983.  I don't believe there was any permanent 
 
              impairment related to that injury.  I would certainly 
 
              consider the maximum period of medical healing to have 
 
              been well completed within the year she was off.  I 
 
              think at the present time she has chronic myofascial 
 
              neck pain.  I don't think this is directly related to 
 
              the previous incident but is in fact, more attributable 
 
              to obesity and poor physical condition.  I find no 
 
              physical impairment and so have no basis to give her a 
 
              permanent impairment rating.  I've explained to her 
 
              that I think weight loss and physical therapy, along 
 
              with mild anti-inflammatories, would [sic] an 
 
              appropriate treatment.
 
         
 
              When claimant returned to work on January 18, 1984, she took 
 
         a voluntary demotion from a resident treatment technician to a 
 
         resident treatment worker.  Claimant's biweekly gross wages were 
 
         reduced from $572.00 to $544.80.  Claimant's physician issued a 
 
         work release which specified a job on the children's ward.
 
         
 
              Since her voluntary demotion, claimant reported the 
 
         following relative to her job duties at work:
 
         
 
              Q.  What types of things at work can you no longer 
 
              perform?
 
         
 
              A.  Many of the things that I did before.  There was a 
 
              lot of patient care that I performed before, with the 
 
              bedridden patients where there was lifting, turning, 
 
              changing of the linens underneath them or restraining 
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE   8
 
         
 
         
 
         
 
              of patients that were agitated.  A lot of the heavy 
 
              housekeeping duties that we used to have, that I used 
 
              to have, I can no longer do. I basically just can't -- 
 
              I can't do much of anything that I did before as a 
 
              technician.  The duties are a lot different at 
 
              Cromwell.
 
              Q.  Is there any potential for advancement for you in 
 
              the position that you took the voluntary demotion?
 
         
 
              A.  Not that I can see, no.
 
         
 
         (Transcript page 80, line 12 to page 81, line 1)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on January 27, 1983 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 27, 1983 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt  247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756,    
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened c)r lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, (1962).
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE   9
 
         
 
         
 
         
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591,      
 
         (1960).
 
         
 
              Our supreme court has stated many times 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 Hospital 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., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 
 
         N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 
 
         N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).. 
 
         See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 
 
         Iowa 724, 254 N.W. 35 (1934).
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              The opinion of the supreme court in Olson, 255 Iowa 1112, 
 
         125 N.W.2d 251 (1963) at 1121.,    , cited with approval a 
 
         decision of the industrial commissioner for the following 
 
         proposition:
 
         
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE  10
 
         
 
         
 
         
 
              Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered . . . In 
 
              determining industrial disability, consideration may be 
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted. * * * *
 
         
 
              Functional disability 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).
 
         
 
              In Parr v. Nash Finch Co., (Appeal Decision, October 31, 
 
         1980) the industrial commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for 
 
              the reduction in earning capacity it is undeniable that 
 
     
 
         
 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE  11
 
         
 
         
 
         
 
              it was the "loss of earnings" caused by the job 
 
              transfer for reasons related to the injury that the 
 
              court was indicating justified a finding of "industrial 
 
              disability."  Therefore, if a worker is placed in a 
 
              position by his employer after an injury to the body as 
 
              a whole and because of the injury which results in an 
 
              actual reduction in earning, it would appear this would 
 
              justify an award of industrial disability.  This would 
 
              appear to be so even if the worker's "capacity" to earn 
 
              has not been diminished.
 
         
 
                                  ANALYSIS
 
         
 
              The first issue to address is whether claimant has 
 
         established there is a causal connection between the injury and 
 
         the disability for which she is making a claim.  Claimant's back 
 
         problems predated the claimed injury.  In 1977 claimant had an 
 
         automobile accident which injured her back.. Her chiropractor 
 
         opined claimant would require future treatments due to the stress 
 
         and strain of her occupation.  Claimant continued with those 
 
         treatments through July of 1982.  Claimant had another treatment 
 
         17 days prior to the date of the work related injury.  Claimant 
 
         complained of the same type of pain as she had experienced 
 
         subsequent to the date of the work injury.  Also between the date 
 
         of the back injury and the date of the work injury, claimant had 
 
         missed approximately 10 days of work due to back spasms.  As of 
 
         January 10, 1983, claimant was under restrictions for lifting.  
 
         No functional impairment rating was ever provided by a 
 
         physician.
 
         
 
              While claimant had a preexisting back injury, her condition 
 
         was aggravated, worsened or lighted up by the kicking incident 
 
         which occurred on January 27, 1983.  Claimant testified that 
 
         after the work injury, her pain "...was more severe afterwards 
 
         and constant."
 
         (Tr. p. 33, 1. 14)
 
         
 
              Claimant also testified that she had more severe headaches 
 
         after the work related injury.  She stated:
 
         
 
              Q.  And your other pain was located, as I understand 
 
              it, in your neck, shoulder, back?
 
         
 
              A.  Upper back, neck, some headaches, some in the lower 
 
              back.
 
         
 
              Q.  Were your headaches any more frequent or different 
 
              than any of the headaches you felt prior to the night 
 
              of the injuries?
 
         
 
              A.  They were continual at that point, just the degree 
 
              of severity would vary from day-to-day.
 
         
 
         (Tr. p. 59, 1. 23 to p. 60, 1. 6)
 
         
 
              Claimant was unable to work for almost one year after the 
 
         date of the work injury.  Even after she was released to work, 
 
         claimant was placed on a restricted duty assignment which 
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE  12
 
         
 
         
 
         
 
         prevented claimant from associating with potentially explosive 
 
         patients.  After the work related injury, claimant was also 
 
         prohibited from engaging in heavy lifting or performing certain 
 
         housekeeping chores which she was able to accomplish prior to 
 
         January 27, 1983.  These restrictions were more severe than the 
 
         ones claimant had encountered prior to the date of her work 
 
         injury.  Claimant, as a result, was forced to accept a less 
 
         strenuous position at the Mental Health Institute.
 
         
 
              Medical testimony supports the position that claimant 
 
         aggravated a preexisting condition.  Claimant's personal 
 
         physician, Dr. Flage, wrote in his notes on January 28, 1983 that 
 
         claimant had reinjured an old auto accident when she was kicked 
 
         by an unruly patient.  Dr. Brown also determined her condition 
 
         was the direct result of the kicking incident.  Claimant has 
 
         satisfied her burden that she aggravated a preexisting 
 
         condition.
 
         
 
              The next issue to consider is whether claimant has received 
 
         a permanent partial disability.  The following opinions 
 
         concerning functional impairment are summarized:
 
         
 
              1)  Dr. Delbridge - "4% permanency rating of total 
 
              man;"
 
         
 
              2)  Dr. Brown - "permanent partial disability at 10% of 
 
              whole person;"
 
         
 
              3)  Dr. Eidbo - "Permanent disability in the range of 1 
 
              percent, that is a permanent total body disability;"
 
         
 
              4)  Dr. Boarini - "this patient now has an entirely 
 
              normal examination ... I don't believe there was any 
 
              permanent impairment related to that injury."
 
         
 
              Claimant has established she has a functional impairment 
 
         which is compensable.
 
         
 
              Claimant alleges she has an industrial disability greater 
 
         than her functional impairment rating.  To bolster her position, 
 
         claimant testified she voluntarily downgraded her position from a 
 
         Mental Health Worker III to a Mental Health Worker II so that she 
 
         could avoid the physically demanding duties of a III.  Claimant 
 
         declared this voluntary downgrade was necessary in light of her 
 
         doctor's restrictions.  As a result of her downgrade, claimant 
 
         estimated she would lose approximately $2,000.00 per year in 
 
         gross wages and she would have very few opportunities for 
 
         promotions.
 
         
 
              Defendants allege the voluntary demotion was unnecessary.  
 
         They assert the demotion was motivated because of a personality 
 
         clash between claimant and her supervisor, Elizabeth Lucy 
 
         Marchiando, and because claimant was dissatisfied with the ward 
 
         to which she was assigned in December of 1982.
 
         
 
              Claimant, in support of her claim for an industrial 
 
         disability also reports this job is the only full time position 
 
         which she has ever held.  Claimant has a high school diploma but 
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE  13
 
         
 
         
 
         
 
         little training beyond that level.  Claimant asserts she will not 
 
         be promoted because of other physical limitations.  It is 
 
         doubtful, given claimant's educational background, whether she 
 
         will be promoted to a purely desk type position.
 
         
 
              In light of the foregoing, the undersigned finds claimant 
 
         voluntarily demoted because of her back problems and her job 
 
         restrictions.  Claimant may not have been euphoric over the ward 
 
         she was previously assigned.  Nevertheless, claimant has 
 
         established she needed a less physically demanding position than 
 
         the one she held on January 27, 1983.  Furthermore, since 
 
         claimant's demotion, she has been able to satisfactorily complete 
 
         her assigned tasks.  Claimant has established there is a loss of 
 
         earnings and a loss of earning capacity because of her work 
 
         injury.  In the case at hand, claimant has met her burden of 
 
         proving she has an industrial disability.
 
         
 
              With respect to the issue of medical benefits under section 
 
         85.27, claimant requests reimbursement for various expenditures. 
 
          Defendants assert the bills are not causally connected to 
 
         claimant's work injury and that the treatment from Dr. Brown, Dr. 
 
         Eidbo and Dr. Kothari are not authorized.
 
         
 
              Iowa Code section 85.27 provides that the claimant is 
 
         entitled to reasonable medical expenses for a work related 
 
         injury.  The employer and its insurance carrier have the right to 
 
         choose a treating physician, but section 85.27 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., File No. 694639 
 
         (Review-reopening Decision, Filed June 17, 1986); Martin v. 
 
         Armour Dial, Inc., File No. 754732 (Arbitration Decision, Filed 
 
         July 31, 1985).
 
         
 
              The treatment by Dr. Kothari was authorized treatment. 
 
         originally, claimant was referred by the in-house doctor, Dr. 
 
         Calderon, to claimant's own physician, Dr. Flage.  Dr. Flage 
 
         later referred claimant to Dr. Kothari.  Defendants cannot now 
 
         deny responsibility because they acquiesced to Dr. Flage's 
 
         treatment.
 
         
 
              There is no evidence to indicate claimant was referred to 
 
         Dr. Brown by Dr. Flage.  Nevertheless, claimant testified she 
 
         received relief from the treatment provided by Dr. Brown.
 
         
 
              Unauthorized treatment which improves an employee's 
 
         condition and which ultimately may mitigate the employer's 
 
         liability may subsequently be found reasonable and necessary for 
 
         treatment of an injury.  Butcher v. Valley Sheet Metal, IV Iowa 
 
         Industrial Commissioner Report 49 (Appeal Decision 1983); 
 
         Rittgers v. United Parcel Service, III Iowa Industrial 
 
         Commissioner Report 210 (Appeal Decision 1982); Hutchinson v. 
 
         American Freight Systems, Inc., I-1 Iowa Industrial Commissioner 
 
         Decision 94 (Appeal Decision 1984).  The evidence, in the instant 
 
         proceeding, is uncontroverted that claimant's condition unproved 
 
         subsequent to the therapy which she received from Dr. Brown.  
 
         Claimant is entitled to be reimbursed for expenditures incurred 
 
         as a result of Dr. Brown's treatment.
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE  14
 
         
 
         
 
         
 
         
 
              Likewise, for the same reasons as above, claimant is 
 
         entitled to be reimbursed for prescription charges.
 
         
 
              Claimant is not entitled to be reimbursed for the charges of 
 
         Dr. Eidbo.  These involved charges for examinations and 
 
         evaluations incidental to trial preparation.  The charges were 
 
         not made pursuant to a request under section 85.39.  Dr. Eidbo 
 
         was not the treating physician.  His charges were unauthorized.
 
         
 
              Finally, defendants are entitled to a credit for Blue 
 
         Cross/Blue Shield payments in the amount of $333.95.  Said credit 
 
         is authorized pursuant to section 85.38(2) of the Iowa Code 
 
         (1987).
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE,, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  Claimant sustained injuries arising out of and 
 
         in the course of employment which aggravated a preexisting 
 
         condition.
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE  15
 
         
 
         
 
         
 
         
 
              CONCLUSION A.  As a result of the January 27, 1983 injury, 
 
         claimant has a functional impairment of four to ten percent of 
 
         the body as a whole.
 
         
 
              FINDING 2.  Claimant is a 32 year old high school educated 
 
         woman who has limited experience outside of her present 
 
         position.
 
         
 
              FINDING 3.  Claimant, due to her back injury, took a 
 
         voluntary demotion.
 
         
 
              FINDING 4.  Claimant has lost  approximately  $2,000.00 in 
 
         gross wages per year as a result of her voluntary  demotion.
 
         
 
              CONCLUSION B.  Claimant has met her burden of proving she 
 
         has a 20 percent permanent partial disability.
 
         
 
              FINDING 5.  Claimant has incurred medical expenses which she 
 
         is entitled to have reimbursed.
 
         
 
              CONCLUSION C.  Claimant is entitled to the reimbursement of 
 
         the following medical expenses:
 
         
 
              Dr. Bradley Brown             $3,204.00
 
              Family Pharmacy                  102.29
 
              Medicine Store                    56.20
 
              Medicap Pharmacy                 355.74
 
              Dr. Kothari                       20.00
 
                            Total           $3,738.23
 
         
 
              FINDING 6.  Claimant filed a motion to tax certain matters 
 
         as costs.
 
         
 
              CONCLUSION D.  Claimant is entitled to have the following 
 
         items taxed as costs to the defendants and claimant is entitled 
 
         to be reimbursed for the same.
 
         
 
               Medical report fees from Dr. Bradley Brown     $  70.00
 
               St. Luke's Hospital record fees                    5.00
 
               Report fees from Dr. Arnold Delbridge            108.50
 
               People's Memorial Hospital fees                   17.50
 
               Deposition fees to Van Wyngarden
 
                CoUrt Reporters                                 649.70
 
               Mailing fees                                       3.34
 
                                   Total                       $854.04
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendants are to pay unto claimant one hundred 
 
         (100) weeks of permanent partial disability benefits at the 
 
         stipulated rate of one hundred seventy-one and 78/100 dollars 
 
         ($171.78) per week.
 
         
 
              Defendants are to reimburse claimant for the medical 
 
         expenses listed previously in the amount of three thousand seven 
 
         hundred thirty-eight and 23/100 dollars ($3,738.23).
 
         
 

 
         
 
         
 
         
 
         JOHNSON V. STATE OF IOWA-MENTAL HEALTH INSTITUTE
 
         PAGE  16
 
         
 
         
 
         
 
              Defendants are to reimburse claimant for the costs listed 
 
         previously in the amount of eight hundred fifty-four and 04/100 
 
         dollars ($854.04).
 
         
 
              Defendants shall receive credit for benefits previously 
 
         paid.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa code 
 
         section 85.30.
 
         
 
         other costs of this action not previously advanced by claimant 
 
         are assessed against the defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a final report upon payment of this 
 
         award.
 
         
 
         
 
              Signed and dated this 15th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. Thomas M. Werner
 
         Attorney at Law
 
         1150 Polk Blvd.
 
         Des Moines, Iowa 50311
 
         
 
         Mr. Greg Knoploh
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1803
 
                                                     November 15, 1988
 
                                                     MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JULIE SUSAN JOHNSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 725377
 
         STATE OF IOWA-MENTAL HEALTH
 
         INSTITUTE,                           A R B I T R A T I O N
 
         
 
              Employer,                           D E C I S I O N
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded 20 percent industrial disability subsequent 
 
         to injury of claimant's back.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ROBERT CORMAN,
 
         
 
              Claimant,                             File No. 725770
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         VAN BUREN COUNTY ALCOHOL PLANT,            D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      APR 27 1988
 
         HARTFORD INSURANCE COMPANY,
 
                                            IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Robert 
 
         Corman, claimant, against Van Buren County Alcohol Plant, 
 
         employer, and Hartford Insurance Company, insurance carrier, 
 
         defendants, for benefits as a result of an injury that occurred 
 
         on January 14, 1983.  A hearing was held on August 6, 1987 at 
 
         Burlington, Iowa and the case was fully submitted at the close of 
 
         the hearing.  The record consists of the testimony of Linda 
 
         Corman (claimant's wife), Robert Corman (claimant), claimant's 
 
         exhibits one through 85 and defendants' exhibits A through D.  
 
         Claimant's attorney submitted an excellent brief.  Defendants' 
 
         attorney did not submit a brief.
 
         
 
                                   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 January 14, 1983 which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the alleged injury was the cause of temporary 
 
         disability due to the injury to claimant's neck, right shoulder 
 
         and back.
 
         
 
              That claimant is entitled to temporary disability benefits 
 
         for the injury to his neck, right shoulder and back from January 
 
         14, 1983 to August 17, 1984 and that such benefits have already 
 
         been paid.
 
         
 
              That all of claimant's medical expenses for the treatment of 
 
                                                
 
                                                         
 
         claimant's neck, right shoulder and back have been or will be 
 
         paid by defendants.
 
         
 
              That during the course of his medical treatment for his 
 
         neck, right shoulder and back, claimant developed herpes zoster 
 
         and that the only issue in this case is whether the herpes zoster 
 
         condition was caused by the injury of January 14, 1983.
 
         
 
              That if it is determined that claimant's herpes zoster 
 
         condition was caused by the injury of January 14, 1983, then the 
 
         parties have agreed that claimant is entitled to a running award 
 
         of temporary disability benefits from August 17, 1984 
 
         indefinitely into the future and that claimant will then be 
 
         entitled to payment of his medical expenses for the treatment of 
 
         the herpes zoster condition.
 
         
 
              That claimant's entitlement to permanent partial disability 
 
         benefits for his neck, right shoulder and back cannot be 
 
         determined until the herpes zoster condition is healed or 
 
         stabilized.
 
         
 
              That whether claimant is or is not an odd-lot employee is 
 
         not an issue in this case at this time and it cannot be 
 
         determined whether he is or is not an odd-lot employee until the 
 
         herpes zoster issue is resolved.
 
         
 
              That the rate of compensation, in the event of an award, for 
 
         the herpes zoster condition is $261.97 per week.
 
         
 
              That defendants make no claim for credit for benefits paid 
 
         under an employee nonoccupational group health plan.
 
         
 
              That defendants make no claim for any workers' compensation 
 
         benefits paid for the herpes zoster condition prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The issues submitted by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether the injury of January 14, 1983 was the cause of the 
 
         herpes zoster condition of claimant.
 
         
 
              Whether claimant is entitled to temporary disability 
 
         benefits for the herpes zoster condition.
 
         
 
              Whether claimant is entitled to payment of medical expenses 
 
         for the herpes zoster condition.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
                                                
 
                                                         
 
         
 
              Claimant was injured on January 14, 1983 by lifting heavy 
 
         burners from a combuster (1st report of injury).  Claimant did 
 
         not feel the immediate onset of pain while doing the task.  
 
         Rather, his shoulder became sore a short time later.  Claimant 
 
         saw his family physician, Richard D. Breckenridge, D.O., several 
 
         times at the emergency room of the hospital from January 16, 1983 
 
         to February 15, 1983 for right shoulder pain which Dr. 
 
         Breckenridge diagnosed as acute intracostal neuralgia.  He 
 
         treated claimant with medications and physical therapy.
 
         
 
              Linda Corman, claimant's wife, testified that she is a 
 
         registered nurse.  She is employed as the director of nursing 
 
         services at a nursing home.  Prior to this injury claimant was 
 
         healthy and worked many hours everyday.  She went with her 
 
         husband to the doctors and hospitals.  She testified and claimant 
 
         testified that Dr. Breckenridge gave claimant an injection of 
 
         cortisone at the site of the injury.  Dr. Breckenridge confirmed 
 
         that he did give claimant a cortisone injection on January 18, 
 
         1983 and again on January 20, 1983 (Exhibit 32; Ex. 19, page 76). 
 
         Dr. Breckenridge reported several times at exhibits 27, 28, 29 
 
         and 30.
 
         
 
              Dr. Breckenridge referred claimant to Donald D. Berg, M.D., 
 
         an orthopedic surgeon in Ottumwa, on January 22, 1983.  On 
 
         February 15, 1983, Dr. Berg said that claimant had a cervical 
 
         nerve root impingement with radiating pain into the right arm 
 
         probably secondary to a cervical disc (Ex. 31).  Claimant's wife 
 
         testified that claimant was hospitalized at St. Joseph's Hospital 
 
         in Ottumwa by Dr. Berg from January 22, 1983 to February 2, 1983. 
 
         She further testified that claimant was given cortisone daily. 
 
         Claimant also testified that he received cortisone from the nurse 
 
         during this hospitalization.  Dr. Berg reported claimant received 
 
         Indocin but he did not say that claimant received cortisone or 
 
         any steroid (Ex. 19, pp. 73 & 74; Ex. B).  The St. Joseph's 
 
         Hospital records also state that claimant received Indocin.  
 
         Cortisone or steroid are not mentioned.  Hyperlipidemia was also 
 
         diagnosed (Ex. 19, pp. 68 & 81).  Dr. Berg also stated that he 
 
         prescribed Percodan on April 29, 1983 but no mention is made of 
 
         cortisone or a steroid (Ex. 19, pp. 67, 68, 75, 82, 83, 88, 89).  
 
         In a narrative report dated April 18, 1983 Dr. Berg said claimant 
 
         was unable to work on April 7, 1983.  Dr. Berg added that he was 
 
         referring claimant to an orthopedic surgeon for removal of a 
 
         cervical disc (Ex. B).
 
         
 
              Claimant was then hospitalized at Iowa City from July 7, 
 
         1983 to July 21, 1983 for tests and treatment.  Gerald W. Howe, 
 
         M.D., an orthopedic surgeon, examined claimant at Mercy Hospital, 
 
         in Iowa City, at the request of Dr. Berg.  Cervical surgery was 
 
         initially contemplated but Dr. Howe eventually decided it was not 
 
         needed (Ex. 19, pp. 70 & 72).  Dr. Howe then referred claimant to 
 
         James Worrell, M.D., a neurologist in Iowa City.  Claimant's wife 
 
         stated that Dr. Howe gave claimant two large cortisone injections 
 
         on two occasions.  Claimant also stated that Dr. Howe gave him 
 
         cortisone injections on two occasions.  These injections cannot 
 
                                                
 
                                                         
 
         be verified from Dr. Howe's records or the hospital records as 
 
         having been given or not been given (Ex. 19, pp. 70 & 72).
 
         
 
              Claimant was initially hospitalized at Iowa City for a 
 
         cervical myelogram for a probable C-5 right radiculopathy after 
 
         conservative treatment had failed (Ex. 35, pp. 117 & 118).  The 
 
         myelogram of July 7, 1983 showed a normal flow pattern.  There 
 
         was no evidence of obstruction or blockage (Ex. 36).  Dr. Worrell 
 
         then performed an EMG on July 9, 1983 which revealed denervation 
 
         of the serratus anterior muscle (Ex. 39).  Chest x-ray, bone scan 
 
         and CT scan were normal (Ex. 1, pp. 38, 39, 41 & 43; Exs. 47 & 
 
         48). Claimant complained of severe pain in the right shoulder 
 
         blade, neck and arm but it was determined that there was no 
 
         surgically correctable lesion.  The only physical finding that 
 
         could be made was some weakness of the serratus anterior muscle 
 
         which brought about what was described as winging of the scapula 
 
         on the right (Ex. 47).
 
         
 
              Claimant's wife testified that Dr. Worrell gave claimant 
 
         Prednisone daily from July 7, 1983 to July 21, 1983 during this 
 
         period of hospitalization.  Claimant also testified that he took 
 
         a cortisone pill prescribed by Dr. Worrell and got a reaction 
 
         from it.  He said that his face got big, he gained 20 pounds, he 
 
         could not breathe and he broke out in sores on his arms and back.  
 
         He added that Dr. Worrell is still treating him for this 
 
                             
 
                                                
 
                                                         
 
         condition.
 
         
 
              Claimant returned to the emergency room on July 30, 1987 
 
         with swollen ankles, hands and face; a 20 to 25 pound weight 
 
         gain; increased abdominal girth; shortness of breath and 
 
         weakness.  This was diagnosed as herpes zoster and claimant was 
 
         readmitted to the hospital (Ex. 44).  Dr. Worrell said that 
 
         claimant developed a marked steroid effect with edema, weight 
 
         gain and the like. Claimant then developed a clearly herpetic 
 
         eruption involving the left C-5 and C-6 distribution which he 
 
         noted was the opposite side from claimant's cervical 
 
         radiculopathy symptoms.  The herpes zoster extended down 
 
         claimant's left arm to the palm, hand and thumb.  There were no 
 
         changes in the right arm (Ex. 49).  Claimant was hospitalized for 
 
         this condition until he was discharged on August 12, 1983 (Ex. 
 
         50).
 
         
 
              The hospital records from July 7, 1983 to July 21, 1983 do 
 
         not show precisely what prescriptions that claimant did or did 
 
         not take during this period of hospitalization (Ex. 47, pp. 140 & 
 
         141).  However on August 2, 1983 while claimant was hospitalized 
 
         for this steroid reaction Dr. Worrell noted:
 
         
 
                   We had tried him on extensive medication programs and 
 
              physical theray [sic] with minimal improvement.  He was 
 
              discharged on Amitriptyline, 50 mg during the day and 100 mg 
 
              at night, and a transcutaneous stimulation unit.  He was 
 
              also given Motrin and a tapering course of Decadron.  At the 
 
              time of discharge, he was only on 0.75 mg of Decadron three 
 
              times a day.  Unfortunately, he has then developed rather 
 
              marked steroid effect with edema, weight gain, and the like. 
 
               He then developed clearly a herpetic eruption involving the 
 
              left C5 and C6 distribution.
 
         
 
         (Ex. 49)
 
         
 
              Claimant's physical examination showed a clear case of 
 
         steroid effect and marked herpes zoster (Ex. 49).
 
         
 
              Dr. Worrell gave this report to the insurance carrier on 
 
         August 15, 1983.
 
         
 
              Mr. Corman did sustain an injury to his back in January and 
 
              I do feel his subsequent problems are entirely related to 
 
              that. Please refer to the records being sent along with this 
 
              letter.  His present condition is work related.  The last 
 
              admission which was about a week ago now was necessitated 
 
              because he developed a bout of herpes zoster involving the 
 
              cervical dermatomes on the left arm at exactly the same 
 
              distribution as the problem was on the right side.  This was 
 
              probably brought on by the Decadron that I had given him to 
 
              try to treat his previous condition.
 
         
 
         (Ex. 1, p. 29; Ex. 52)
 
         
 
                                                
 
                                                         
 
              Dr. Worrell reported to Dr. Breckenridge that arm symptoms 
 
         as well as generalized herpes zoster continued to persist on 
 
         August 30, 1983 and September 26, 1983 (Exs. 54 & 58).  He 
 
         reported to the insurance carrier on November 3, 1983 that 
 
         claimant's neck and shoulder problems and herpes zoster problems 
 
         continue and added that claimant was still totally disabled (Ex. 
 
         60).  On November 7, 1983 the herpes zoster affected claimant's 
 
         right thorax, left shoulder and his genitals (Ex. 61).
 
         
 
              Dr. Worrell sent claimant to the University of Iowa 
 
         Hospitals and Clinics, Division of Infectious Diseases for an 
 
         evaluation. Claimant was seen on November 16, 1983.  Ian M. 
 
         Smith, M.D., recited that accident history and then added:
 
         
 
                   He was treated with shots and oral Prednisone over 2 
 
              1/2 weeks (unknown dose).  He had fluid retention and moon 
 
              facies and developed herpes zoster on the left upper arm and 
 
              back with residual pain.  This didn't clear completely and 
 
              he had a lesion on the right upper arm and then 
 
              disseminated.  Oral, eyes, hands, palms, and legs still have 
 
              lesions.
 
         
 
         (Ex. 17).
 
         
 
              The herpes zoster condition was graphically described by Dr. 
 
         Smith in these words:
 
         
 
                   Physical examination revealed right wing scapula 
 
              discoloration and scarring of both shoulder with 
 
              erythematous maculopapular lesions.  There were 
 
              vesiculopustular areas on the back, chest, and upper arms.  
 
              A penile lesion was raised, scarred, and non-tender, but was 
 
              painful.
 
         
 
         (Ex. 17)
 
         
 
              Dr. Smith concluded as follows:
 
         
 
                   The patient's herpes zoster is resolving.  Since the 
 
              outbreak occurred on Corticosteroids, we do not feel these 
 
              are warranted at this time.  We find no evidence of 
 
              underlying disease, so this should be self-limited.  If he 
 
              is still symptomatic in three months, he should return to 
 
              our clinic for further evaluation.
 
         
 
         (Ex. 17)
 
         
 
              Also, a laboratory report showed that the sample which they 
 
         examined showed that claimant was grossly lipemic (Ex. 18, pp. 65 
 
         & 66).
 
         
 
              Dr. Worrell reported that claimant continued to suffer with 
 
         herpes zoster on November 30, 1983 (Ex. 64), December 20, 1983 
 
         (Ex. 65) and on January 27, 1984 (Ex. 69).  On the last date he 
 
         reported that claimant was still unable to work.  He summarized 
 
                                                
 
                                                         
 
         claimant's status on February 1, 1984 as follows:
 
         
 
                   Mr. Corman came over today and has had a flareup [sic] 
 
              again with severe pain in the left shoulder and upper arm.  
 
              A few more vesicles have popped out on the shoulder and neck 
 
              and on the lip.  He has no systemic symptoms.  Examination 
 
              today is really about the same with some weakness around the 
 
              left shoulder girdle but no increase in his atrophy and no 
 
              other new neurological findings.  He continues to have 
 
              severe herpes zoster related radiculopathy and pain but 
 
              overall the past few months he has had some good weeks also 
 
              and hopefully we are on an improving part of this.  This is 
 
              a most difficult and baffling case to deal with.  Mr. Corman 
 
              is again depressed but I will hold off any antidepressants 
 
              again for awhile and see if he will bounce back on his own.
 
         
 
         (Ex. 70)
 
         
 
              On February 21, 1984 claimant had an unrelated appendectomy 
 
         (Ex. 72).  After a two and one-half month remission, the herpes 
 
         zoster recurred on April 18, 1984 (Ex. 75) and June 4, 1984 (Ex. 
 
         76).
 
         
 
              At the request of defendants, claimant was seen and examined 
 
         and evaluated extensively by several specialists at the Industrial 
 
         Injury Clinic from July 8, 1984 to July 11, 1984 (Ex. D).  
 
         However, the shingles or the herpes zoster condition was not 
 
         specifically addressed other than to be mentioned in passing (Ex. 
 
         D, pp. 1, 7 & 10).  The staff recommendation and conclusions of 
 
         the Industrial Injury Clinic were as follows:
 
         
 
              STAFF RECOMMENDATIONS AND CONCLUSIONS
 
         
 
              1.  In the opinion of the staff, based on review of past 
 
                  medical data and current evaluation, there is no clear 
 
                  mechanism of injury relative to the patient's 
 
                  symptomatic complaints.  This is especially true of the 
 
                  apparent serratus anterior palsy from which he has now 
 
                  essentially recovered.  In any event, from an industrial 
 
                  standpoint at this time, there is no substantial 
 
                  evidence of any significant residual impairment or 
 
                  permanent disability.
 
         
 
              2.  We would recommend from an industrial standpoint that 
 
                  this individual upgrade his level of exercising and 
 
                  physical conditioning.  It is our opinion that if he 
 
                  proceeds responsibly in this regard, that he should be 
 
                  able to return to work on or by 6 August 1984 within the 
 
                  work capacity classification attached to this report.
 
         
 
              3.  At this time we do not see the need for continued formal 
 
                  biomedical, orthomedical or paramedical treatment 
 
                  relative to the industrial incident in question.
 
         
 
         (Ex. D, p. 11)
 
                                                
 
                                                         
 
         
 
              A considerable amount of personality testing and development 
 
         revealed that claimant had little or no motivation to return to 
 
         work due to family dynamics with his wife and mother and the fact 
 
         that his former employer was no longer in business.  This does 
 
         bear indirectly on claimant's disposition to return to work but 
 
         it is not directly related to whether the injury was the cause of 
 
         the herpes zoster condition which is physical, objective and 
 
         medical in nature (Ex. D, p. 63).
 
         
 
              Dr. Worrell was angered by the examination at the Industrial 
 
         Injury Clinic at Neenah, Wisconsin and the termination of 
 
         claimant's benefits.  He expressed his feelings in a letter to 
 
         the insurance carrier dated August 9, 1984 (Ex. 78).
 
         
 
              On October 24, 1984 Dr. Worrell gave a deposition (Ex. 80). 
 
         His testimony generally parallels his reports which have already 
 
         been summarized.  He did state that claimant's pain and 
 
         disability had been aggravated and prolonged quite markedly by 
 
         the chronic herpes zoster.  He felt that the injury caused 
 
         claimant's cervical and shoulder complaints and that eventually 
 
         claimant would have a permanent impairment but it was too early 
 
         to render an opinion (Ex. 80, pp. 7 & 8).  Dr. Worrell explained 
 
         why an injury to the serratus anterior muscle would cause winging 
 
         of the shoulder blade.
 
         
 
                   The winging is actually identified when you are looking 
 
              at the person from behind and they bring their arms up in 
 
              front of them.  In the normal person the shoulder blade will 
 
              stay close to the chest wall, whereas if it's winged or 
 
              there's weakness of these muscles, the shoulder blade will 
 
              actually fan out or look like a, basically like a chicken 
 
              wing as it's coming out.  And for that reason that's why 
 
     
 
                             
 
                                                         
 
              it's called that.
 
         
 
         (Ex. 80, p. 12)
 
         
 
              The condition is caused by a lack of nerves to the muscle 
 
         (Ex. 80, p. 13).  Dr. Worrell granted that claimant's initial 
 
         nerve injury occurred to claimant's right arm, but that the 
 
         herpes zoster condition initially caused pain in the left arm 
 
         (Ex. 80, pp. 16 & 17).  He said that he sent claimant to the 
 
         university to try to determine if there was some underlying 
 
         disease, because herpes zoster is usually self-limiting, that is 
 
         it crops up and will disappear without any specific treatment, 
 
         but claimant's condition had become chronic (Ex. 80, p. 18).  
 
         Defendants counsel asked Dr. Worrell to explain why the traumatic 
 
         injury to the cervical nerves were aggravated or complicated by 
 
         the herpes zoster.  Dr. Worrell responded as follows:
 
         
 
              Q.  What is the reference to "aggravated by" or "complicated 
 
              by the herpes"?  How has that affected the original injury, 
 
              a stretch type injury to the cervical nerves?
 
         
 
              A.  In my judgment what -- And looking through the 
 
              literature on herpes zoster we know that this virus is all 
 
              -- once we've had the chicken pox, this virus is in all of 
 
              us in our nervous system in one place or the other along the 
 
              sensory nerves, near the spinal cord.  And it is noted with 
 
              an injury to the nerve that in some people this will free 
 
              the virus for some reason or another and then produce the 
 
              shingles reaction, which I think this is what has happened 
 
              here with Mr. Corman.  You'll get this sometimes even after 
 
              a lumbar disk operation or something.  The patient after 
 
              surgery a week or so will develop shingles down the leg 
 
              along the same exact course of that nerve.  So we assume the 
 
              injury to the nerve will then produce, for reasons that are 
 
              totally obscure, will allow the herpes zoster inflammation 
 
              to occur along the same course.
 
         
 
              Q.  So there is an association between the two, so you have 
 
              the cervical injury or the stretching of the nerve and then 
 
              ultimately the herpes show up so you deduct from that there 
 
              is a relationship?
 
         
 
              A.  Yes.
 
         
 
         (Ex. 80, pp. 19 & 20)
 
         
 
              Dr. Worrell admitted that you would expect the herpes zoster 
 
         condition to show up earlier than seven or eight months after the 
 
         original injury.  Also, he conceded that it was unusual that the 
 
         herpes zoster followed the left C5 dermatome branch when the 
 
         original injury was to the right side of the body since each side 
 
         has it's own separate dermatome coming off the spinal cord (Ex. 
 
         80, pp. 20 & 21).  Dr. Worrell acknowledged that he did not do a 
 
         nerve conduction study when he performed the EMG (Ex. 80, p. 23). 
 
         He admitted that he had wondered if claimant had a functional 
 
                                                
 
                                                         
 
         overlay when claimant had pain without impingement objective 
 
         findings but he discounted this after the herpes zoster appeared 
 
         because they are very painful (Ex. 80, pp. 29-31).  Dr. Worrell 
 
         said that in his opinion the herpes zoster was at least 
 
         aggravated by what he considered the injury to the cervical nerve 
 
         groups (Ex. 80, p. 36).  But the doctor conceded that the 
 
         question of whether a nerve injury could cause herpes zoster was 
 
         not a matter currently under investigation in the medical 
 
         community and that any literature on it would be uncommon (Ex. 
 
         80, pp. 36 & 37).  The following colloquy transpired between 
 
         defendants counsel and Dr. Worrell:
 
         
 
              Q.  What are the other identifiable or suspected causes of 
 
              onset or initiation of herpes zoster?
 
         
 
              A.   There may be no identifiable cause in the majority of 
 
              cases.
 
         
 
              Q.  What do you mean?
 
         
 
              A.  The virus may activate spontaneously.  There can be some 
 
              underlying diseases on the person's part that may interfere 
 
              with his defense against virus infections such as he may 
 
              have a cancer or has diabetes or is taking certain drugs or 
 
              other types of injuries to the body such as burns or 
 
              anything that stresses the body, or there may be no 
 
              identifiable cause at all.
 
         
 
              Q.  So I take it this herpes zoster could literally flare up 
 
              without anything specific happening to set it in motion?
 
         
 
              A.  It can, yes.
 
         
 
              Q.  And that's reported in the literature?
 
         
 
              A.  Oh, yes.
 
         
 
              Q,  Is that the more common or more frequent manner in which 
 
              herpes zoster shows up; that is, in the absence of trauma?
 
         
 
              A.  Yes.
 
         
 
              Q.  Let me ask then a difficult question, and this is my 
 
              last one:  How is it or what factors do you look at then in 
 
              linking Mr. Corman's left C5 dermatome herpes pattern with 
 
              the insult to the nerve on the opposite side of this body as 
 
              opposed to saying, "Well, this is just one of those freak 
 
              occurrences where the herpes activity was coincidental or in 
 
              a temporal relationship to when we had him in the 
 
              hospital"?
 
         
 
              A.  I have no way of proving that one way or the other.
 
         
 
              Q.  Okay.
 
         
 
                                                
 
                                                         
 
              A.  It just was a strange coincidence that it would occur in 
 
              the exact same dermatome on the opposite side.
 
         
 
              Q.  Okay.  Thank you very much, Doctor.
 
         
 
         (Ex. 80, pp. 37 & 38)
 
         
 
              In conclusion, Dr. Worrell said that if claimant had trauma 
 
         on the right side of his body it could have been severe enough to 
 
         cause changes on the left side of the body.  The fact that the 
 
         herpes erupted at the same C5 dermatome may have been more than 
 
         coincidental (Ex. 80, p. 43).
 
         
 
              Claimant continued to have flare-ups of herpes zoster on 
 
         March 25, 1985 (Ex. 5); episodes of shingles on April 18, 1985 
 
         (Ex. 2); and several episodes of recurrent herpes zoster and 
 
         radiating pains on July 31, 1985 (Ex. 6).  Dr. Worrell said that 
 
         he was still totally disabled on March 25, 1985 (Ex. 47).  On 
 
         February 13, 1986 Dr. Worrell said that claimant was still 
 
         disabled and would be for the foreseeable future (Ex. 7).
 
         
 
              Claimant was extensively examined again for multiple 
 
         complaints, primarily abdominal, but also including herpes zoster 
 
         at the University of Iowa Hospitals and Clinics on January 15, 
 
         1986 through January 22, 1986 (Exs. 8-16).  Claimant was examined 
 
         in the lipid clinic by Bruce Leishl, M.D., who among other 
 
         things, noted cholesterol of 423 and triglycerides of 3,115 (Ex. 
 
         A).
 
         
 
              A Dr. Schrott (full name unknown) recommended a lowfat diet 
 
         for the hypertriglyceride condition.  He added that claimant's 
 
         skin lesions have an unusual distribution for herpes zoster 
 
         because they were bilateral and did not follow a dermatomal 
 
         pattern.  He proposed that dermatitis herpetiformis is another 
 
         vesicular dermatitis which is related to steatorrhea (fatty 
 
         feces).  He proposed a low gluten diet.  He also asked claimant 
 
         to return during an acute flare-up of lesions for an evaluation 
 
         by the dermatology department (Ex. A).
 
         
 
              Claimant testified that he tried these diets for six months 
 
         but they did not clear up his condition and they had no effect on 
 
         his sores.
 
         
 
              Gay R. Anderson, M.D., testified by telephonic deposition on 
 
         May 7, 1987 (Ex. C).  His very impressive curriculem vitae appears 
 
         with the deposition.  He is a board certified orthopedic surgeon 
 
         and also a board certified psychiatrist.  Dr. Anderson granted 
 
         that he was not a board certified neurologist and is not more 
 
         qualified in neurology than a board certified neurologist but he 
 
         does practice a certain amount of neurology.  He has specialized 
 
         in industrial medicine and is one of the founders of the 
 
         Industrial Injury Clinic (IIC) and Neenah, Wisconsin in 1975 which 
 
         operates in conjunction with Theda Clark Regional Medical Center. 
 
         In 1983, he was recognized as physician of the year by President 
 
         Ronald Reagan for his work for rehabilitation of the handicapped.  
 
                                                
 
                                                         
 
         Claimant was evaluated from July 8, 1984 through July 11, 1984 at 
 
         the clinic. The clinic follows a multiple discipline approach.  In 
 
         addition to Dr. Anderson, claimant was also examined by and 
 
         evaluated by a board certified psychiatrist and neurologist, a 
 
         psychologist and a certified rehabilitation counselor.  Numerous 
 
         physical and personality tests were administered (Ex. C, pp. 
 
         8-19).
 
         
 
              Dr. Anderson only found slight winging of the right scapula, 
 
         and mild serratus anterior muscle palsy (Ex. C, pp. 20, 23 and 
 
         28).  This was established by EMG.  All of the objective tests of 
 
         the claimant were normal (Ex. C, pp. 25-28).  Dr. Anderson 
 
         controverted Dr. Worrell's testimony that claimant sustained 
 
         either a brachial plexus or a C5 stretch injury (Ex. C, pp. 
 
         28-31).  He added that damage to the C5 nerve root on the right 
 
         would not produce signs or symptoms on the left nerve root (Ex. 
 
         C, pp. 31 & 32).  Dr. Anderson described herpes zoster as 
 
         follows:
 
         
 
              A.  Herpes zoster is a vesicular eruption caused by the 
 
              chickenpox [sic] virus that will usually follow a specific 
 
              nerve root, sometimes one or two nerve roots or a specific 
 
              division of a cranial nerve.
 
         
 
              Q.  When you say vesicular eruption, what does that mean?
 
         
 
              A.  That means on the skin one will see little vesicles that 
 
              look a lot like little cold sores that form a little 
 
              eruption, kind of a pimply eruption, vesicles as we call 
 
              them that are filled with fluid and these will follow the 
 
              distribution of a sensory nerve that it is involving.  The 
 
              specific chickenpox [sic] virus that causes herpes zoster is 
 
              sometimes known as shingles.
 
 
 
                             
 
                                                         
 
         
 
              Q.  Is herpes zoster, if it is found along a nerve root 
 
              distribution or dermatome distribution known to be a painful 
 
              condition?
 
         
 
              A.  Yes, occurring in the acute phase since it is 
 
              inflammatory and it is a viral infection and since it 
 
              affects primarily the sensory nerves, it will cause a 
 
              neuritis or inflammation of a nerve and generally pain along 
 
              the distribution of that particular sensory nerve.
 
         
 
              Q.  When you say it is viral, are you saying that herpes is 
 
              believed to be caused by a virus?
 
         
 
              A.  Yes.  As I mentioned, it is specifically caused by the 
 
              chickenpox [sic] virus.  It is sometimes called adult 
 
              chickenpox [sic].
 
         
 
              Q.  From the causation standpoint, are there well known or 
 
              accepted causes or explanations for flare-ups of herpes 
 
              zoster in an adult?
 
         
 
              A.  Usually the initial occurrence of herpes zoster or 
 
              shingles is simply caused by an infection from the 
 
              chickenpox [sic] virus.  The exact mechanism of this 
 
              infection and whether it can be a primary infection or 
 
              whether it is a remanifestation of a virus is not clearly 
 
              defined.  There are many theories, but the virus has been 
 
              isolated and once the initial flare-up or neuritis has 
 
              developed, in some people there will be a periodic 
 
              recurrence.
 
         
 
                   Now, the cause of those recurrences is unknown.  They 
 
              just empirically have been observed to occur.  The theory is 
 
              very similar to the cold sore virus in that the virus does 
 
              exist in the latent form in the nerve tissue and 
 
              periodically reactivates.
 
         
 
              Q.  Dr. James Worrell, the neurologist who has previously 
 
              testified in this case, offered the opinion that at least 
 
              half of the known flare-ups of herpes zoster are idiopathic 
 
              or from an unknown cause.  Would you agree with that 
 
              opinion?
 
         
 
              A.  Probably more than half.  The only other cause that 
 
              comes to mind is sometimes shingle flare-ups, the shingles 
 
              has been associated with steroid therapy.  Also in some 
 
              cases it seems to flare up at the time of immune depression, 
 
              sometimes with cancer, but other than that, I would say that 
 
              in the otherwise healthy individual who isn't on significant 
 
              steroid therapy, probably all of the occurrences, flare-ups 
 
              would have to be labeled idiopathic.
 
         
 
         (Ex. C, pp. 32-35).
 
         
 
                                                
 
                                                         
 
              Dr. Anderson reiterated that an injury to the right shoulder 
 
         would not cause herpes in the left C5 dermatome.  He gratuitously 
 
         added that he knew of no documentation or data that would 
 
         indicate that trauma flares up or causes the onset of herpes 
 
         zoster in any event (Ex. C, pp. 35 & 36).  Dr. Anderson said that 
 
         herpes zoster usually follows one or two dermatomes and it is 
 
         very unusual for it to be generalized as in the case of claimant 
 
         (Ex. C, pp. 37 & 38).  Returning to the subject of whether 
 
         steroids can cause herpes zoster the following dialogue 
 
         transpired between Dr. Anderson and claimant's counsel:
 
         
 
              Q.  Doctor, previously you mentioned that the herpes zoster 
 
              or shingles as you also related to it is something that 
 
              tends to flare-up when on a steroid therapy, is that 
 
              correct?
 
         
 
              A.  I have seen it and heard it reported that steroids could 
 
              bring it on and it is logical that that might happen because 
 
              steroids tend to suppress the immune system.  I haven't seen 
 
              this on numerous occasions, but I do know certainly with 
 
              other viruses that steroids can enhance the viral infection 
 
              and that sort of thing.
 
         
 
              Q.  Doctor, in this particular case I believe Dr. Worrell 
 
              has stated that Mr. Corman was given cortisone treatment for 
 
              his injury and it is our understanding that that cortisone 
 
              treatment then activated the herpes zoster by lowering the 
 
              immune system.
 
         
 
              A.  As I just said, that is possible depending on how much 
 
              and how long he was given the steroids.  If this was just 
 
              simply one injection, I doubt that that would happen; but if 
 
              he was on steroids for any length of time or multiple 
 
              injections, especially of depo-steroids, that's possible.
 
         
 
              Q.  You would not have any difficulty with that then?
 
         
 
              A.  No, depending on the details of the steroid treatment.
 
         
 
              Q.  As I understand it, without something like I might have 
 
              just described, just merely having an injury like Mr. Corman 
 
              relates to his arm and shoulder, that in itself normally 
 
              would itself not cause a flare-up of the herpes zoster and 
 
              would not be connected to just that injury as such and that 
 
              is your opinion, isn't that true?
 
         
 
              A.  Yes, that's right.
 
         
 
         (Ex. C, pp. 57-59)
 
         
 
              Dr. Anderson was asked whether claimant could have 
 
         dermatitis herpetiformis as suggested by Dr. Schrott at the 
 
         University of Iowa.  Dr. Anderson replied as follows:
 
         
 
              Q.  Could you tell the judge what, I will not pronounce it 
 
                                                
 
                                                         
 
                   again, what this dermatitis herpetiformis involves in terms 
 
              of vesicular formation?
 
         
 
              A.  Well, as the name suggests, it is herpetic like in 
 
              nature, that is what herpetiformis means.  This is referred 
 
              to as a skin inflammation that is herpetiform in nature, in 
 
              other words, there will be a vesicular eruption and you can 
 
              see this type of herpetic reaction with a number of viruses, 
 
              with the various herpes viruses a well as the chickenpox 
 
              [sic] virus.
 
         
 
              Q.  Dr. Schrott writes in his clinical notes that Mr. 
 
              Corman's skin lesions, and I will quote, "Have distribution 
 
              unusual for herpes zoster bilateral and not in dermatome 
 
              pattern."  Is that consistent with a flare-up or an outbreak 
 
              of dermatitis herpetiformis?
 
         
 
              A.  That would be more consistent as I think I mentioned 
 
              earlier when it was brought up by either you or Mr. Hoffman 
 
              that Mr. Corman seems to have multiple areas of involvement. 
 
              I have remarked that that was just atypical and in my own 
 
              mind I was beginning to wonder what the details were.
 
         
 
                   Now that you have explained it, it sounds rather 
 
              unlikely that this is, in fact, herpes zoster and if he has 
 
              got multiple areas that don't follow anatomic dermatomes, 
 
              then it is more likely to be one of the other viruses that 
 
              we are familiar with, the herpetiform dermatitis.
 
         
 
         (Ex. C, pp. 71 & 72).
 
         
 
              Defendants' counsel suggested that claimant might be 
 
         suffering from a condition called herpetic neuropathy and Dr. 
 
         Anderson replied as follows:
 
         
 
              Q.  I have only one other question then.  You mentioned to 
 
              Mr. Hoffman that you had seen patients in the past who have 
 
              had a herpetic type reaction where they initially were 
 
              thought to have a neurological damage or some type of 
 
              neurological syndrome.  Are you familiar with the term 
 
              herpetical neurology?
 
         
 
              A.  You mean herpetic neuropathy?
 
         
 
              Q.  Yes, I am sorry.
 
         
 
              A.  Yes.
 
         
 
              Q.  In Mr. Corman's case if he complained bitterly of arm 
 
              pain, pain radiating into the arm, but by myelography or by 
 
              CT scan and by x-ray there was no sign of nerve root 
 
              impingement, no sign of there being a disc, and subsequently 
 
              he developed a true herpetic type condition, would there at 
 
              least be a distinct possibility in terms of medical 
 
              probability that the initial arm complaints or the 
 
                                                
 
                                                         
 
                   perception of pain in the arm of a radiating nature would be 
 
              an early manifestations of a viral condition?
 
         
 
              A.  Absolutely.  As I mentioned and cited examples of 
 
              earlier, I see that not infrequently and I cited this as one 
 
              of the reasons why I see a number of herpes zoster cases 
 
              because before the eruption they are sent here with the 
 
              thought that they have some type of radiculopathy, 
 
              mechanical type disc and in this particular case, the pain 
 
              may be a red herring, may be herpetic in nature especially 
 
              if this individual is continuing to have recurrent eruptions 
 
              with a peculiar nature or a particular nature as you are 
 
              deriving here in the 1986 evaluation.
 
         
 
              Q.  Would the fact that Mr. Corman has had regular ongoing 
 
              eruptions of a herpetic nature tend to suggest that there 
 
              may be a cause far beyond just the injections of some 
 
              steroid medication for a month or so?
 
         
 
              A.  Yes, if he is still having trouble now and he was given 
 
              one month of intermittent steroid treatment three or four 
 
              years ago, I think anybody would be hard-pressed to relate 
 
              such treatment to result in a herpetic reaction.  There is 
 
              something else going on if he is still having herpetic 
 
              problems now. (Ex. C, pp. 73 &74)
 
         
 
         
 
              Claimant testified that he did not know if he had chicken 
 
         pox or not as a child; however he did have the usual childhood 
 
         diseases.
 
         
 
              Claimant, claimant's wife and Dr. Worrell all state that 
 
         claimant is unable to work.  Claimant testified that he has no 
 
 
 
                             
 
                                                         
 
         energy.  His arms get weak doing dishes or picking up the house. 
 
         He has no grip with his right arm and drops things.  The herpes 
 
         spots feel like hot grease splattering him.  It is activity or 
 
         motion which causes his skin to break out.  Claimant testified 
 
         that Dr. Worrell told him the condition should heal itself in 
 
         time.
 
         
 
              Mrs. Corman testified that claimant can not abduct, adduct 
 
         or flex his arms.  Repetitive motions or vibration cause the 
 
         lesions to erupt.  These motions also make his arms tremble and 
 
         shake.  He drops things.  He cannot raise his arm to comb his own 
 
         hair or pull a shirt over his head.  Whatever muscle he uses gets 
 
         the sores and becomes sensitive and sometimes will break out with 
 
         pimples.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 14, 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. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              Fairly early in Iowa workers' compensation law the Supreme 
 
         Court decides that where an accident occurs to an employee in the 
 
         usual course of his employment, the employer is liable for all 
 
         consequences that naturally and proximately flow from the 
 
         accident.  Oldham v. Scofield & Welch, 222 Iowa 764, 767-68, 266 
 
         N.W. 480, 269 N.W. 925 (1936); Lindeken v. Lowden, 229 Iowa 645, 
 
         295 N.W. 112 (1940).
 
         
 
                                                
 
                                                         
 
              It has long been established that whenever the treatment 
 
         employed for an injury aggravates or increases the disability 
 
         initially caused by the injury the employer and it's insurance 
 
         carrier remain responsible for all of the resulting disability. 
 
         Injury resulting from treatment is considered as having been 
 
         proximately caused by the original injury.  Heumphreus v. State, 
 
         334 N.W.2d 757 (Iowa 1983); Bradshaw, 251 Iowa 375, 101 N.W.2d 
 
         167 and Cross v. Hermanson Bros., 235 Iowa 739, 16 N.W.2d 616 
 
         (1944). Claimant and his wife testified that he received 
 
         cortisone either by injection or by mouth from Dr. Breckenridge, 
 
         Dr. Berg, Dr. Howe and Dr. Worrell.  It was confirmed by Dr. 
 
         Breckenridge that he gave claimant two cortisone injections.  It 
 
         could not be confirmed that Dr. Berg gave any cortisone or other 
 
         steroids.  It is not shown among the medications that Dr. Berg 
 
         mentioned.  It cannot be confirmed whether Dr. Howe gave any 
 
         cortisone or steroids from his report.  We do not have the 
 
         hospital records showing claimant's medication regimen for the 
 
         period July 8, 1983 through July 21, 1983.  However, Dr. Worrell 
 
         admits to prescribing a steroid and says that he was receiving 
 
         0.75mg of Decadron three times a day and claimant was sent home 
 
         with a tapering course of Decadron (Ex. 49).  The source of Dr. 
 
         Smith's information is not known but he states claimant was 
 
         treated with shots and Prednisone over two and one-half weeks 
 
         (unknown dose) (Ex. 17).  Defendants' counsel impugned the 
 
         testimony of claimant's wife in that she really could not be 
 
         absolutely sure of what medications claimant received because she 
 
         did not administer them or have the records before her.  Other 
 
         than that, claimant's testimony and his wife's testimony that he 
 
         received steroids is uncontroverted, uncontradicted and not 
 
         refuted.
 
         
 
              Particularly pertinent is the fact that claimant had 
 
         steroids during the period of hospitalization from July 8, 1983 
 
         to July 21, 1983 and he was sent home with a tapering dose which 
 
         he was presumably taking at the time the steroid reaction 
 
         occurred (Exs. 17 & 49).  The emergency room doctor on July 30, 
 
         1983 clearly diagnosed a steroid reaction and herpes zoster and 
 
         claimant was immediately hospitalized (Ex. 44).  The sequence in 
 
         which these events occurred strongly suggests a cause and effect 
 
         relationship.
 
         
 
              Claimant's treating physician, Dr. Worrell, who administered 
 
         the medications flatly stated to the insurance company on August 
 
         15, 1983 that claimant's condition was work related and further 
 
         stated with regard to the herpes zoster "This was probably 
 
         brought on by the Decadron that I had given him to try to treat 
 
         his previous condition."  (Ex. 1, p. 29: Ex. 52).  Dr. Smith 
 
         thought there was enough of a causal connection that he said that 
 
         since the outbreak occurred on corticosteroids that no more of 
 
         them should be given to him (Ex. 17).
 
         
 
              Dr. Anderson, defendants' evaluating physician, corroborated 
 
         Dr. Worrell and Dr. Smith on the point of whether steroids did or 
 
         could cause a viral condition of a herpetic nature.  Dr. Anderson 
 
         agreed that generally the etiology of approximately one-half of 
 
                                                
 
                                                         
 
         the cases of herpes zoster is unknown and it is an ideopathic 
 
         condition.  But, Dr. Anderson gratuitously added that the only 
 
         cause that comes to mind is steroid therapy, which is the exact 
 
         point that claimant is contending is the cause of the herpes 
 
         zoster in this case.  Dr. Anderson further explained that this is 
 
         because steroids depress the immune system (Ex. C, pp. 34, 57 & 
 
         58).
 
         
 
              Defendants have raised the possibility that claimant may 
 
         have dermatitis herpetiformis or herpetic neuropathy rather than 
 
         herpes zoster.  The precise herpetic medical diagnosis appears to 
 
         be immaterial.  Claimant, claimant's wife and many doctors have 
 
         described his herpetic condition in vivid detail.  Claimant, his 
 
         wife and Dr. Worrell contend that claimant is currently totally 
 
         disabled.  They supplied numerous facts and descriptions of 
 
         claimant's objective physical medical condition to establish that 
 
         he is currently unable to work.  Dr. Worrell, however, stated 
 
         that the condition is temporary because it is self-limiting.  Dr. 
 
         Smith also called it self-limited.  Dr. Worrell expects the 
 
         condition to clear according to the medical evidence in the 
 
         record as soon as it has run it's course.  He believed it was 
 
         simply a matter of time.  He was not yet willing to characterize 
 
         it as a permanent condition.  Therefore, it is found that the 
 
         injury of January 14, 1983 was the cause of claimant's herpetic 
 
         condition which makes claimant unable to work at the present time 
 
         because of the steroid reaction claimant suffered as a result of 
 
         the medications administered to him in July of 1983.  Claimant is 
 
         entitled to a running award of temporary disability benefits.  
 
         Claimant is also entitled to recover his medical expenses for the 
 
         treatment of the herpetic condition.
 
         
 
              Claimant's right shoulder injury was described variously as 
 
         serratus anterior muscle injury or palsy, winged scapula injury, 
 
         C5 dermatome injury, brachial plexus injury, C5 nerve stretch and 
 
         brachial plexus nerve stretch.  Dr. Worrell's contention that 
 
         trauma alone could cause the herpetic condition was effectively 
 
         controverted by the testimony of Dr. Anderson.  Dr. Worrell 
 
         himself admitted that there was nothing in the medical literature 
 
         on this point.
 
         
 
              The fact that no medical explanation has been given for why 
 
         the condition still persists, four or five years after the onset 
 
         from an approximate 30 day course of steroid treatment, in no way 
 
         diminishes claimant's entitlement to recovery.  The fact is that 
 
         it does exist.  There was no proof by a preponderance of the 
 
         evidence that this unexplained fact would affect claimant's 
 
         recovery.
 
         
 
                                FINDINGS OF FACT
 
         
 
              THEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That the steroid treatment administered during the 
 
         hospitalization from July 8, 1983 to July 21, 1983 and shortly 
 
                                                
 
                                                         
 
         thereafter, was the cause of the steroid reaction that occurred 
 
         on July 30, 1983 and caused claimant's viral herpetical 
 
         condition.
 
         
 
              That claimant is not able to work due to the affects of this 
 
         steroid reaction.
 
         
 
              That claimant has incurred certain medical expenses for the 
 
         treatment of this steroid reaction.
 
         
 
                                 CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made.
 
         
 
              That the injury of January 14, 1983 was the cause of 
 
         claimant's present herpetic condition.
 
         
 
              That claimant is entitled to a running award of temporary 
 
         disability benefits indefinitely into the future.
 
         
 
              That claimant is entitled to the payment of his medical 
 
         expenses for treatment of this herpetic condition.
 
         
 
                                       ORDER
 
              
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant a running award of temporary 
 
         total disability benefits in the amount of two hundred sixty-one 
 
         and 97/100 dollars ($261.97) per week beginning on August 7, 1984 
 
         which is the date that previous temporary disability benefits 
 
         were terminated.
 
         
 
                                                         
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay claimant's medical expenses for the 
 
         treatment of his viral herpetic condition which has been 
 
         described most often as herpes zoster.
 
         
 
              That the costs of this action are assessed against 
 
         defendants pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 27th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James Hoffman
 
         Attorney at Law
 
         Middle Road
 
         PO Box 1066
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Larry Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         111 E. Third Street
 
         Davenport, Iowa  52801
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.40; 1801; 1802
 
                                            2501
 
                                            Filed April 27, 1988
 
                                            WALTER R. McMANUS, JR.
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         ROBERT CORMAN,
 
         
 
              Claimant,
 
         
 
         vs.                                           File No. 725770
 
         
 
         VAN BUREN COUNTY ALCOHOL PLANT,            A R B I T R A T I O N
 
         
 
              Employer,                                D E C I S I O N
 
         
 
         and
 
         
 
         HARTFORD INSURANCE COMPANY,
 
         
 
              Insurance Company,
 
              Defendants.
 
         
 
         
 
         1402.40; 1801; 1802
 
         
 
              Claimant sustained the burden of proof by a preponderance of 
 
         the evidence that cortisone administered to him to treat his 
 
         shoulder injury was the cause of a steroid effect that resulted 
 
         in a severe herpetic reaction (sequellae) that still temporarily 
 
         disables claimant over four years after the original injury. 
 
         Claimant awarded a running award of temporary disability 
 
         indefinitely into the future.
 
         
 
         2501
 
         
 
              Claimant awarded medical expenses for the herpes zoster 
 
         (shingles) condition also.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEN WATSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                     File No. 726062
 
         GETTY OIL COMPANY,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Ken Watson 
 
         against Getty Oil Company, his former employer, and the Travelers 
 
         Insurance Company, its insurance carrier.
 
         
 
              The case was heard and fully submitted on October 5, 1987 at 
 
         Des Moines, Iowa.  The record in this proceeding consists of 
 
         testimony from Ken Watson, joint medical exhibits 1 through 11, 
 
         joint non-medical exhibits 1 through 7 and defendants' exhibit 8, 
 
         which consists of claimant's deposition taken December 15, 1986.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks further benefits based upon an injury he 
 
         sustained on February 10, 1983.  It was stipulated that 
 
         claimant's entitlement to compensation for temporary total 
 
         disability or healing period is 19 3/7 weeks running from 
 
         February 11, 1983 to March 27, 1983 and again from June 20, 1983 
 
         to September 18, 1983 and that it has been fully paid at the 
 
         stipulated rate of compensation which is $317.18 per week.  The 
 
         issues to be determined are determination of claimant's 
 
         entitlement, if any, to compensation for permanent partial 
 
         disability and section 85.27 benefits.  The commencement date for 
 
         any permanent partial disability compensation was identified as 
 
         an issue.  The employer asserts that there is no causal 
 
         connection between the injury and the alleged disability.
 
         
 
                            SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 

 
         
 
         
 
         
 
         WATSON V. GETTY OIL COMPANY
 
         Page   2
 
         
 
         
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Ken Watson testified that he is a 46-year-old high school 
 
         graduate.  He stated that, since high school, he has been 
 
         employed primarily as a truck driver.  He was employed by Getty 
 
         Oil Company, and its predecessor company, since 1970.  Claimant's 
 
         employment with Getty terminated concurrent with a purchase of 
 
         the company by Texaco.  Claimant was offered severance pay in 
 
         excess of $30,000 which he chose to accept in lieu of working for 
 
         lower wages and fewer benefits under Texaco.
 
         
 
              Watson testified that he has generally enjoyed good health 
 
         throughout his lifetime.  He related that, in 1981, he injured 
 
         his lower back while changing hoses on a tanker.  He stated that 
 
         he was paid workers' compensation and was treated by Marshall 
 
         Flapan, M.D.  Medical exhibit 1 shows that claimant was 
 
         hospitalized at that time for a lumbosacral strain.  In the 
 
         course of treatment, claimant complained of headaches and neck 
 
         discomfort.  X-rays revealed a compression fracture of his sixth 
 
         cervical vertebra.  The final progress note dealing with that 
 
         incident is dated January 6, 1982.  It indicates that Watson was 
 
         coming along well, that he was not having any pain or discomfort 
 
         and that he had a full range of motion of his cervical spine 
 
         without any neurological deficit.  The note indicates that no 
 
         permanent impairment had been sustained as a result of that 
 
         injury.
 
         
 
              Claimant testified that, on February 10, 1983, he slipped 
 
         and fell when opening a large gate at the employer's Vandalia 
 
         Road terminal near Des Moines, Iowa.  In his deposition, exhibit 
 
         8, at page 19, claimant indicated that, when he fell, he fell 
 
         forward and hung onto the gate, apparently with his hands.  He 
 
         also indicated O ... my feet went out from under me behind me." 
 
         Claimant indicated that it hurt immediately.  Medical exhibit 2 
 
         shows that claimant was seen by John T. Bakody, M.D., on February 
 
         17, 1983 at the Mercy Hospital Emergency Room.  Claimant voiced 
 
         complaints of neck discomfort with aching into his shoulders and 
 
         arms, headaches and numbness of his hands.  Claimant was off work 
 
         from the date of the injury until March 27, 1983.  He then 
 
         returned to work until June 20, 1983.  Watson was again seen by 
 
         Dr. Bakody at Mercy Hospital on June 21, 1983 with complaints 
 
         similar to those he had made previously.  Claimant was 
 
         hospitalized for a myelogram and CT scan which showed findings 
 
         consistent with a pinched nerve in the neck from a disc at the 
 
         C6-7 and C5-6 levels.  Claimant was treated conservatively with 
 
         physical therapy and medications (medical exhibit 2, page 6).  A 
 
         progress note from Dr. Bakody dated September 13, 1983 indicates 
 
         that claimant should try working on September 19, 1983 (medical 
 
         exhibit 2, page 8).  Claimant stated that he returned to work 
 
         with Getty and worked until 1985 when he suffered another 
 
         injury.
 
         
 
              Claimant testified that, in 1985, he pulled his back muscles 
 
         again in an incident that occurred in Kansas City, Missouri while 
 
         changing hoses on a tanker.  Claimant stated that he was treated 
 
         by Richard L. Owens, M.D., and James R. Rochelle, M.D., in Kansas 
 
         City, but that none of the treatment was for his neck.  Claimant 
 

 
         
 
         
 
         
 
         WATSON V. GETTY OIL COMPANY
 
         Page   3
 
         
 
         
 
         testified that he did not know if he told either of those 
 
         physicians that he had injured his neck in 1983.  Medical exhibit 
 
         6 shows that claimant had an accident on February 8, 1985 when he 
 
         slipped on ice while delivering gas.  The condition was initially 
 
         diagnosed as a lumbar strain, but a later assessment indicated 
 
         that claimant had probable degenerative disc disease.  A work 
 
         hardening program was recommended, but claimant stated that he 
 
         never participated in it.  A report from Dr. Rochelle dated May 
 
         15, 1985 indicates that claimant's complaints had changed little 
 
         recently and that the pain remained in the lumbosacral region 
 
         with no significant radiation into the buttocks or thighs.  Dr. 
 
         Rochelle indicated that the purpose of the work hardening program 
 
         was to evaluate claimant's endurance and to attempt to condition 
 
         him to the point that he would be able to find another job in a 
 
         laboring capacity.
 
         
 
              Exhibit 7 is a report from Dr. Owens in which he concludes 
 
         that claimant had suffered a subacute ligamentous and muscular 
 
         strain of the lumbar area and that claimant also had a history of 
 
         a preexisting injury to the neck area as a result of an injury in 
 
         1983 for which claimant had residual symptoms.  Dr. Owens 
 
         assigned a five percent permanent partial disability rating of 
 
         the whole body as a result of the injury of February 8, 1985.  He 
 
         addressed claimant's neck condition only as a matter of history.
 
         
 
              Claimant testified that he was thoroughly examined by James 
 
         W. Hall, M.D., for both the 1983 and 1985 injuries.  The report 
 
         sent to James R. Brown, which is dated May 5, 1986 and appears in 
 
         medical exhibit 10 starting at page 40, indicates that, in the 
 
         1985 accident, claimant had sustained a chronic lumbosacral 
 
         strain with no evidence of neurological involvement.  He rated 
 
         claimant as having a permanent partial disability of seven and 
 
         one-half percent of the body as a whole due to that incident.  
 
         The second report from Dr. Hall, also dated May 5, 1986, 
 
         commences at page 42 of medical exhibit 10.  Dr. Hall did not 
 
         have the benefit of any of the prior diagnostic radiographic 
 
         studies, but did take x-rays of claimant's neck which showed mild 
 
         spurring of the C6 vertebra.  Dr. Hall made his diagnosis of a 
 
         damaged disc of the cervical spine only from the history that 
 
         claimant provided.  Dr. Hall assigned a 20% permanent partial 
 
         disability rating of the body as a whole based upon the written 
 
         report from Dr. Bakody which is dated March 4, 1986 and the 
 
         history that was provided by the claimant.
 
         
 
              On April 4, 1986, in response to an inquiry made by the 
 
         insurance carrier, Dr. Bakody stated that claimant had a 20% 
 
         permanent partial disability of the body as a whole (medical 
 
         exhibit 9).
 
         
 
              Claimant was also evaluated by Thomas A. Carlstrom, M.D.  
 
         Dr. Carlstrom did review the radiographic studies which had been 
 
         made commencing in 1981 and running through 1983.  Dr. Carlstrom 
 
         felt that the studies did not support the diagnosis of a 
 
         compression fracture of the cervical spine.  He stated that, in 
 
         his opinion, the claimant had a myofascial neck syndrome which 
 
         probably began in February of 1983.  He rated claimant as having 
 
         a 1-2 percent permanent partial impairment under the AMA 
 
         guidelines (medical exhibit 11).
 
         
 

 
         
 
         
 
         
 
         WATSON V. GETTY OIL COMPANY
 
         Page   4
 
         
 
         
 
              Medical exhibit 3, at page 13, contains the report of a 
 
         myelogram which was performed on June 22, 1983.  It reports large 
 
         spurs at the C6-7 level.  On the same page, regular x-rays of the 
 
         cervical spine again showed hypertrophic spurring at C6-7 and 
 
         C5-6.  A CT scan of the cervical spine, the report of which is 
 
         found at medical exhibit 3, page 14, indicates that there were 
 
         spondylotic changes, particularly at the C-5,6 and C-6,7 and a 
 
         possible disc protrusion at C-7,T-1.
 
         
 
              Claimant testified that, following the period of treatment 
 
         and recuperation in 1983, he returned to his same job as a 
 
         transport driver for Getty Oil Company.  He stated that, due to 
 
         his problems, he was often assigned to haul propane, which he 
 
         considered to be lighter work than delivering gasoline.  Claimant 
 
         testified that he took severance pay, rather than continuing 
 
         employment with Texaco, for a number of reasons, some economic 
 
         and some due to his desire to seek lighter work.
 
         
 
              After claimant left Getty Oil Company, he attended real 
 
         estate school and became licensed.  He sold real estate for 
 
         approximately ten months during which time he earned 
 
         approximately $5,000.
 
         
 
              Claimant has returned to truck driving and is currently 
 
         employed as a temporary, full-time driver for Farmland Industries 
 
         where his take-home pay is approximately $350 per week.  Claimant 
 
         indicated that his gross earnings have run as high as  $450 per 
 
         week.  Claimant had worked for Farmland in the spring of 1986, 
 
         but then obtained another truck driving job with Fleming-Babcock, 
 
         Inc. where his gross earnings were approximately $340 per week.  
 
         Claimant testified that he hopes his employment with Farmland 
 
         will continue and develop into a full-time, year-round job.  
 
         Claimant stated that he now earns $10,000 to $14,000 per year 
 
         less than what he had most recently earned while working for 
 
         Getty Oil Company.
 
         
 
              Claimant testified that his neck problems have continued 
 
         since 1983 and that he continues to experience headaches and 
 
         numbness in his arms and hands on a daily basis.  He stated that 
 
         his low back does not cause him much difficulty at the present 
 
         time.
 
         
 
              Claimant testified that he commenced treatment with the 
 
         Makings Chiropractic Center in Liberty, Missouri upon the 
 
         recommendation of Carol Meier, D.C., the chiropractor who had 
 
         treated him in Des Moines, Iowa.  Claimant stated that the 
 
         insurance carrier and employer had paid Dr. Meier, but that he 
 
         had not submitted any of the bills from Dr. Makings to them for 
 
         payment.  Claimant testified that he continues to see Dr. Makings 
 
         approximately once per month.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The first issue to be addressed is determination of the 
 
         extent of permanent partial disability, if any, that was 
 
         proximately caused by the injury that claimant sustained on 
 
         February 10, 1983.  For a cause to be proximate, it must be a 
 
         substantial factor in bringing about the result, but it need not 
 
         be the only cause.  Blacksmith v. All-American, Inc., 290 N.W.2d 
 

 
         
 
         
 
         
 
         WATSON V. GETTY OIL COMPANY
 
         Page   5
 
         
 
         
 
         348, 354 (Iowa 1980).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 760-761 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v. 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 (1962).
 
         
 
              The spurring which has been identified in claimant's 
 
         cervical spine is evidence of a degenerative process.  Since it 
 
         was identified shortly after the 1983 injury, it probably had 
 
         preexisted that injury for a considerable amount of time.  Such 
 
         conditions, by their very nature, are prone to exacerbations from 
 
         physical activity or strains which normally resolve over a period 
 
         of a few weeks.  According to claimant's testimony, as 
 
         corroborated by the physicians, the neck complaints from the 1983 
 
         injury did not completely resolve.  The impairment ratings are 
 
         quite divergent, ranging from 20% by Dr. Bakody to 2% by Dr. 
 
         Carlstrom.  They do agree, however, that there is some degree of 
 
         permanent impairment that resulted from the 1983 injury.
 
         
 
              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 251, 
 
         257 (1963).
 
         
 
              Industrial disability, in a workers' compensation case is 
 
         quite similar to impairment of earning capacity, an element of 
 
         damages in a tort case.  Impairment of physical capacity creates 
 
         an inference of lessened earning capacity.  The basic element to 
 
         be determined, however, is the reduction in value of the general 
 
         earning capacity of the person rather than a loss of wages in any 
 
         specific occupation.  Holmquist v. Volkswagon of America, Inc., 
 
         261 N.W.2d 516 (Iowa App. 1977) 100 A.L.R.3d 143.  Post-injury 
 
         earnings create an inference of earning capacity commensurate 
 
         with them, but they are not synonymous with earning capacity and 
 
         may be rebutted by evidence which shows them to be an unreliable 
 
         basis for estimating earning capacity.  2 Larson Workmen's 
 
         Compensation Law, sections 57.21 and 57.31; Michael v. Harrison 
 
         County, 34th Biennial Report, 218 (1979).
 
         
 
              The impairment ratings are greatly divergent.  None of the 
 
         physicians have provided any physical restrictions or activity 
 

 
         
 
         
 
         
 
         WATSON V. GETTY OIL COMPANY
 
         Page   6
 
         
 
         
 
         limitations for claimant to follow.  Following the injury, 
 
         claimant returned to the same job with Getty without any loss of 
 
         earnings.  That status existed until the 1985 injury and the 
 
         termination of Getty Oil Company employment.  Claimant has now 
 
         returned to the occupation of truck driving, the same general 
 
         occupation in which he engaged at the time of injury.  He earns 
 
         less now than he did prior to the injury, but the same result 
 
         would likely have occurred regardless of whether or not he was 
 
         injured.  The change in the Getty Oil Company employment status 
 
         was not related to claimant's injury or disability. it is 
 
         determined that the mere fact the employment with Getty Oil 
 
         Company ended is the primary cause in the reduction of income 
 
         which claimant has experienced.  In view of the activities in 
 
         which claimant has actually engaged since 1983, the impairment 
 
         rating imposed by Dr. Carlstrom is determined to be more accurate 
 
         than the quite substantial rating assigned by Dr. Bakody.  
 
         Claimant is, nevertheless, more symptomatic than he was 
 
         previously.  Activities such as lifting that are commonly 
 
         involved in the process of loading and unloading trucks, a 
 
         requirement of many truck driving jobs, are troublesome for him.  
 
         When all the material factors of industrial disability are 
 
         considered, it is determined that claimant has a five percent 
 
         permanent partial disability as a result of the injuries he 
 
         sustained on February 10, 1983.
 
         
 
              According to Iowa Code section 85.34(2), compensation for 
 
         permanent partial disability comes due at the end.of the healing 
 
         period.  Code section 85.30 provides interest on compensation 
 

 
         
 
         
 
         
 
         WATSON V. GETTY OIL COMPANY
 
         Page   7
 
         
 
         
 
         that is not paid when it comes due.  A literal construction of 
 
         those statutes was adopted by the Iowa Supreme Court in the case 
 
         Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  Interest is simply 
 
         an adjustment which recognizes the investment value of money.  It 
 
         is not a penalty that is assessed for wrongdoing.  There may be 
 
         some unique circumstances in which an exception to that general 
 
         rule may be implied.  It would not be unreasonable if, where the 
 
         existence of permanent partial disability was not discoverable 
 
         through the exercise of reasonable diligence, commencement of 
 
         payment and interest on unpaid amounts could be delayed.  The 
 
         minimum showing necessary, however, to establish reasonable 
 
         diligence would require that the treating physicians have been 
 
         asked whether or not any permanency had resulted.  In the absence 
 
         of such an inquiry, it is impossible to conclude that reasonable 
 
         diligence had been exercised as would justify a delay in the 
 
         commencement of compensation.  The permanent partial disability 
 
         compensation awarded in this case therefore becomes payable 
 
         commencing on March 28, 1983.  It is interrupted by the 
 
         subsequent healing period running from June 20, 1983 through 
 
         September 18, 1963 and then resumes on September 19, 1983.  
 
         Defendants are therefore responsible for payment of interest at 
 
         the rate of ten percent per annum computed on each payment from 
 
         the date it came due until the date it is actually paid.
 
         
 
              Section 85.27 of The Code gives the employer the right to 
 
         choose the medical care which an employee is receiving.  Claimant 
 
         had been treating with Dr. Meier, with the employer's knowledge 
 
         and consent, and the employer paid for Dr. Meier's expenses.  The 
 
         employer and its insurance carrier were not given notice of the 
 
         transfer of care to Dr. Makings.  It is clear from  the itemized 
 
         statement found at medical exhibit 5 that Dr.  Makings provided 
 
         an ongoing course of treatment to claimant.  By claimant's 
 
         testimony, it continues to the present time.  The records show 
 
         gaps in treatment of as much as six months.  It is determined 
 
         that the treatments from Dr. Makings were not substantially 
 
         related to the February 10, 1983 injury.  They appear more likely 
 
         to be a result of treatment for the recurrent exacerbations which 
 
         commonly occur with individuals who have a degenerative 
 
         condition.  According to the evidence in this record, it appears 
 
         that the exacerbations which occurred through July 13, 1985 were 
 
         related to claimant's employment with the Getty Oil Company.  
 
         Subsequent care and treatment does not appear related to that 
 
         employment.  The employer's liability under section 85.27 is 
 
         therefore $331.00. From the evidence in the case, it appears that 
 
         the treatments were reasonable treatments for claimant's 
 
         condition.  Since the employer had not directed claimant to 
 
         obtain his care from any specific source and since the referral 
 
         was made from Dr. Meier to Dr. Makings, the defense of lack of 
 
         authorization does not absolve defendants from liability.  
 
         Limoges v. Meier Auto Salvage, I Iowa Industrial Commissioner 
 
         Report, 207 (1981).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Ken Watson injured his neck on February 10, 1983 while 
 
         opening a gate in the course of his employment at the employer's 
 
         place of business.
 
         
 
              2.  The injury was a myofascial neck strain which has become 
 

 
         
 
         
 
         
 
         WATSON V. GETTY OIL COMPANY
 
         Page   8
 
         
 
         
 
         chronic.
 
         
 
              3.  The injury produced a two percent permanent partial 
 
         impairment of the body as a whole.
 
         
 
              4.  Following recuperation, Watson returned to the same 
 
         employment he held at the time of injury and performed it for 
 
         approximately one and one-half years until he was temporarily 
 
         disabled by a subsequent injury and then voluntarily terminated 
 
         his employment with this employer.
 
         
 
              5.  The termination of claimant's employment occurred 
 
         primarily due to a change in ownership of the company.  Watson 
 
         chose to take a severance payment in lieu of remaining employed 
 
         at reduced earnings.  Claimant Is physical ailments were a minor 
 
         factor in his decision to terminate the employment.
 
         
 
              6.  Watson has now returned to truck driving at a level of 
 
         earnings which is considerably less than what he earned with 
 
         Getty Oil Company.  Watson would have experienced a decrease in 
 
         his actual earnings in any event, regardless of whether or not he 
 
         voluntarily terminated his employment with the employer.
 
         
 
              7.  Watson is of at least average intelligence, emotionally 
 
         stable and motivated to be gainfully employed.
 
         
 
              8.  Watson experiences discomfort in his neck and has 
 
         headaches.  The discomfort is aggravated by lifting and other 
 
         physical exertion.
 
         
 
              9.  Claimant has a five percent loss of earning capacity as 
 
         a result of the injury of February 10, 1983.
 
         
 
             10.  Watson receives some relief through chiropractic 
 
         treatments.
 
         
 
              11.  The chiropractic treatments claimant received running 
 
         through July 13, 1985 were treatments for the injury which is the 
 
         subject of this claim and aggravations thereof which occurred in 
 
         the employment of Getty Oil Company.  The subsequent treatments 
 
         were related primarily to aggravations which occurred after 
 
         claimant left employment with Getty Oil Company.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injury claimant sustained to his neck on February 
 
         10, 1983 arose out of and in the course of his employment with 
 
         Getty Oil Company.
 
         
 
              3.  Ken Watson has a five percent permanent partial 
 
         disability under the provisions of Iowa Code section 85.34(2)(u) 
 
         which entitles him to receive 25 weeks of compensation for 
 
         permanent partial disability.
 
         
 
             4.  Payment of compensation for permanent partial disability 
 
         is due commencing at the end of the healing period where there is 
 

 
         
 
         
 
         
 
         WATSON V. GETTY OIL COMPANY
 
         Page   9
 
         
 
         
 
         no showing that the fact of permanent disability could not have 
 
         been determined through the exercise of reasonable diligence at 
 
         the end of the healing period.  The burden of proving that 
 
         permanent disability was not discoverable through the exercise of 
 
         reasonable diligence rests upon defendants, who are the 
 
         proponents of such theory.
 
         
 
              5.  The expenses Watson incurred with Makings Chiropractic 
 
         Center up to and through July 13, 1985 were proximately caused by 
 
         the February 10, 1983 injury and aggravations thereof which 
 
         occurred in the course of his employment with Getty Oil Company. 
 
          Defendants are responsible for payment of those expenses in the 
 
         amount of $331.00 under Iowa Code section 85.27.  Defendants are 
 
         not responsible for treatment received subsequent to July 13, 
 
         1985.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         twenty-five (25) weeks of compensation for permanent partial 
 
         disability at the stipulated rate of three hundred seventeen and 
 
         18/100 dollars ($317.18) per week payable commencing March 28, 
 
         1983 with an interruption running from June 20, 1983 to September 
 
         18, 1983 when claimant was in a healing period status.  The 
 
         permanent partial disability compensation then is resumed 
 
         commencing September 19, 1983.
 
              IT IS FURTHER ORDERED that the entire amount of compensation 
 
         for permanent partial disability is past due and owing and shall 
 
         be paid to claimant in a lump sum together with interest at the 
 
         rate of ten percent (10%) per annum from the date each payment 
 
         came due until the date of its actual payment pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant three 
 
         hundred thirty-one and 00/100 dollars ($331.00) representing 
 
         expenses incurred with Makings Chiropractic Center under the 
 
         provisions of Iowa Code section 85.27.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 11th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Toby Swanson
 

 
         
 
         
 
         
 
         WATSON V. GETTY OIL COMPANY
 
         Page  10
 
         
 
         
 
         Attorney at Law
 
         1922 Ingersoll Avenue
 
         Suite B-1
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Terry L. Monson
 
         Attorney at Law
 
         100 Court Avenue
 
         Suite 600
 
         Des Moines, Iowa 50309