BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                     
 
         RONALD ROTHE,    
 
                     
 
              Claimant,   
 
                     
 
         vs.         
 
                                                 File No. 735112
 
         TRAINING & MANAGEMENT, INC.,    
 
         d/b/a THE DENISON JOB CORPS,    
 
                                                  A P P E A L
 
              Employer,   
 
                                                D E C I S I O N
 
         and         
 
                     
 
         THE AETNA CASUALTY AND SURETY,  
 
         COMPANY,    
 
                     
 
              Insurance Carrier,    
 
              Defendants.      
 
         _________________________________________________________________
 
         The record, including the transcript of the hearing before the 
 
         deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.  The decision of the deputy filed 
 
         December 6, 1990 is affirmed and is adopted as the final agency 
 
         action in this case.
 
         Defendants shall pay the costs of the appeal, including the 
 
         preparation of the hearing transcript.
 
         Signed and filed this ____ day of November, 1992.
 
         
 
         
 
         
 
         
 
                                     ________________________________
 
                                             BYRON K. ORTON
 
                                        INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Colin McCullough
 
         Attorney at Law
 
         P.O. Box 428
 
         Sac City, Iowa 50583
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                             9998
 
                                             Filed November 5, 1992
 
                                             Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            RONALD ROTHE,    
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                               File No. 735112
 
            TRAINING & MANAGEMENT, INC.,    
 
            d/b/a THE DENISON JOB CORPS,    
 
                                                A P P E A L
 
                 Employer,   
 
                                              D E C I S I O N
 
            and         
 
                        
 
            THE AETNA CASUALTY AND SURETY,  
 
            COMPANY,    
 
                        
 
                 Insurance Carrier,    
 
                 Defendants.      
 
            ____________________________________________________________
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed December 
 
            6, 1990.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         RONALD W. ROTHE,
 
         
 
              Claimant,
 
                                                 File No. 735112
 
         VS.
 
         
 
         TRAINING & MANAGEMENT, INC.,/
 
                                               A R B I T R A T I 0 N
 
         d/b/a THE DENISON JOB CORPS,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         THE AETNA CASUALTY AND SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Ronald W. Rothe, against his employer, Training & management, 
 
         Inc., d/b/a The Denison Job Corps, employer, and its insurance 
 
         carrier, The Aetna Casualty and Surety Company, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained May 25, 1983.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner in 
 
         Sioux City, Iowa, on February 18, 1987.  The record was 
 
         considered fully submitted at close of hearing but for briefs 
 
         filed by the parties.  A first report of injury was filed June 9, 
 
         1983.  Pursuant to the prehearing report, the parties stipulated 
 
         that claimant received healing period or temporary total 
 
         disability benefits from May 26, 198,3 through November 4, 1983 
 
         with any permanent partial disability due to commence on November 
 
         5, 1983.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, of Patricia Rothe, of James O'Connor, of Patricia Ann 
 
         Nolan, of Karen Stricklet, of Stephen Sharpsen, Ph.D., and of 
 
         Nils R. Varney, Ph.D., as well as of exhibits 1 through 37, 
 
         exhibit 38, exhibits 42 through 44, and exhibits 49 through 55.  
 
         All objections to exhibits but for those to exhibits 39, 40, 41, 
 
         and 45 through 48 are overruled.  All objections to testimony are 
 
         overruled.
 
         
 
         
 
         
 
                                    ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant received an injury on May 25, 1983 which arose out 
 
         of and in the course of his employment, and that a causal 
 

 
         relationship exists between his claimed disability and that 
 
         injury.  They further stated that claimant's rate of weekly 
 
         compensation in the event of a permanency award is $132.45. The 
 
         issues remaining for resolution are:
 
         
 
              1)  Whether claimant is entitled to benefits and the nature 
 
         and extent of any benefit entitlement, including the related 
 
         question of whether claimant is an odd-lot worker under the 
 
         Guyton doctrine; and
 
         
 
              2)  Whether claimant is entitled to payment of certain 
 
         medical costs pursuant to section 85.27.
 
         
 
                         REVIEW OF THE EVIDENCE
 
         
 
              Thirty-five year old claimant, who is a high school 
 
         graduate, was injured in a motorcycle accident while traveling at 
 
         a low speed.  He landed on his head and was unconscious for over 
 
         four days.  He subsequently responded and was released from the 
 
         hospital twelve days following his injury.  Claimant lives in 
 
         Denison, Iowa.
 
         
 
              Prior to his injury, claimant worked as a service station 
 
         attendant and mechanic, in candy and insurance sales, as a land 
 
         surveyor, as a packinghouse worker, and as a counselor at a 
 
         residential facility, that is, the Denison Job Corp. Claimant 
 
         characterized that job as a people interaction job where he was 
 
         on his feet most of the day.  Claimant received $4.90 per hour 
 
         for doing that work.  Claimant returned to work with the Denison 
 
         Job Corp following his work release in November 1983.  He worked 
 
         three and one-half days.  Claimant reported that he was expected 
 
         to do a full day's work while working at the Corp half-days only; 
 
         he could not handle that; he accepted a job offer at the Denison 
 
         Movie Center.  The movie center at that time was apparently 
 
         largely a video cassette tape rental store.  It has subsequently 
 
         expanded to include sales of video cassette recorders and 
 
         televisions.  Claimant's wage is $250 per week and he receives a 
 
         10 percent commission on profits over costs.  His commission 
 
         amount in 1985 was $4,400, and in 1986 approximately $2,400.  
 
         Claimant's current responsibilities at the Movie Center are to do 
 
         bookkeeping, supervise employees, sell VCR's and TV's, rent VCR's 
 
         and TV's, take inventory, and schedule employees.
 
         
 
              Claimant reported a number of impairments including pain on 
 
         walking on account of a metal support in his right shoe, 
 
         dizziness, difficulty with word finding, severe loss of his 
 
         capacity to smell, ringing in his ears, hearing loss, a stiff 
 
         neck, sleep disturbances with daytime fatigue and night 
 
         awakening, constant mild to severe headaches for which he must 
 
         leave work, and depression.  He also testified that Nils Varney, 
 
         Ph.D, and Marc Hines, M.D., has diagnosed a partial complex 
 
         seizure disorder for which claimant is currently taking 
 
         medication.  Claimant reported that he understood one of the side 
 
         effects of the medication is high blood pressure and that he 
 
         consequently takes Valium as well.  Claimant testified that his 
 
         wife has noticed that he is under strain from impending 
 
         litigation though he himself has been generally unaware of any 
 
         strain.  Claimant described himself as a complacent, easygoing 
 
         person prior to his injury. claimant reported that he is expected 
 
         to work approximately fifty-five hours per week but had missed 
 
         part of nineteen days in January 1987 on account of health 
 
         problems related to his injury.  He agreed that time off work 
 
         included time during which he sought medical treatment.  In 1985, 
 
         claimant had been advised to seek speech therapy but did not.  
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page   3
 
         
 
         
 
         Claimant opined that he felt he would have had no job had he 
 
         taken time for speech therapy as well as time missed from work on 
 
         account of illness.  Claimant also did not undergo advised stress 
 
         therapy.
 
         
 
              Claimant opined that the job he now has is the only job in 
 
         his county which he could perform on a full-time basis.  He 
 
         opioned that he could not do packinghouse work or return to his 
 
         Job Corp job as he could not handle working an eight hour day or 
 
         walking.  Claimant testified he has been advised not to drive 
 
         motor vehicles on account of a probable seizure disorder.
 
         
 
              Claimant expressed his belief that Charles Taylon, M.D., his 
 
         treating physician, was not helping him and that he and his wife 
 
         had, therefore, sought a referral from Dr. Taylon to Horst Blume, 
 
         M.D. Claimant agreed that he had seen William R. Hamsa, M.D., on 
 
         his own as well as apparently Edward Schima, M.D. Claimant 
 
         reported that Robert L. Bendorf, M.D., was a referral through 
 
         Robert E. Jonesen, Ph.D. He reported that he had been referred to 
 
         Nils Varney, Ph.D., by friends and his counsel.
 
         
 
              Patricia Rothe, claimant's wife since 1972, testified that 
 
         prior to his injury, claimant was a very energetic, hard working 
 
         person, who was pleasant, happy, enjoyed time with family and 
 
         friends, as well as enjoyed working on his car.  She reported 
 
         that following his injuries, claimant has had an air of quiet 
 
         anger with sporadic eruptions of emotions often coming out on the 
 
         couple's nine year old daughter.  Mrs. Rothe stated that claimant 
 
         tries very hard to prevent his mood swings and withdraw when he 
 
         senses a mood eruption is likely so as not to hurt others.  She 
 
         characterized claimant as withdrawn with friends and as not 
 
         including himself in conversations at times, but other times as 
 
         enjoyable.  She reported that claimant's social interaction 
 
         patterns can change in minutes.  She has often spent time with 
 
         claimant at work because claimant initially could not perceive 
 
         what things needed to be done and later because claimant simply 
 
         could not handle his work duties.
 
         
 
              Mrs. Rothe expressed her belief that Dr. Taylon had not 
 
         helped claimant who she knew had pain twenty-four hours a day, 
 
         but that Doctors Hines and Varney have been helping claimant.  
 
         She reported that while there are new problems because of 
 
         claimant's seizure and medication, overall claimant is much 
 
         better than he was six months ago in that he has become more of a 
 
         person since he began medication in January 1987.  She reported 
 
         that he now visits better with friends and family and that 
 
         claimant has been told he will feel better once he gets the 
 
         seizure medication to the proper strength.  On rebuttal, Mrs. 
 
         Pothe reported that claimant's physicians have not told claimant 
 
         all of his problems as claimant has requested that he not be told 
 
         of them.
 
         
 
              James O'Connor, claimant's current employer and president of 
 
         the Movie Center, reported that claimant has an interest in 
 
         electronics and has learned a lot in the three and one-half years 
 
         he has been employed at the center.  He testified, however, that 
 
         claimant's job performance has been declining rapidly and that he 
 
         feels he soon will need to let claimant go.  Mr. O'Connor 
 
         reported that he has received approximately a half dozen 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page   4
 
         
 
         
 
         complaints from coworkers and customers that claimant has been 
 
         rude and behaved inappropriately in the work situation.  He 
 
         reported that he had hired other brain damaged employees who had 
 
         always gotten better and that he had hired claimant for that 
 
         reason in November 1983.  O'Connor stated that in November 1983 
 
         claimant's primary problem was clumsiness and subsequent damage 
 
         to furniture.  He reported that now claimant cannot keep up, 
 
         cannot train employees, and cannot work with customers at a 
 
         retail level.  He testified that claimant now treats customers 
 
         differently than when first hired.  He reported that claimant 
 
         cannot remember the memoranda sent to him and misplaces items.  
 
         O'Connor opined that he could not use claimant in his own 
 
         businesses and that he did not believe that the Denison job 
 
         market held quality, dependable, stable jobs for claimant.  
 
         O'Connor reported that he told Vocational Rehabilitation 
 
         Specialist Karen Stricklett, on February 17, 1987 that he would 
 
         keep claimant "for now" because claimant's job means a great deal 
 
         to claimant and that he hopes claimant will realize on his own 
 
         that claimant is unable to perform the job.  On rebuttal, 
 
         O'Connor testified that there was no job which Ms. Strickler had 
 
         described in her testimony which claimant could not perform.
 
         
 
              Patricia Ann Nolan, a center standards officer at the 
 
         Denison Corp and a former coworker of claimant, testified that 
 
         she worked with claimant for approximately two and one-half 
 
         years.  Both were initially residential advisors at the Denison 
 
         Job Corp and usually worked together on a shift.  She described 
 
         claimant as very tired and very moody at times and reported that 
 
         his interactions with clients and coworkers varied with his mood.  
 
         She reported that on occasion, claimant slept in her office while 
 
         they were working the 12:00 p.m. to 7:00 a.m. shift.  She 
 
         described claimant as a nonself-starter who did what was 
 
         requested of him and at times [as late to work].
 
         
 
              Steven D. Sherretts, Ph.D., testified that he is a clinical 
 
         neuropsychologist and director of clinical psychology for the 
 
         City of Omaha Public Safety Department, as well as director of 
 
         clinical psychology at Emmanuel Hospital in Omaha.  He deals with 
 
         head injured patients in the course of his job.  He has not 
 
         personally examined claimant.  He reviewed the following medical 
 
         reports defendants supplied: Records of Dr. Taylon, Dr. Chait, 
 
         Patricia White, M.A., Nancy Appletoft, M.A., Dr. Friedlander, Dr. 
 
         Bendorf, and Dr. Blume, reports of Dr. Varney,Dr.  Schima, and 
 
         Dr. Graz, as well as the evaluation of Dr. Yenson, and an EEG 
 
         report of Dr. Hines.  Dr. Sherretts opined that claimant suffers 
 
         from post-concussion syndrome and depression.   He stated that 
 
         the hard signs of neurological damage were largely absent in that 
 
         claimant's CT scans were generally negative and that his EEG 
 
         patterns were not consistent for neurological damage.  Dr. 
 
         Sherretts later reported that a subsequent EEG, in apparent 
 
         reference to that performed by Marc Hines, M.D., had been done 
 
         over a longer time span and included conditions which previous 
 
         EEG's did not.  He reported that such EEG's may more readily 
 
         reveal certain seizure patterns.  He also stated that it was 
 
         possible claimant had developed seizures following the initial 
 
         EEG's.  The doctor stated that seizure equivalents or seizures 
 
         would not always be directly observable and would not directly 
 
         tie into or affect claimant's lifestyle or employability.  Dr. 
 
         Sherretts indicated that claimant has been on Tegretol since 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page   5
 
         
 
         
 
         January 1987 to control his seizures.  He described Tegretol as 
 
         an anticonvulsant which at times acts as a depressant and can 
 
         affect one's ability to process information.  Dr. Sherretts 
 
         opined that depression can affect one's ability to cope and 
 
         reported that a major depression could also explain claimant's 
 
         symptomatology.  He indicated that in head injured patients, 
 
         depression could originate in the injury itself or could be a 
 
         reaction to the the injury and its subsequent effects with both 
 
         factors usually contributing to the depressive disorder.
 
         
 
              Dr. Sherretts indicated that the medical records demonstrate 
 
         claimant is employed and having some difficulties, but still 
 
         coping reasonably well.  He reported that he would recommend 
 
         intensive psychotherapy for claimant in order to explain the 
 
         origins of claimant's symptoms to him and to educate claimant on 
 
         coping with those symptoms.  Dr. Sherretts indicated that 
 
         post-concussion symptoms which are present 18 to 24 months after 
 
         the injury tend to remain present to some degree permanently, but 
 
         rarely deteriorate beyond that point.  He reported that he sees 
 
         no deterioration in claimant's condition but for claimant's 
 
         possible development of a seizure disorder not previously 
 
         present.  He further opined that the medical records reviewed did 
 
         not substantiate a seizure disorder; there was no direct evidence 
 
         that claimant was having specific seizures and no evidence 
 
         medication had improved any seizure condition.  Sherretts did not 
 
         believe claimant had a major cognitive deficit but that claimant 
 
         had memory problems, fatigue, and a lack of endurance.  Sherretts 
 
         characterized litigation as stressful and as tending to 
 
         exaggerate post-concussion syndrome symptoms.  Sherretts opined 
 
         that post-concussion syndrome should not be a major factor in 
 
         claimant's ability to function on a day-to-day basis and reported 
 
         that it would be unusual for a person who had been unconscious 
 
         for four days and then responded and was released from the 
 
         hospital within twelve days to be damaged to such an extent that 
 
         the individual was unemployable.  Sherretts agreed that he was 
 
         not considering claimant's injury to his right foot when he 
 
         characterized claimant as employable.
 
         
 
              The deposition of Nils R. Varney, Ph.D., taken in the matter 
 
         of Rothe vs.  Ferris, Maranville, Diebels and Fineron, on 
 
         September 12, 1986 was offered into evidence.  Dr. Varney holds a 
 
         Ph.D. and is employed at the Veterans Administration Hospital in 
 
         Iowa City, Iowa, where he is the staff neuropsychologist and 
 
         performs neurological assessments and disability examinations.  
 
         He is also an adjunct professor of psychiatry at the University 
 
         of Iowa.  Dr. Varney initially examined claimant on July 21, 
 
         1986.  He interviewed claimant and claimant's wife in the course 
 
         of the examination.  Dr. Varney reported that claimant had a 
 
         reasonably good memory test performance, but appeared depressed 
 
         and had a below average score on word finding which score would 
 
         indicate damage to the left frontal lobe or left temporal lobe.  
 
         Dr. Varney reported that the frontal lobes are involved in 
 
         psychosocial skills, such as being reliable, planning ahead, and 
 
         being motivated.  He reported that the frontal lobes initiate 
 
         activities in which the rest of the brain is needed to accomplish 
 
         the activity.  Varney reported that claimant did nothing 
 
         constructive during a ten minute nonstructured Tinker-toy test.  
 
         The test apparently measures the ability to plan and conceive 
 
         ideas on one's own without direction from the test giver.  Varney 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page   6
 
         
 
         
 
         reported that claimant had post-traumatic anosmia, that is, 
 
         diminished smell recognition, and very poor taste acuity.  Varney 
 
         stated that those conditions indicated damage to the olfactory 
 
         nerves and were, therefore, a sign of frontal lobe injury.
 
         
 
              Varney reported that claimant's diagnosis would be 
 
         threefold: 1)  Probable partial complex seizures, that is, 
 
         psychosensory seizures, demonstrated by highly complex activity 
 
         automatisms, visual hallucinations, rage attacks, periods of 
 
         confusion, very bad headaches, and very abrupt mood changes; 2) 
 
         Organic affective disorder demonstrated by bad mood, insomnia, 
 
         anergia, tearfulness, and a subjective sense of memory loss; and 
 
         3) Multiple psychosocial deficits of a type usually associated 
 
         with damage to the orbital central cortex, demonstrated by the 
 
         failed Tinker-toy tests, word finding difficulties, loss of the 
 
         sense of smell, absent-mindedness, indecisiveness in minor life 
 
         details such,as determining how to dress or what to eat, poor 
 
         planning and poor anticipation, experiences of perplexity, the 
 
         appearance of a lack of motivation, disorganization, 
 
         nonspontaneous, inflexible and rigid behavior patterns, poor 
 
         judgment, and preservation beyond appropriate limits.  Also 
 
         included are periods of inappropriate behavior when claimant 
 
         either tunes out socially or uses coarse language or insults or 
 
         otherwise inappropriately speaks to persons, poor impulse 
 
         control, disinhibited behavior, and self-centeredness, more 
 
         inconsideration than would be normal, a childlike dependence, and 
 
         neglecting to be reinforcing to relatives.
 
         
 
              Varney opined that the third diagnosed condition would be
 
         most disabling to claimant because the frontal lobes, 
 
         particularly the orbital frontal cortex, are the the organ of 
 
         rehabilitation in psychotherapy.  Varney strongly suspected that 
 
         claimant's present employment was a "fluke" with claimant's risk 
 
         of unemployment or underemployment reaching its maximum and 
 
         staying at that maximum three to five years after his accident.
 
         
 
              Dr. Varney also testified telephonically at hearing as a 
 
         rebuttal witness for claimant.  Dr. Varney then stated that a 
 
         patient's pre-injury behavioral history is indispensable in 
 
         treating and diagnosing head injuries and, for that reason, he 
 
         had spent more than an hour talking with claimant's wife.  He 
 
         explained that frontal lobe damage decreases the ability to think 
 
         spontaneously and to make decisions and opined that claimant's 
 
         only spontaneous mental activity of note is caused by his seizure 
 
         disorder and results in irritability and bizarre behavior.  
 
         Varney stated that seizure patients typically get worse over time 
 
         if they are untreated in that the cells around the injured areas 
 
         become malfunctioning as well.  Varney reported that if the 
 
         disorder is controlled, part of the decline in the patient over 
 
         time can be reversed.  He opined that Dr. Hines' EEG had 
 
         confirmed the seizure disorder and reported that the effects of a 
 
         seizure can last two or three days following the seizure even if 
 
         the seizure itself occurs in the patient's sleep.  Varney 
 
         reported that controlling the seizure with anticonvulsant 
 
         medication will make claimant more comfortable but will not cure 
 
         his frontal lobe problem which is disabling in itself and, hence, 
 
         control of the seizures cannot make claimant a better employee.  
 
         Varney characterized the diagnosis of post-concussion syndrome as 
 
         a too vague and all encompassing term for a grab bag of symptoms. 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page   7
 
         
 
         
 
          He agreed that claimant was depressed and stated that seventy 
 
         percent of head injury patients will experience depression within 
 
         two years of their injury.  He further stated that depression 
 
         often accompanies poorly controlled seizure disorders.  He opined 
 
         that claimant's depression would be treatable only following 
 
         treatment of his seizure disorder.  He stated that if the 
 
         seizures are controlled, the depression, itself, may resolve or 
 
         be amendable to treatment with antidepressant medications.  
 
         Varney stated that antidepressant medication would be ineffective 
 
         if seizures were not controlled and could cause grand mal 
 
         epilepsy in claimant.  He opined that a negative EEG or negative 
 
         MRI did not prove that brain damage did not exist and stated that 
 
         claimant had eighteen or nineteen of twenty-two symptoms of 
 
         partial complex seizures and that, therefore, behavioral grounds 
 
         for suspecting that seizures exist were extremely solid.  Varney 
 
         opined as to claimant's extent of disability that if claimant's 
 
         seizures were controlled, claimant would be a reasonably content 
 
         but mentally inert individual.  He opined that if the seizures 
 
         were not controlled, claimant would gradually deteriorate and 
 
         eventually other deficiencies of memory or poor temper control or 
 
         depression would result in his placement in a psychiatric or 
 
         neuropsychiatric care facility.  Varney opined that in either 
 
         event claimant was totally disabled.
 
         
 
              Dr. Sherretts again testified by way of surrebuttal 
 
         testimony.  He reported that there was no reason to assume 
 
         claimant had a major seizure disorder in that claimant's sleep 
 
         disturbance and his use of antidepressant medications could both 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page   8
 
         
 
         
 
         enhance the possibility of an abnormal EEG.  He further stated 
 
         that an abnormal EEG did not necessarily demonstrate seizures in 
 
         that the absence of a behavioral change in claimant after taking 
 
         seizure medication indicated that if claimant had a seizure 
 
         disorder it was either not responding to medication or that the 
 
         abnormal EEG [did not demonstrate something] contributing to 
 
         claimant's problem.  Sherretts stated that memory gaps and 
 
         confusional spells during the day did not demonstrate a seizure 
 
         disorder.  He reported that claimant's loss of of his sense of 
 
         smell did not necessarily show frontal lobe damage in that loss 
 
         of smell was found in approximately thirty percent of individuals 
 
         having even minor head injuries.  He reported, however, that the 
 
         loss of smell did indicate the possibility of olfactory nerve 
 
         damage.  Sherretts indicated that deterioration in a brain 
 
         damaged individual's condition would not occur unless scar tissue 
 
         was filling in damaged areas.  He reported that that condition 
 
         would show on magnetic scanning; that without scarring being 
 
         documented on a magnetic scan it would be ludicrous to consider 
 
         claimant's condition as deteriorating.  Sherretts indicated that 
 
         partial complex seizures are difficult to observe and can range 
 
         from having no notable effect to an individual's having rage 
 
         reaction and extreme outbursts in mood and behavior.  Sherretts 
 
         stated that the latter behaviors are found in individuals with 
 
         very serious temporal lobe problems where the ability to control 
 
         emotion is not present.  He reported, however, that the EEG that 
 
         Dr. Hines performed shows temporal lobe spiking in the right 
 
         frontal to more central [region] which would infer temporal to 
 
         peripheral [damage].  Sherretts characterized partial complex 
 
         seizure disorders as one of the more difficult seizure disorders 
 
         to treat in that a variety of factors affect one's seizure 
 
         threshold.  Those factors include fatigue, sleeplessness, stress, 
 
         medication, diet, and allergies.  Sherretts opined the patient 
 
         must comply with treatment in each area, but if the patient does 
 
         so, generally effective seizure control can be achieved.  
 
         Sherretts disagreed that claimant is totally disabled.  He 
 
         reported that claimant could expect problems with tension and ear 
 
         ringing, as well as problems with dizziness, headaches, and 
 
         fatigue.  He reported that the fatigue could be expected to 
 
         improve over time.  Sherrets again stated that post-concussion 
 
         syndrome symptoms are worsened with stress, fatigue, or illness.  
 
         He reported that claimant could expect his symptoms to improve 
 
         over the next three to five years if claimant did not consider 
 
         himself disabled.  He expressed once again his understanding that 
 
         claimant had done a very commendable job at work until recently 
 
         and stated that if the medical reports were accurate, he would 
 
         expect that behavior to continue '  Sherretts stated that he 
 
         would be cautious in placing claimant in a position requiring a 
 
         high degree of sustained vigilance, particularly where the safety 
 
         of others would be dependent upon claimant.  He stated that one 
 
         must look at claimant's areas of deficit and take those into 
 
         account in searching for employment for claimant.  He opined it 
 
         would not be a particularly difficult task to find claimant 
 
         employment taking those into account assuming claimant was 
 
         sufficiently motivated for employment.  Sherretts agreed that an 
 
         individual with post concussion syndrome symptoms should exercise 
 
         extra vigilance in driving.
 
         
 
              Karen Stricklett testified.  Ms. Stricklett hold a Masters 
 
         Degree in counseling and is a certified rehabilitation counselor 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page   9
 
         
 
         
 
         as well a certified insurance rehabilitation specialist, who is 
 
         certified to administer the general aptitude test battery.  She 
 
         is self-employed, but also works with Dr. Sherretts in the 
 
         Emmanual Hospital Rehabilitation Unit.  Ms. Stricklett reported 
 
         she has worked with head injured patients and inpatient 
 
         counseling at the rehabilitation unit and has had four head 
 
         injury clients during the past five years whom she followed from 
 
         hospital release to job placement.  She reported that she had 
 
         reviewed reports concerning claimant supplied her and had asked 
 
         Dr. Sherretts to review those reports as well.  Ms. Stricklett 
 
         stated that she normally works with rehabilitation clients 
 
         residing in small towns in Iowa and Nebraska and that she assumed 
 
         Denison, Iowa was similar to most other small towns in that 
 
         region.  She reported that the jobs she considered for claimant 
 
         would appear consistent with jobs found in small towns as the 
 
         jobs were all entry level jobs.
 
         
 
              Strickett opined that without retraining claimant could work 
 
         as a service station attendant, a surveyor's helper, a cashier, a 
 
         hotel desk clerk, a mail clerk, a messenger, a shipping and 
 
         receiving or order clerk, or a security guard.  She reported that 
 
         a sales route driver position was considered for claimant before 
 
         the seizure disorder was diagnosed.  Stricklett stated that the 
 
         jobs outlined, even if sales jobs, were not the type of sales 
 
         jobs that would involve higher pressured social interaction 
 
         between the employee and others.  Stricklett opined that with 
 
         training, claimant could consider a position in drafting as his 
 
         visual and spatial perceptual skills were excellent; he had done 
 
         very well on his block design test; and he had a very high 
 
         performance I.Q. Stricklett stated that drafting would not 
 
         require a great deal of verbal activity and that an individual 
 
         would be working regularly with information and things and 
 
         objects as opposed to people.  She also stated that because of 
 
         claimant's strong mechanical interest, auto mechanics, civil 
 
         mechanics, or architectural positions, and an automotive parts 
 
         clerk were positions to be considered.  She reported that an 
 
         electronics position would also utilize claimant's very good 
 
         mental math skills and his good visual and perceptual skills.  
 
         Stricklett had considered a precision machine operator for 
 
         claimant prior to considering the seizure disorder.
 
         
 
              Stricklett opined that transportation could be a problem for 
 
         claimant in getting from his Denison home to jobs in the 
 
         surrounding environs, but if claimant could not drive, car 
 
         pooling was a possible option.  She agreed that the Christmas 
 
         season would be hectic for sales clerks and stated that it was 
 
         uncertain whether claimant should carry a gun if he worked as a 
 
         security guard considering his seizure disorder.  Stricklett 
 
         agreed that a surveyor has to walk and carry instruments.  She 
 
         reported that while claimant reports he is unstable in his gait 
 
         and has a medical disability related to his right foot he has no 
 
         medical restrictions relative to the foot.  Stricklett agreed 
 
         that if claimant had actually missed part of twenty-six work days 
 
         in January 1985, that work record would seriously handicap his 
 
         ability to compete in the job market.  Stricklett described a 
 
         self-fulfilling prophecy as a vocational term describing the 
 
         phenomenon that people will tend to do what they are told they 
 
         can do.  She agreed that Dr. Varney's report came out in July 
 
         1986 and expressed her understanding that Dr. Varney had 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  10
 
         
 
         
 
         explained his diagnosis to claimant.  She also expressed her 
 
         understanding that claimant's greatest problems had developed in 
 
         the last five or six months.  Stricklett reported that she has 
 
         worked with two individuals who have grand mal seizures and that 
 
         both are employable when the condition is controlled with 
 
         medication.  She reported that one is currently employed as a 
 
         radio electronics worker and the other is attending college to 
 
         obtain training as an accountant.
 
         
 
              As the parties have stipulated that a causal relationship 
 
         exists between claimant's claimed disability and his injury, 
 
         medical evidence will be reviewed only insofar as the evidence is 
 
         relevant to the determination of the nature and extent of 
 
         claimant's disability.
 
         
 
              A St. Joseph Hospital discharge summary of June 8, 1983 of 
 
         Griffin Evans, M.D., and Charles Taylon, M.D., reports that an 
 
         emergency CT scan upon claimant's arrival at the hospital 
 
         revealed a a small epidural hemitoma on the right parietal region 
 
         with some surrounding brain edema.  A little midline shift was 
 
         also seen on the CT scan.  Follow-up CT scan of the head revealed 
 
         a slight increase in the epidural hemitoma over the right 
 
         parietal region with some evidence of mass effect with 
 
         obliteration of the frontal horn of the right lateral ventrical.  
 
         Specialists in ENT examined claimant and felt that his seventh 
 
         nerve palsy was most likely due to a basilar skull fracture with 
 
         fracture of the petrous bone.  A CT scan of the temporal bone 
 
         revealed fracture to the right temporal bone just anterior to the 
 
         mastoid.  Fluid and hemorrhage was found in the middle ear cavity 
 
         on the right.  There was some suggestion of disruption of the 
 
         ossicle chain.  Dr. Taylon is apparently not board certified.  He 
 
         is associated with the Creighton University School of Medicine, 
 
         Department of Surgery Division of Neurosurgery, however.
 
         
 
              William R. Hamsa, Jr., M.D., initially saw claimant in 
 
         January 1984 with complaints of a painful metatarsal joint in his 
 
         right foot.  Examination of the foot showed normal motion in the 
 
         ankle, subtalar and metatarsal joints with definite restricted 
 
         dorsiflexion and plantar flexion in the metatarsal phalangeal 
 
         joint of the right great toe with tenderness about the joint.  
 
         X-rays apparently revealed small amounts of cyst formation on the 
 
         media side of the metacarpophalangeal head of the first wave with 
 
         suggestion of some very early osteoarthritic change in the joint 
 
         surface.  Traumatic synovitis or arthritis of the 
 
         metacarpophalangeal joint of the right great toe was diagnosed 
 
         and metatarsal bars for claimant's shoes were recommended.  Dr. 
 
         Hamsa subsequently opined that claimant had traumatic 
 
         chlondromalacia, and on November 6, 1984 injected steroids into 
 
         the joint.  On November 24, 1984, Dr. Hamsa indicated claimant 
 
         had excellent relief of pain since the injection, had a fair 
 
         range of motion, and a little bit of pain on extremes of 
 
         dorsiflexion or plantar flexion.  He did not believe reinjection 
 
         was indicated.  Claimant was to be seen on as-needed basis 
 
         subsequent to that date.
 
         
 
              David H. Chait, M.D., an otolaryngologist, treated claimant 
 
         for dizziness, balance problems, and hearing loss following his 
 
         injury.  On September 7, 1983, he reported that an ENG 
 
         demonstrated a right peripheral labyrinthine weakness compatible 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  11
 
         
 
         
 
         with previous head injury or resolving phase of post-traumatic 
 
         labyrinthine hydrops.  He further reported that if claimant had a 
 
         reoccurrence of the symptoms of dizziness, then his diagnosis 
 
         would be post-traumatic labyrinthine hydrops.  On January 23, 
 
         1984, Dr. Chait reported that claimant continued to have 
 
         imbalance problems and that some central nervous system injury 
 
         accompanied the imbalance which was due to the vestibular injury.  
 
         Right facial paralysis was improved considerably.  Hearing in the 
 
         right ear was diminished slightly when compared to the left.  
 
         Claimant was also complaining of nasal obstruction which the 
 
         doctor felt could be traced to facial nerve injury.
 
         
 
              On January 15, 1985, Dr. Chait opined  that  under  the  
 
              Journal of American Medical Association Guides for 
 
              Evaluation of Hearing Handicaps, claimant's right ear 
 
              handicap was 0 percent; left ear 0 percent; binaural 0 
 
              percent with an overall disability rating of 0 percent. 
 
               Dr. Chait evaluated claimant's dizziness under the 
 
              American Medical Association Guides to Evaluation of 
 
              Permanent Impairment and rated claimant as having a 
 
              number 2 impairment under the audiology standards or a 
 
              5 to 10 percent of the whole "man" impairment.  He 
 
              reported that under that impairment rating, the usual 
 
              activities of daily living can be performed without 
 
              assistance except activities involving personal and 
 
              public safety such as operating a motor vehicle or 
 
              riding a bicycle.
 
         
 
              On December 16, 1983, Charles Taylon, M.D., opined that 
 
         claimant's prognosis was good and stated he did not anticipate 
 
         permanent neurological disability for claimant.  Dr. Taylon then 
 
         did not recommend further treatment for claimant.  A CT scan 
 
         performed on August 2, 1983 was interpreted as normal.  Dr. 
 
         Taylon again saw claimant on February 5, 1985.  Claimant was then 
 
         complaining of memory problems, both long and short term memory.  
 
         Claimant complained that he had problems with spelling and word 
 
         association, stiff neck and continuing fatigue as well as 
 
         right-sided facial sensitivity.  Claimant reported problems with 
 
         smelling, ringing in the ears, and loss of hearing.  He reported 
 
         his jaw was tight and claimed he always had a headache as well as 
 
         pain in his right foot on the large toe.  Dr. Taylon reported 
 
         that neurological examination at that time did not reveal 
 
         abnormalities.  A CT scan of February 5, 1985 was normal.  An EEG 
 
         of February 12, 1985 was interpreted as normal.  Dr. Taylon then 
 
         referred claimant to Richard Friedlander, for neuropsychiatric 
 
         testing.  Dr. Taylon again opined that claimant had no objective 
 
         evidence of disability from a neurosurgical point of view.
 
         
 
              Edward M. Schima, M.D., evaluated claimant on April 22, 
 
         1986.  He had also treated claimant in October 1983 as well and 
 
         had referred claimant to Richard Friedlander, Ph.D. for 
 
         psychological evaluation on November 12, 1983.  Dr. Schimals 
 
         report indicates that a repeat CT scan of claimant's head done on 
 
         November 8, 1983 revealed a post-surgical defect in the right 
 
         frontal area.  Schima reported that patient could walk briskly on 
 
         a normal basis.  An EEG was essentially normal.  Schima reported 
 
         that neurological examination was unremarkable apart from absent 
 
         detection of camphor bilaterally, flattening of the left nasal 
 
         labial fold and some difficulty walking on his heels.  He stated 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  12
 
         
 
         
 
         that claimant seemed to have made a good recovery with a major 
 
         source of his disability being in the cognitive and behavioral 
 
         sphere.  He reported that in addition to memory and language 
 
         functional impairment, claimant appeared depressed with that 
 
         being the most treatable aspect of his condition.  The doctor 
 
         stated: "However, the wife's concern that there has been a change 
 
         in personality, as well as his performance on psychological 
 
         testing would raise the question of predominantly frontal 
 
         involvement which may sometimes elude detection on standard 
 
         psychologial testing."  Dr. Schima is associated with Omaha 
 
         Neurological Clinic.
 
         
 
              Horst H. Blume, M.D., a board certified neurologist, 
 
         examined claimant on July 9, 1984.  His impression was that 
 
         claimant had some intermittent occipital myalgia-neuralgia, right 
 
         more than left.  He believed claimant had sustained a cerebral 
 
         concussion most likely of the areas of left cerebral hemisphere 
 
         responsible for some of his speech impairment.  He felt claimant 
 
         had intermittent lower cervical nerve root irritation syndrome 
 
         without motor or sensory deficit.
 
         
 
              Charles M. Graz, M.D., assistant professor of the department 
 
         of psychiatry and behavioral science, Creighton University, 
 
         evaluated claimant on October 11, 1985.  He believed claimant's 
 
         diagnosis was more towards an organic personality syndrome than 
 
         an organic affective syndrome.  He stated that claimant's 
 
         features suggested some emotional lability with temper loss and 
 
         marked apathy and indifference.  He noted those are features of 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  13
 
         
 
         
 
         an organic personality syndrome.  Dr. Graz indicated that while 
 
         claimant had some depressed features noted, other classical 
 
         depressive features were not seen.  He felt that claimant's 
 
         depression, that is his apathy, was probably more related to an 
 
         organic condition than a mood disturbance.  He noted that he did 
 
         not sense the anguish, pain, and suffering that someone in 
 
         depression experiences in claimant.  The doctor opined that if 
 
         claimant's mental state continued over the next several years it 
 
         would not change significantly.
 
         
 
              Robert E. Joneson, Ph.D., clinical psychologist, 
 
         administered the Luria-Nebraska Neuropsychological Battery; 
 
         Wechsler Adult Intelligence Scale-revised on claimant as part of 
 
         a neuropsychological evaluation on October 9, 1985. on the 
 
         Wechsler claimant obtained a full scale I.Q. score of 116, a 
 
         performance I.Q. score of 124, and a verbal I.Q. score of 107.  
 
         The scores indicate claimant is functioning in above-average 
 
         intelligence range.  The doctor opined that in an absolute sense, 
 
         any deficits claimant has [as a result of his injury], are likely 
 
         to be extremely minimal and probably do not greatly affect his 
 
         level of adaptive functioning.  Claimant's performance on the 
 
         Luria-Nebraska test was essentially negative demonstrating that 
 
         claimant was not experiencing significant neuropsychological 
 
         deficits.  In conclusion, Dr. Joneson noted that following 
 
         trauma, neuropsychological disabilities which are largely 
 
         accounted for by certain areas of cerebral activity in time 
 
         commonly are taken over by new functional systems which develop.  
 
         Neuropsychological ability then returns to a level very near to 
 
         premorbid functioning.  In a follow-up report of November 7, 
 
         1985, Dr. Joneson stated he considered claimant from an emotional 
 
         standpoint to be quite depressed and as having difficulty 
 
         functioning.  He reported that he had visited with claimant on a 
 
         number of occasions prior to administering the test battery and 
 
         that claimant then had shown significant signs of depression 
 
         including sleep disturbance, lack of motivation and energy, mood 
 
         disturbances and irritability.
 
         
 
              On July 7, 1986, Ronald L. Bendorf, M.D., a board certified 
 
         psychiatrist, reported that he had initially evaluated claimant 
 
         in August 1985 and claimant then had a mild organic brain 
 
         syndrome secondary to cerebral trauma and reactive depression.  
 
         Claimant was treated with antidepressant medication and 
 
         supportive therapy through June 16, 1986.  Dr. Bendorf's 
 
         impression as of July 7, 1986 was that claimant continued to 
 
         manifest some mild to moderate depressive symptomatology of a 
 
         reactive nature associated with his injuries.  The doctor 
 
         reported there was a very strong likelihood that some of the 
 
         depression would persist and become a more chronic dysthylic 
 
         disorder.  The doctor reported that magnetic imaging of 
 
         claimant's brain on April 30, 1986 was interpreted as within 
 
         normal limits and failed to show any abnormal imaging of the 
 
         intercranial contents.  He anticipated claimant would improve 
 
         somewhat once the "stress of his suit" had been resolved, but 
 
         felt a chronic depressive element existed which would not likely 
 
         resolve.  Dr. Bendorf reported it was difficult to say how much 
 
         disability claimant's chronic depression would cause, but that he 
 
         felt it would be a contributing factor to his overall 
 
         incapacity.
 
         
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  14
 
         
 
         
 
              D.M. Lambert, M.D., a psychiatric consultant, evaluated 
 
         claimant on or about April 10, 1985.  He opined that claimant did 
 
         not display symptoms of clinical depression but that tests 
 
         administered indicated a long-term psychological adaptive 
 
         mechanism rather than a depressive illness.
 
         
 
              Claimant was evaluated at the Psychological Services Center 
 
         of the University of South Dakota on September 28, 1984.  In a 
 
         report of Patricia White, M.A., clinical psychology trainee, 
 
         claimant was advised that the findings from the 
 
         neuropsychological test suggested no major brain dysfunction or 
 
         impairment.
 
         
 
              Nancy Appletoft, M.A., speech language pathologist, 
 
         evaluated claimant on September 18, 1984.  She believed following 
 
         assessment that claimant was functioning on the purposeful and 
 
         appropriate level of the Rancho Los Amigos Scale of Cognitive 
 
         Functioning.  Language characteristics were minimal auditory 
 
         receptive and auditory memory deficit, minimal reading deficit, 
 
         mild word finding problem, minimal writing deficit, and mild 
 
         arithmetic deficit.  Claimant had no observable difficulties in 
 
         orientation, fund of general information, problem solving, 
 
         reasoning or organizational skills.
 
         
 
              Richard Friedlander, Ph.D., clinical psychologist, evaluated 
 
         claimant on November 12, 1983.  Assessment procedures were the 
 
         Wechsler Adult Intelligence Scale-Revised, wide range achievement 
 
         test, spelling section, partial Luria-Nebraska Psychological 
 
         Battery For Memory Scale, receptive speech scale and a 
 
         psychological interview.  Intellectual assessment on the Wechsler 
 
         indicated a current full-scale I.Q. of 113, approximately the 
 
         80th percentile level of claimant's age group.  A verbal I.Q. of 
 
         100, 50th percentile level; and a performance I.Q. of 130, the 
 
         98th percentile level.  Dr. Friedlander noted that claimant 
 
         experienced cognitive fatigue as well as physical fatigue after a 
 
         fairly brief period of concerted effort.  He appeared to have 
 
         experienced a decline in his spelling ability, scoring at the 8.7 
 
         grade level on a standard spelling achievement test.  Claimant's 
 
         strengths were highly developed visual analysis and integrated 
 
         skills as well as a keen ability to size up social situations.
 
         
 
              Dr. Varney reported that as of the examination on July 21, 
 
         1986, claimant performed at the bright normal level on the 
 
         Wechsler verbal scales with a verbal I.Q. of 117, 87th 
 
         percentile, and in a very superior level on the Wechsler 
 
         performance scale with a performance I.Q. of 136, 99th 
 
         percentile.  Verbal and nonverbal short-term memory were also far 
 
         above average.  Recent memory and temporal orientation were 
 
         intact.  Word finding was relatively weak while reading and 
 
         spelling were far above average.  Instructural praxis and spatial 
 
         orientation were intact.
 
         
 
              Marc E. Hines, M.D., a board certified neurologist, reported 
 
         that a 24 hour ambulatory EEG performed on September 4, 1986 
 
         showed frontal-central focal episodes, very proximal and very 
 
         focal in character; approximately 18 episodes during sleep and 
 
         lasting up to twelve to fifteen seconds with focal short and slow 
 
         episodes with disruption of background rhythm activity.  
 
         Occasional bursts of focal spike was seen in the same area.    
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  15
 
         
 
         
 
         The doctor's impression was that the EEG was diagnostic of focal 
 
         epileptiform abnormality in the right frontal-central area.
 
         
 
              On July 11, 1984, defendants' counsel advised claimant's 
 
         counsel that Aetna and Denison Job Corp did not authorize medical 
 
         treatment of claimant by Dr. Horst Blume, Dr. Anderson, or Dr. 
 
         Myer.  On July 30, 1984, P. L. Myer, D.O., advised that he had 
 
         referred claimant to a Dr. Don Anderson, of Denison, on September 
 
         12, 1984 for injuries and problems resulting from his May 25, 
 
         1983 injury.  On August 3, 1984, D. D. Anderson, D.C., advised 
 
         Jim Spitsen, Commercial Insurance Division, that he had referred 
 
         claimant for neurological evaluation to Dr. Blume.  On March 12, 
 
         1985, Dr. Taylon advised that he had referred claimant to a Dr. 
 
         Robert Soll, in Denison, and to Dr. Blume.  He also indicated he 
 
         was referring claimant to the Denison Health Center for 
 
         evaluation.
 
         
 
              The balance  of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                             APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first issue is nominally whether claimant is entitled to 
 
         benefits and the nature and extent of his benefit entitlement.  
 
         While the parties have stipulated claimant's work injury and his 
 
         disability are causally related, they have left the issue of the 
 
         exact nature of claimant's disabling condition undecided.  We 
 
         believe that question must be examined using a causal 
 
         relationship analysis:
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 25, 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.  
 
         E. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v.Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W. 2d 128 (1967).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  16
 
         
 
         
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physician's examination at a later date and not when the 
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the fact finder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1967)
 
         
 
              A doctor's expertise and board certification also may accord 
 
         his testimony greater weight.  See Reiland v. Palco, Inc., 32 
 
         Biennial Report of the Industrial Commissioner.  Dec. 1975); 
 
         Dickey v. ITT Continental Baking Co., 34 Biennial Report of the 
 
         Industrial Commissioner 89 (Rev. Dec. 1979).
 
         
 
              Permanent means for an indefinite and undeterminable period.  
 
         Wallace v. Brotherhood of Locomotive Firemen & Eng'rs, 230 Iowa 
 
         1127, 1130, 300 N.W. 322, 324 (1941), citing Gardner v. New 
 
         England Mut. Life Ins. Co., 218 Iowa 1094, 1104, 254 N.W. 287, 
 
         292 (1934).
 
         
 
              Claimant has a documented and little disputed problem with 
 
         his right foot for which he wears a metatarsal bar in his shoe.  
 
         The condition does not result in obvious impairment.  Claimant 
 
         has no medically imposed restrictions on account of it.  Hence, 
 
         we do not believe that it produces significant disability to 
 
         claimant.  Claimant claims dizziness, balance and hearing loss 
 
         problems.  Dr. Chait described claimant's right ear hearing as 
 
         diminished slightly when compared to the left on January 23r 
 
         1984.  By January 15, 1985, however Dr. Chait opined that 
 
         claimant had a zero percent overall hearing handicap.  For that 
 
         reason, we believe that whatever claimant's own perception of his 
 
         hearing capabilities, the objective evidence does not support a 
 
         finding that claimant has a significant hearing handicap on 
 
         account of his work injury.  Dr. Chait did opine that claimant 
 
         has a class 2 or 5 to 10 percent body as a whole impairment on 
 
         account of his dizziness and reported that under that standard 
 
         the usual activities of daily living can be performed without 
 
         assistance but for activities involving personal or public safety 
 
         such as operating a motor vehicle or riding a bicycle.  We find 
 
         the doctor's opinion substantiates claimant's claim that his 
 
         dizziness continues to create problems for him.
 
         
 
              Claimant's other alleged problems relate to his emotional 
 
         and cognitive functioning.  The fighting issues between the 
 
         parties relate to the nature of and degree of difficulties 
 
         claimant's alleged deficits in these areas of functioning cause 
 
         him.  At the onset we are disappointed that neither party offered 
 
         the testimony of claimant's treating neurologist or his treating 
 
         psychiatrist.  The insights of the treating physician because of 
 
         that physician's ongoing relationship with the claimant are of 
 
         significant value in assessing problems such as claimant alleges.  
 
         Dr. Taylon's report alone is not of significant assistance, 
 
         however.  We do not know that as of December 16, 1983, Taylon 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  17
 
         
 
         
 
         believed claimant's prognosis was good; as of February 12, 
 
         1985--some fourteen months later--he felt claimant had no 
 
         permanent neurological impairment.  He interpreted CT scans of 
 
         August 2, 1983 and February 5, 1985 and an EEG of February 12, 
 
         1985 as normal.  Hence, claimant's treating physician did not 
 
         believe claimant had significant neurological damage.  Dr. 
 
         Taylon's reports in evidence to not reflect that he was ever 
 
         concerned that claimant might have orbital central cortex or 
 
         frontal lobe damage or partial complex seizures.  We find that 
 
         disturbing given the doctor's long-term relationship with 
 
         claimant.  Taylon, while associated with the Creighton University 
 
         Medical School Division of Neurosurgery, is not a board certified 
 
         neurosurgeon, however.  Horst Blume, a board certified 
 
         neurologist who examined claimant only on July 7, 1984, felt 
 
         claimant had a likely cerebral concussion of areas of left 
 
         cerebral hemisphere responsible for some speech impairment.  He 
 
         did not report findings of other significant neurological 
 
         impairment.  Dr. Schima, who is associated with the Omaha 
 
         Neurological Clinic, but whose letterhead does not identify him 
 
         as board certified in neurology, examined claimant on April 22, 
 
         1986.  He found claimant's neurological exam unremarkable but for 
 
         three items including absence of camphor detection bilaterally.  
 
         He felt claimant had made a good recovery but for disabilities 
 
         remaining in the cognitive and behavioral spheres.  He stated a 
 
         question of predominantly frontal involvement which could elude 
 
         detection on standard psychological testing remained given 
 
         claimant's wife's concern with claimant's personality changes and 
 
         claimant's performance on psychological testing.  Despite Dr. 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  18
 
         
 
         
 
         Schima's lack of board certification, we give great weight to his 
 
         opinion as he appears to have thoroughly and objectively examined 
 
         and evaluated claimant.  His opinion supports Dr. Varney's 
 
         contention that claimant had damage to the orbital central 
 
         cortex.  Claimant's wife's and his employer's testimony are also 
 
         consistent with Dr. Varney's testimony as regards claimant's 
 
         primary disability.  Claimant apparently now has many symptoms of 
 
         orbital central cortex damage which were not present prior to his 
 
         injury.  His wife testified to these at hearing and apparently 
 
         report them to both Dr. Schima and Dr. Varney.  Ms. Nolan's 
 
         testimony as to claimant's preinjury moods and behavior is not 
 
         sufficient to override claimant's wife's testimony regarding 
 
         claimant's personality changes given that Mrs. Rothe also 
 
         reported such changes to Dr. Schima.  We, therefore, reject Dr. 
 
         Sherretts' diagnostic opinion that claimant's primary difficulty 
 
         is a post-concussion syndrome.  We note that acceptance of Dr. 
 
         Varney's opinion in this matter does not mean we accept his 
 
         opinion whole handedly.  Both Dr. Varney and Dr. Sherretts at 
 
         times appeared more concerned with promoting the position 
 
         espoused by the party for whom they were called as a witness than 
 
         with objectively assisting us in reaching the truth in this 
 
         matter.  For that reason, we have sought more diligently than we 
 
         might otherwise have had need for more objective evidence 
 
         supporting their conclusions before adopting any conclusions of 
 
         either of these two clinical neuropsychologists.
 
         
 
              We next address the question of whether claimant has partial 
 
         complex seizures.  Dr. Varney so opines stating claimant has 18 
 
         to 22 symptoms of such seizures.  Dr. Sherretts disagrees stating 
 
         that hard signs for neurological damage are largely absent on CT 
 
         scans and that the EEG's are inconsistent for seizures.  He later 
 
         stated, however, that where partial complex seizures are present 
 
         with temporal lobe problems extreme rage reactions and extreme 
 
         [changes] in mood and behavior are likely to occur.  Dr. 
 
         Sherretts agreed that the 24 hour ambulatory EEG which Dr. Hines, 
 
         a board certified neurologist, performed on September 4, 1986 may 
 
         more readily show seizures if present.  The EEG was interpreted 
 
         as showing focal epileptiform abnormality in the right 
 
         frontal-central area.  Claimant's wife, a credible witness who 
 
         appeared genuinely concerned with the well-being of her family 
 
         and not merely with the outcome of this claim, testified as to 
 
         claimant's spontaneous outbursts in their home and against their 
 
         nine year old daughter.  She also testified claimant is more of a 
 
         person now than he was prior to going on seizure control 
 
         medication.  Claimant's employer testified to inappropriate 
 
         incidents at work.  Mr. O'Connor also appeared a sincere, 
 
         truthful individual who would not have manufactured incidents or 
 
         impressions simply to promote claimant's claim.  We find the 
 
         combination of the above supports a finding that a high 
 
         probability exists that claimant has partial complex seizures 
 
         which will likely significantly diminish his well-being if not 
 
         controlled.
 
         
 
              Various practitioners have opined that claimant suffers from 
 
         either a reactive or an organic depression. others have stated 
 
         that an organic personality syndrome or long-term psychological 
 
         adoptive mechanism accounts for his clinical symptomatology.  
 
         Claimant's psychological symptomatology has not responded to 
 
         treatment with either antidepressant medication or with 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  19
 
         
 
         
 
         supportive therapy from Dr. Bendorf.  Dr. Bendorf opined a very 
 
         strong likelihood existed that the depression would persist and 
 
         become a more chronic dysthylic disorder.  Dr. Sherretts and Dr. 
 
         Varney both opined depression is an extremely common reaction to 
 
         head injury.  Claimant's psychological problems at least in part 
 
         have an organic basis related to his injury and are likely to be 
 
         a longstanding handicap to him.
 
         
 
              Having assessed the nature of claimant's functional 
 
         disabilities, we reach the question of the nature and extent of 
 
         his benefit entitlement.  Initially, we do not believe claimant 
 
         has made a prima facie showing he is an odd-lot employee.
 
         
 
         
 
              In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), 
 
         the Iowa-court formally adopted the "odd-lot doctrine." Under 
 
         that doctrine a worker becomes an odd-lot employee when an injury 
 
         makes the worker incapable of obtaining employment in any well 
 
         known branch of the labor market.  An odd-lot worker is thus 
 
         totally disabled if the only services the worker can perform are 
 
         "so limited in quality, dependability, or quantity that a 
 
         reasonably stable market for them does not exist.
 
         
 
              The burden of persuasion on the issue of industrial 
 
              disability always remains with the worker.  However, 
 
              when a worker makes a prima facie case of total 
 
              disability by producing substantial evidence that the 
 
              worker is not employable in the competitive labor 
 
              market, the burden to produce evidence of suitable 
 
              employment shifts to the employer.  If the employer 
 
              fails to produce such evidence and the trier of fact 
 
              finds the worker does fall in the odd-lot category, the 
 
              worker is entitled to a finding of total disability.  
 
              Id. Even under the odd-lot doctrine, the trier of fact 
 
              is free to determine the weight and credibility of 
 
              evidence in determining whether the worker's burden of 
 
              persuasion has been carried, and only in an exceptional 
 
              case would evidence be sufficiently strong to compel a 
 
              finding of total disability as a matter of law.  Id. In 
 
              Guyton, the court also stated the following regarding 
 
              determination of a worker's industrial loss.
 
         
 
                   The question is more than the one posed by the 
 
              commissioner concerning what the evidence shows Guyton 
 
              "can or cannot do." The question is the extent to which 
 
              the injury reduced Guyton's earning capacity.  This 
 
              inquiry cannot be answered merely by exploring the 
 
              limitations on his ability to perform physical activity 
 
              associated with employment.  It requires consideration 
 
              of all the factors that bear on his actual 
 
              employability.  See New Orleans (Gulfwide) Stevadores 
 
              v. Turner, 661 F.2d 1031, 1042 (5th Cir.1981) (are 
 
              there jobs in the community that the worker can do for 
 
              which he could realistically compete?) Id.
 
         
 
              Claimant remains at work despite his difficulties and even 
 
         if he were to no longer hold  his present employment, he has not 
 
         shown he has sought work and  been unable to find any on account 
 
         of his injury.  See Emshoff v. Petroleum Transportation Services 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  20
 
         
 
         
 
         and Great West Casualty, file number 753723, Appeal Decision 
 
         filed March 31, 1987.
 
         
 
              We do not accept Dr. Varney's worse case scenario as the 
 
         only outcome available to claimant.  It is not wholly consistent 
 
         with our past experience with brain damaged claimants.  See 
 
         section 17A.14.5. Furthermore, disability must be judged on 
 
         claimant's present circumstances.  Dr. Varney asks us to project 
 
         into the future.  That we may not and will not do.  Should 
 
         claimant's circumstances change significantly, review-reopening 
 
         of his claim is available.  Similarly, Dr. Varney's opinion that 
 
         claimant is 100 percent disabled appears to include more than a 
 
         functional rating of claimant; it appears to reflect Dr. Varney's 
 
         belief that claimant, at best, can be made comfortable but is 
 
         otherwise mentally inert.  Likewise, claimant has not shown he is 
 
         otherwise totally disabled at this time.
 
         
 
                   For workmen's (sic) compensation purposes total 
 
              disability does not mean a state of absolute 
 
              helplessness, but means disablement of an employee to 
 
              earn wages in the same kind of work, or work of a 
 
              similar nature, that he was trained for, or accustomed 
 
              to perform, or any other kind of work which a person of 
 
              his [sic] mentality and attainments could do.  Franzen 
 
              v. Blakley, 155 Neb. 621, 51 N.W.3d 833 (1952).  Total 
 
              and permanent disability contemplates the inability of 
 
              the workman (sic) to perform any work for which he 
 
              (sic) has the experience or capacity to perform.  Shaw 
 
              v. Gooch Feed Mill Corp., 210 Neb. 17, 312 N.W.2d 682 
 
              (1981).
 
         
 
              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 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  21
 
         
 
         
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability. it 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985);  Christensen v. Hagen, Inc., (Appeal 
 
         Decision, March 26, 1985).
 
         
 
              Karen Stricklett, a certified rehabilitation counselor, 
 
         testified to a number of positions she believes claimant could 
 
         hold.  While Ms. Stricklett had not expressly evaluated the 
 
         Denison, Iowa job market, we do not believe that job market could 
 
         differ so significantly from the job market in other small towns 
 
         in Iowa and Nebraska with which Ms. Stricklett is familiar as to 
 
         seriously discredit her conclusions.  Likewise, we agree that 
 
         claimant because of either his dizziness or his likely partial 
 
         complex seizures would have difficulty driving.  We do not find 
 
         that precludes him from all employment in the Denison environs, 
 
         however.  Entry level positions such as Ms. Stricklett outlined 
 
         might well be available to claimant in Denison itself.  We do not 
 
         believe claimant's foot injury precludes his walking modest 
 
         distances to employment.  Likewise, claimant has not shown 
 
         car-pooling to jobs in the surrounding area is not a possibility 
 
         for him.  His handicaps prevent his driving, but not his riding 
 
         in a car.
 
         
 
              Claimant.nevertheless/has significant disabilities for a 
 
         younger worker.  He has a 5 to 10 percent body as a whole 
 
         impairment on account of is dizziness/balance problems as well as 
 
         impairment from the organic and psychological problems outline 
 
         above.  While we reject Dr. Varney's 100 percent disability 
 
         rating, claimant has significant symptoms and suffers significant 
 
         handicaps on account of his diagnosed organic and depressive 
 
         difficulties.  These already have a serious impact on his ability 
 
         to enter into life activities and maintain employment.  They may 
 
         well decrease his ability to remain employed in the future.  
 
         Indeed, claimant and his wife both appear highly motivated to 
 
         develop and maintain claimant's optimum employment potential 
 
         whatever that may be.  Claimant appears to have had a supportive 
 
         and tolerant employer.  The evidence suggests this is not a 
 
         situation which will be maintained indefinitely in the future, 
 
         however.  Claimant is a bright individual who has consistently 
 
         performed very well on intelligence testing.  His cognitive 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  22
 
         
 
         
 
         deficits include his word finding difficulties and his difficulty 
 
         with simple decision making as demonstrated on the Tinker-toy 
 
         test.  He may, therefore, require greater direction or overt 
 
         instruction, either orally or verbally, than would an individual 
 
         without brain damage.  We do not believe that necessarily 
 
         precludes his performing the jobs Ms. Stricklett believed were 
 
         now available to him; nor do we believe those handicaps preclude 
 
         claimant from attempting retraining for positions Ms. Stricklett 
 
         believed claimant might be able to perform with retraining.  We 
 
         note defendants have not attempted any form of head injury 
 
         rehabilitation with claimant.  They did return him to work, 
 
         however, and cannot fairly be burdened with the fact that 
 
         claimant chose to end that employment and seek other work.  
 
         Claimant's earnings now apparently exceed his earnings when 
 
         injured.  Having considered all factors, we believe claimant has 
 
         sustained a loss of earning capacity of 65 percent.
 
         
 
              Claimant seeks payment of medical costs under section 85.27. 
 
         We note at the onset that our analysis of this issue is made more 
 
         difficult by the fact that little evidence relating to claimant's 
 
         alleged medical costs is available to us.  Exhibit 46, claimant's 
 
         handwritten compilation of alleged medical and medical mileage 
 
         costs, was not timely served and, therefore, was inadmissible.  
 
         Additionally, little other evidence as regards medical care or as 
 
         regards costs of medical services was placed in the record.  The 
 
         section requires the employer to provide reasonable and necessary 
 
         medical care; it allows the employer to select the care provider; 
 
         and provides claimant with a method by which claimant may 
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  23
 
         
 
         
 
         petition for alternate care.  Claimant may seek other care of his 
 
         own accord in an emergency, however.
 
         
 
              Claimant testified his treating physician, Dr. Taylon, 
 
         referred him to Horst Blume, M.D. Dr. Taylon concurs and also 
 
         apparently referred claimant to a Dr. Robert Soll and to the 
 
         Denison Health Center.  Dr. Taylon was claimant's authorized 
 
         treating physician.  Claimant's referral by a treating physician 
 
         to another care provider is generally considered authorized care 
 
         unless the employer/insurer otherwise advises claimant.  Hence, 
 
         claimant is entitled to payment of costs incurred with Dr. Soll 
 
         and the Denison Health Center.  Claimant is also entitled to 
 
         payment of any costs incurred with Dr. Blume until defendants 
 
         advised claimant's counsel on July 11, 1984 that medical 
 
         treatment with Dr. Blume was not authorized.  No evidence exists 
 
         that care of Dr. Myer or Anderson was ever authorized.  Payment 
 
         of costs for their care is disallowed unless the doctors are 
 
         associated with the Denison Health Clinic in which case care to 
 
         July 11, 1984 is compensable.  Payment of costs for their care is 
 
         disallowed.  Likewise, claimant testified he saw Dr. Hamsa, Dr. 
 
         Schima, and Dr. Varney on his own.  While claimant may have 
 
         benefited from their care, we find no evidence claimant attempted 
 
         to communicate his need or desire to seek that care to 
 
         defendants.  Defendants, therefore, were not able to either 
 
         permit such care or attempt to work with claimant to determine 
 
         other appropriate care.  Defendants, therefore, are not liable 
 
         for costs of care those individuals provided.  We are unable to 
 
         determine whether Dr. Joneson could appropriately refer claimant 
 
         to Dr. Bendorf.  Therefore, any costs outstanding with Dr. 
 
         Bendorf are also disallowed.
 
         
 
         
 
                               FINDINGS OF FACT
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on May 25, 1983 when injured in a 
 
         motorcycle accident while traveling at a low speed.
 
         
 
              Claimant landed on his head; claimant was unconscious for 
 
         four days following his injury but was discharged from the 
 
         hospital on the twelfth day following his injury.
 
         
 
              Claimant had injury-related slightly diminished hearing in 
 
         his right ear when compared to his left, but has no binaural 
 
         hearing handicap.
 
         
 
              Claimant has injury-related problems with balance and 
 
         dizziness which result in a 5 to 10 percent body as a whole 
 
         permanent partial impairment and which would interfere in 
 
         activities of daily living related to personal or public safety 
 
         such as riding a bicycle or driving a car, but which do not 
 
         otherwise require that claimant have assistance in performing the 
 
         normal activities of daily living.
 
         
 
              Claimant has inappropriate, spontaneous episodes of rage at 
 
         home and at work.
 
         
 
              Claimant has minimal word finding deficit as well as other 
 
         minimal cognitive difficulties.
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  24
 
         
 
         
 
         
 
              Claimant has superior intellectual ability as evidenced on 
 
         general post-injury intelligence tests.
 
         
 
              Claimant has almost daily headaches.
 
         
 
              Claimant has numerous symptoms often associated with damage 
 
         to the orbital central cortex which symptoms were not present 
 
         prior to claimant's injury.
 
         
 
              Dr'. Schimals objective observations and opinions support 
 
         Dr. Varney's opinion that claimant has damage to the orbital 
 
         central cortex.
 
         
 
              Dr. Hines' EEG demonstrates focal epileptiform abnormality 
 
         in the right frontal central area.
 
         
 
              Claimant's rage reactions are consistent with partial 
 
         complex seizures where temporal lobe problems exist.
 
         
 
              Claimant likely has partial complex seizures.
 
         
 
              A partial complex seizure disorder would also prevent 
 
         claimant from driving a motor vehicle.
 
         
 
              Claimant has psychological difficulties related to his 
 
         injury resulting in a depressed and apathic affect as well as 
 
         emotional liability and temper loss which difficulties have not 
 
         responded to treatment with antidepressant drugs and supportive 
 
         therapy.
 
         
 
              Claimant's psychological difficulties are likely in part 
 
         organic and permanent.
 
         
 
              Claimant is 31 and a high school graduate.
 
         
 
              Claimant is now employed but may be let go from his present 
 
         job.
 
         
 
              Claimant has interests and skills and intellectual 
 
         capacities which would permit retraining for other occupations.
 
         
 
              Claimant has interests and skills and intellectual 
 
         capacities which would permit him to now engage in entry level 
 
         employment beyond his present job.
 
         
 
              Claimant's earnings now exceed his earnings when injured.
 
         
 
              Claimant returned to his Denison Job Corp job and 
 
         voluntarily left that job for his present job.
 
         
 
              Claimant and his spouse are highly motivated for claimant to 
 
         remain employed.
 
         
 
              Claimant has not sought other work in Denison or its 
 
         environs.
 
         
 
              Claimant has not demonstrated that difficulties he may face 
 
         as regards transportation to work are unreasonable.
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  25
 
         
 
         
 
         
 
              Claimant's functional impairment on account of his brain 
 
         injury, probable partial complex, seizure disorder, and 
 
         psychological difficulties is severe, but does not result in 
 
         total disablement.
 
         
 
              Claimant has a loss of earning capacity of 65 percent.
 
         
 
              Dr. Taylon referred claimant to Dr. Blume, Dr. Soll and the 
 
         Denison Health Center.
 
         
 
              On July 11, 1984, defendants advised claimant through his 
 
         counsel that care from Dr. Blume, Dr. Myer, and Dr. Anderson was 
 
         not authorized.
 
         
 
              Care from Dr. Hasma, Dr. Schima, and Dr. Varney was not 
 
         authorized and was not sought in an emergency.
 
         
 
              Whether Dr. Bensdorf's care was appropriately authorized is 
 
         not determinable.
 
         
 
                               CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is entitled to permanent partial disability from 
 
         his May 25, 1983 injury of sixty-five percent (65%).
 
         
 
              Claimant is entitled to payment of medical costs with Dr. 
 
         Blume through July 11, 1984 and to payment of medical costs with 
 
         Dr. Soll and the Denison Health Clinic including care provided by 
 
         Dr. Myer and Dr. Anderson to July 11, 1984.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability for 
 
         three hundred twenty-five (325) weeks at the rate of one hundred 
 
         thirty-two and 45/100 dollars ($132.45).
 
         
 
              Defendants pay claimant costs of medical care with Dr. Blume 
 
         through July 11, 1984 and costs of medical care with Dr. Soll and 
 
         with the Denison Health Clinic including any care with the clinic 
 
         that Dr. Myer and Dr. Andrson provided to July 11, 1984.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30.
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
         
 
              Defendants file claim activity reports as required by the 
 
         agency.
 
         
 
         
 
                   Signed and filed this 28th day of May, 1987.
 

 
         
 
         
 
         
 
         ROTHE V. TRAINING & MANAGEMENT
 
         Page  26
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Colin J. McCullough
 
         Attorney at Law
 
         701 W., Main Street
 
         Sac City, Iowa 50583
 
         
 
         Mr. Gregory Barntsen
 
         Attorney at Law
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50; 4100;  1803
 
                                                 1804; 2500
 
                                                 Filed 5-28-87
 
                                                 Helen Jean  Walleser
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         RONALD W. ROTHE,
 
         
 
              Claimant,
 
                                                 File No. 735112
 
         VS.
 
         
 
         TRAINING & MANAGEMENT, INC.,/
 
                                               A R B I T R A T I 0 N
 
         d/b/a THE DENISON JOB CORPS,
 
                                                 D E C I S I 0 N
 
         
 
              Employer,
 
         and
 
         
 
         THE AETNA CASUALTY AND SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         
 
         1108.50; 4100; 1803; 1804; 2500
 
         
 
              Claimant found to have damage to the orbital central cortex 
 
         (frontal and temporal brain damage) with probable partial complex 
 
         seizures.  Claimant remained working.  While considerable 
 
         evidence suggested his current job was in jeopardy, claimant had 
 
         yet neither had to attempt to seek other work or attempt 
 
         retraining.  Likewise, claimant's neuropsychologist's "worse 
 
         case" scenario as to claimant's prognosis was rejected.  
 
         Claimant's contention that he was currently an odd-lot employee 
 
         was rejected.  Sixty-five percent permanent partial disability 
 
         awarded.
 
 
 
         
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RONALD ROTHE,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 735112
 
                      :
 
            TRAINING & MANAGEMENT, INC.,  :          R E V I E W -
 
            d/b/a THE DENISON JOB CORPS,  :
 
                      :        R E O P E N I N G
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            THE AETNA CASUALTY AND SURETY :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            statement of the case
 
            This is a proceeding in review-reopening upon claimant's 
 
            petition filed November 5, 1987.  Claimant sustained 
 
            injuries arising out of and in the course of his employment 
 
            with defendant Training & Management, Inc., d/b/a The 
 
            Denison Job Corps, on May 25, 1983 when he was thrown from a 
 
            motorcycle and suffered a head injury.  Following a hearing 
 
            on February 18, 1987, Deputy Industrial Commissioner 
 
            Helenjean Walleser filed an Arbitration Decision on May 28 
 
            of that year finding that claimant had sustained a 65 
 
            percent industrial disability to the body as a whole and 
 
            awarding benefits under the Iowa Workers' Compensation Act.  
 
            Claimant now alleges that he has suffered a deleterious 
 
            change in condition since the Arbitration Decision and seeks 
 
            additional benefits, claiming that he is now permanently and 
 
            totally disabled.  A hearing was thereafter held in Sioux 
 
            City, Iowa, on December 14, 1989.  The record consists of 
 
            joint exhibits 1 through 6 and 9 through 11 and the 
 
            testimony of claimant and his wife, Pat Rothe.
 
            issues
 
            Pursuant to the prehearing report, the following issues are 
 
            presented for resolution:  whether the work injury is 
 
            causally related to claimant's current condition of ill 
 
            being; whether claimant is entitled to additional temporary 
 
            or permanent disability benefits and the commencement date 
 
            thereof; the extent of claimant's entitlement to medical 
 
            benefits (it being stipulated that medical services 
 
            providers would testify in the absence of contrary evidence 
 
            that fees were reasonable and necessary, but the parties are 
 
            in dispute as to whether those expenses were incurred for 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            reasonable and necessary medical treatment, whether they 
 
            were causally related to the work injury or authorized by 
 
            defendants).  With respect to the extent of his permanent 
 
            disability, claimant also asserts that he is an odd-lot 
 
            employee under the theory adopted by Guyton v. Irving Jensen 
 
            Co., 373 N.W.2d 101 (Iowa 1985).
 
            findings of fact
 
            The undersigned deputy, having heard the testimony and 
 
            considered all of the evidence, finds:
 
            The earlier Arbitration Decision in this case has become 
 
            final for want of appeal and establishes that as of February 
 
            18, 1987 claimant had work injury related problems with 
 
            balance and dizziness resulting in a 5-10 percent body as a 
 
            whole impairment which interfered in certain activities such 
 
            as riding a bicycle or driving a car, but which did not 
 
            otherwise require him to have assistance in performing the 
 
            normal activities of daily life; that claimant manifested 
 
            inappropriate and spontaneous episodes of rage, both at home 
 
            and at work; that he had minimal cognitive difficulties, but 
 
            superior intellectual ability; that he suffered almost daily 
 
            headaches; claimant has symptoms associated with orbital 
 
            central cortex damage, focal epileptiform abnormality in the 
 
            right frontal central area and probably has had partial 
 
            complex seizures which would prevent him from driving a 
 
            motor vehicle.  Claimant was also found to have 
 
            psychological difficulties related to the injury resulting 
 
            in a depressed and apathetic affect, emotional lability and 
 
            temper loss.  He was employed at that time as the manager of 
 
            a retail electronics and video rental business, but his job 
 
            was in jeopardy due to deteriorating performance.  
 
            Claimant's skills, intellectual capacities and interests 
 
            qualified him for retraining and to engage in various entry 
 
            level employment beyond his current position.  Claimant and 
 
            his wife were highly motivated for him to retain employment, 
 
            but he had not sought other work in his hometown of Denison 
 
            or its environs.
 
            Unfortunately, claimant's condition has worsened since 
 
            February 18, 1987.  In approximately April, he was 
 
            discharged from his position as a retail store manager 
 
            because of the deteriorating job performance testified to by 
 
            the owner of the business, James O'Connor.  Mr. O'Connor 
 
            testified at the arbitration hearing that claimant was in 
 
            danger of losing his job due to clumsiness and subsequent 
 
            damage, that he could not keep up with his work, could not 
 
            train employees and due to rudeness, could not work with 
 
            customers at a retail level (he had at that time received 
 
            approximately six complaints of rudeness from coworkers and 
 
            customers).  Claimant misplaced items and was unable to 
 
            remember office memoranda.  O'Connor hoped that claimant 
 
            would quit the job of his own volition, but in any event 
 
            discharged him around April 1, shortly following the 
 
            arbitration hearing.
 
            Claimant has actively sought rehabilitative and job 
 
            placement services, but has failed to land employment since 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            this discharge.
 
            In July, 1987, claimant met with Phil Osborne of the Denison 
 
            Job Service office.  Phil Osborne is a vocational 
 
            rehabilitation counselor employed by the Iowa Division of 
 
            Vocational Rehabilitation Services.  Osborne referred 
 
            claimant for psychiatric consultation to Dr. Karayusuf, who 
 
            reported on August 8, 1987 that claimant's history of brain 
 
            injury suggested that his behavioral problems were a 
 
            consequence of injury to the brain and his resultant erratic 
 
            explosiveness.  Prognosis was poor.  Dr. Karayusuf opined 
 
            that claimant's history of seizures rendered him unable to 
 
            work at any job involving machinery or to work at heights 
 
            or, in fact, to operate in any task in a competitive 
 
            fashion.  Dr. Karayusuf deemed claimant unable to interact 
 
            even at a very rudimentary level with coworkers and 
 
            supervisors on any sustained basis and was at most a 
 
            candidate for very sheltered work, but only in an 
 
            environment where the staff was experienced in working with 
 
            brain-injured individuals and prepared to deal with erratic 
 
            explosive behavior.
 
            Osborne thereupon forwarded claimant's records and an 
 
            application to the Iowa State Vocational Rehabilitation 
 
            facility in Des Moines.  Peggy Davison, supervisor of 
 
            counseling and guidance for that facility, reported on 
 
            September 25, 1987 that the case file had been reviewed by 
 
            psychiatric consultant Dr. Jean Glissman, and that her 
 
            conclusions paralleled those of Dr. Karayusuf.  The only 
 
            recommendation the vocational rehabilitation facility was 
 
            "able to offer is that the client be encouraged to apply for 
 
            Social Security disability benefits on the basis that he is 
 
            unable to obtain and sustain substantial gainful employment 
 
            in the competitive market."  The case file was returned to 
 
            Osborne, who closed the file on November 9, 1987 as a 
 
            "status 08" on the basis that claimant was not able to work.  
 
            Claimant thereupon applied for and received Social Security 
 
            disability benefits.  Although claimant has continued to 
 
            seek work through Job Service of Iowa, he has never been 
 
            referred to a potential employer.
 
            Defendants subsequently sent claimant to a three-day 
 
            vocational evaluation from February 20 through February 22, 
 
            1989 by Rehabilitation Professionals, Inc.  Deborah Determan 
 
            reported on May 15, 1989 that claimant was able to work in a 
 
            contained, structured environment and to remain on tasks 
 
            that were repetitive and predictable in nature.  She 
 
            suggested that a review of the availability of services in 
 
            the Denison area be made to determine programming that might 
 
            be available with respect to a structured orthopaedic 
 
            program to improve endurance and strength and that after 
 
            claimant had an opportunity to begin participation in a 
 
            physical therapy program and counseling, a work site should 
 
            be developed and job coaching provided as needed (a "job 
 
            coach" would enter the work site, learn the required 
 
            activities to systematically approach the task and train 
 
            claimant on-site as to required job activities, along with 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            functioning as a liaison and troubleshooter to coordinate 
 
            work site activities).
 
            Claimant also underwent vocational evaluation at Goodwill 
 
            Industries Rehabilitation Center on May 22 and 24 and June 
 
            26, 1989.  Sandi Rollison, C.V.E., found that claimant had 
 
            certain vocational strengths (vision, size discrimination, 
 
            shape discrimination, color discrimination, problem solving, 
 
            visual memory, reasoning ability, talking/ persuasive, 
 
            instruction following and general educational skills) and 
 
            vocational deficits (learning new tasks, motor coordination, 
 
            fine assembly as related to finger dexterity, spatial 
 
            aptitude, form perception, work tolerance, initiative, 
 
            emotional stability, environmental restrictions and 
 
            transportation).  While finding that claimant showed 
 
            motivation to return to work, Ms. Rollison felt that in 
 
            order to accomplish that goal claimant would need to receive 
 
            vocational rehabilitation services through the state or a 
 
            private organization.  She suggested that claimant's job 
 
            tasks should be routine and would need to be over-learned, 
 
            that he should avoid stressful or unstructured work 
 
            situations and should avoid any jobs involving substantial 
 
            contact with the public.  On July 13, 1989, Ms. Rollison 
 
            added an addendum to her report as follows:
 
            (1)  It is my opinion that without rehabilitation services, 
 
            (work-adjustment program or job coach) Mr. Rothe is not 
 
            competitively employable.
 
            (2)  If Mr. Rothe is given the opportunity to participate in 
 
            vocational rehabilitation services, it would be very 
 
            difficult to predict a date when he would become 
 
            competitively employable given the factors of his injury, 
 
            residual functioning, and the amount of time passed without 
 
            rehabilitation services.
 
            Claimant and Pat Rothe testified of extensive symptomatology 
 
            at the arbitration hearing.  Both testified in this 
 
            proceeding that his condition had deteriorated substantially 
 
            since then.  In particular, Pat Rothe credibly testified 
 
            that claimant's sense of balance is much worse (especially 
 
            on stairs or while turning), that his stamina and 
 
            persistence has deteriorated, that his mental state in 
 
            general is much worse (bouts of depression up to 6-8 weeks), 
 
            loss of attention, energy and initiative, that social skills 
 
            have diminished (claimant now will sometimes not go out at 
 
            all, is much less verbal and typically does not enter into 
 
            conversation), and that fits of rage are much worse and more 
 
            frequent so as to frighten other family members (claimant 
 
            has raised his hand at and even kicked his daughter).  
 
            Claimant's headaches are now of much greater intensity; Pat 
 
            Rothe recognizes these when claimant puts himself "in a box" 
 
            and will not allow himself to be touched.  Whereas claimant 
 
            was able to function in his normal daily life prior to the 
 
            arbitration hearing, he now cannot.  He takes five or six 
 
            psychoactive medications each day pursuant to a list 
 
            prepared by Pat Rothe (who also programs claimant's alarm 
 
            wrist watch so that he can follow the list).  Claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            testified that he now finds it difficult to even follow 
 
            general conversation due to his inability to concentrate.  
 
            Although he likes to socialize, he finds it more and more 
 
            difficult to initiate communication with others.
 
            Claimant has been evaluated by a number of psychiatric and 
 
            psychological practitioners since the previous arbitration 
 
            hearing.  Nils Varney, Ph.D., a licensed psychologist, wrote 
 
            on October 11, 1987 that claimant was losing ground as 
 
            compared to 16 months before and that his IQ had dropped 
 
            from 136 to 125 (a decline outside the range of normal 
 
            day-to-day variation).  Dr. Varney had considered claimant 
 
            essentially incapable of employment before the arbitration 
 
            hearing.
 
            Claimant was also evaluated by R. L. Bendixen, M.D., in 
 
            September, 1987.  Dr. Bendixen's impression was of impaired 
 
            mental functioning and equilibrium secondary to head trauma 
 
            and recurrent frequent and severe headaches.  He opined that 
 
            claimant was "legitimately disabled because of his residual 
 
            of head injury" and doubted that he would be able to find 
 
            any useful form of employment.
 
            On November 9, 1987, neurologist David Friedgood, D.O., 
 
            wrote for purposes of Social Security disability 
 
            determination that claimant's history of increasing problem 
 
            with seizures was quite unusual for a seizure disorder, but 
 
            that claimant had a secondary depression which he was 
 
            certain contributed to his disability.  He reported that 
 
            claimant found himself unable to function in a reasonable 
 
            fashion or to keep a job.
 
            A Social Security disability evaluation was also performed 
 
            by Vicky L. Moody, D.O., a psychiatrist.  She concluded that 
 
            claimant intermittently had the ability to maintain 
 
            attention required to perform simple repetitive tasks, but 
 
            it was doubtful that he could do this consistently.  "I also 
 
            do not believe that the patient is probably capable of 
 
            withstanding the stress and pressures in a competitive job 
 
            situation given his fluctuations in the ability of function.  
 
            His history is consistent with problems even in a situation 
 
            with a very understanding and supportive boss."
 
            On the other hand, neurologist Ignacio Rodriguez, M.D., 
 
            wrote on November 2, 1989 that claimant had not experienced 
 
            any worsening in his medical condition in the past three 
 
            years and that in all medical likelihood, did not suffer 
 
            from a seizure disorder.  Dr. Rodriguez believed that 
 
            claimant's current performance was artificially hampered by 
 
            the administration of unnecessary medications.  Dr. 
 
            Rodriguez has never met claimant, but prepared a 
 
            comprehensive report based on his review of medical records 
 
            in the case (which are voluminous).  He anticipated that 
 
            claimant would see significant clinical improvement and a 
 
            return to a functional state once his medication regimen was 
 
            simplified.  Professor of Neurology Thoru Yamada, M.D., of 
 
            the University of Iowa Hospitals and Clinics, concurred with 
 
            Dr. Rodriguez's opinion and believed that 
 
            electro-encephalogram testing did not show true epileptiform 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            activity.
 
            Claimant's primary treating physician is Marc E. Hines, M.D.  
 
            On January 23, 1987, just prior to the arbitration hearing, 
 
            Dr. Hines wrote that although claimant was (then) able to 
 
            work, he was doing that at great personal cost to himself 
 
            and that his thinking was impaired, interrupting his work 
 
            during periods of the day and sometimes for days at a time.  
 
            He thought then that it might not be possible for Mr. Rothe 
 
            to continue in his current employment.  While chart notes 
 
            reflect that Dr. Hines has continued to treat and prescribe 
 
            for claimant, the record does not indicate any more recent 
 
            opinion as to medical limitations.
 
            Exhibit 10 sets forth certain medical costs and mileage, all 
 
            of which is directly related to residual effects of the work 
 
            injury.
 
            conclusions of law
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787, 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consol. Indus. Coal Co., 228 
 
            Iowa 1031, 291 N.W.2d 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 
 
            1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            Although there is greatly conflicting evidence in this 
 
            record, claimant has shown more than a mere difference of 
 
            opinion of experts as to the degree of his disability.  He 
 
            has established a substantial worsening of his condition not 
 
            contemplated at the time of the first award.  In this case, 
 
            the change is both economic and medical.  The testimony of 
 
            claimant, and especially that of his wife, establishes that 
 
            his ability to function on a day-to-day basis has 
 
            dramatically declined even from the diminished level that 
 
            existed on February 18, 1987.  Although it was perhaps 
 
            foreseeable that claimant might lose his job as the manager 
 
            of a video rental outlet at the time of the hearing, it is 
 
            nonetheless true that he was employed at that time, and at a 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            higher wage than was the case when he was injured.  Now, 
 
            claimant has lost that job through a deterioration in his 
 
            job performance and finds himself unable to obtain job 
 
            referrals or even rehabilitation assistance from Job Service 
 
            of Iowa or the Iowa Division of Rehabilitative Services.  
 
            Claimant is motivated to work, but his depression, lack of 
 
            ability to concentrate, forgetfulness, clumsiness, moodiness 
 
            and inability to withstand stress all conspire to render him 
 
            incapable of holding regular employment.  The more 
 
            persuasive medical evidence is that claimant is unable to 
 
            return to any remunerative employment other than, perhaps, 
 
            the most sheltered and repetitive work.
 
            Defendants are of the view that claimant's disability is in 
 
            large part caused by a misdiagnosis and resultant 
 
            mismedication.  Given the conflicting evidence in this 
 
            record, this writer is unwilling to gamble with claimant's 
 
            life by ordering a change of medical care.  Permanent 
 
            disability does not necessarily require proof of absolute 
 
            perpetuity, but is a disability that lasts for an indefinite 
 
            and indeterminable period.  Wallace v. Brotherhood, 230 Iowa 
 
            1127, 300 N.W. 322 (1941).  If at some later time claimant's 
 
            physicians elect a change in medication that proves 
 
            salutary, claimant's motivation and intelligence (and that 
 
            of his wife) is such as to no doubt inspire him to a return 
 
            to productive employment.  Review-reopening may then be 
 
            available upon defendants' petition.  However, on the 
 
            current state of the record, it must be held that there is 
 
            no foreseeable likelihood that claimant will be able to 
 
            obtain or keep any steady and remunerative employment.  He 
 
            is permanently and totally disabled.  Permanent total 
 
            disability benefits shall be payable from the expiration of 
 
            the permanent partial disability benefits awarded in the 
 
            original Arbitration Decision.
 
            Defendants shall also pay medical expenses set forth in 
 
            exhibit 10.
 
            order
 
            THEREFORE, IT IS ORDERED:
 
            Defendants shall pay unto claimant permanent total 
 
            disability benefits from the expiration of permanent partial 
 
            disability benefits ordered in the arbitration decision 
 
            dated May 28, 1987 at the stipulated rate of one hundred 
 
            thirty-two and 45/100 dollars ($132.45) per week and 
 
            continuing during such time as claimant remains permanently 
 
            and totally disabled.
 
            Defendants shall pay medical bills totalling four thousand 
 
            seven hundred sixty-three and 17/100 dollars ($4,763.17) as 
 
            set forth in exhibit 10 and mileage expenses totalling three 
 
            hundred fifty-one and 54/100 dollars ($351.54) (one thousand 
 
            six hundred seventy-four (1,674) miles at twenty-one cents 
 
            ($.21) per mile).
 
            All accrued benefits shall be paid in a lump sum together 
 
            with statutory interest thereon pursuant to Iowa Code 
 
            section 85.30.
 
            The costs of this action shall be assessed to defendants 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            pursuant to 343 IAC 4.33.
 
            Defendants shall file claim activity reports as requested by 
 
            this agency pursuant to 343 IAC 3.1.
 
            Signed and filed this ______ day of ____________, 1990.
 
            
 
            
 
                 
 
                                          ______________________________
 
                                          DAVID RASEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Colin J. McCullough
 
            Attorney at Law
 
            701 West Main Street
 
            Sac City, Iowa  50583
 
            
 
            Mr. Thomas M. Plaza
 
            Attorney at Law
 
            200 Home Federal Building
 
            P.O. Box 3086
 
            Sioux City, Iowa  51102
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1804
 
                           Filed December 6, 1990
 
                           DAVID RASEY
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            RONALD ROTHE,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :         File No. 735112
 
                      :
 
            TRAINING & MANAGEMENT, INC.,  :          R E V I E W -
 
            d/b/a THE DENISON JOB CORPS,  :
 
                      :        R E O P E N I N G
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            THE AETNA CASUALTY AND SURETY :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1804
 
            In review-reopening, head injured claimant was found 
 
            permanently and totally disabled based on medical and 
 
            vocational rehabilitation evidence that he was unable to 
 
            hold regular competitive employment due to depression, lack 
 
            of ability to concentrate, forgetfulness, clumsiness, 
 
            moodiness and inability to withstand stress.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JAMES T. HOSKINS,
 
         
 
              Claimant,
 
                                                  FILE NOS. 735118 & 
 
                                                            792721
 
         
 
         VS.
 
                                                   A R B I T R A T I 0 N
 
         
 
         CATERPILLAR TRACTOR CO.,                      D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by James T. 
 
         Hoskins, claimant, against Caterpillar Tractor Company, employer 
 
         and self-insured defendant, for benefits as a result of an injury 
 
         which occurred on May 27, 1983 and an injury which occurred on 
 
         August 23, 1983.  A hearing was held in Davenport, Iowa on 
 
         January 8, 1987 and the case was fully submitted at the close of 
 
         the hearing.  The record consists of the testimony of James T. 
 
         Hoskins (claimant), claimant's exhibits 1 through 18 and 
 
         defendant's exhibits A through KK.  Both parties were requested 
 
         to file a brief but neither party filed a brief.  Claimant, 
 
         however, did provide a transcript of the hearing on his own 
 
         volition.
 
         
 
                                 DATE CORRECTION
 
         
 
              Although the petition on claim file 792721 alleges an injury 
 
         date of August 25, 1983, the parties agreed at the hearing that 
 
         this injury date was probably August 23, 1983 based upon the 
 
         testimony of claimant.  Therefore, that date will be used as the 
 
         injury date on file number 792721 instead of August 25, 1983.
 
         
 
                                PRELIMINARY MATTER
 
         
 
              Defendant objected to claimant's exhibit 16 for the reason 
 
         that it was not timely served as provided in the hearing 
 
         assignment order.  Paragraph six of the hearing assignment order 
 
         provides that all written exhibits not previously served shall be 
 
         served upon opposing parties no later than 30 days following the 
 
         signing and filing of this order.  The order was signed and filed 
 
         July 21, 1986.  Thirty days later would be August 20, 1986.  The 
 
         case was originally scheduled to be heard on October 23, 1986.  
 
         However, on motion of defendant which was not resisted, the 
 
         hearing was continued until January 8, 1987.  Claimant's exhibit 
 
         16 is a written letter from a doctor dated December 4,
 
         1986.  It was served on defendant a few days later and within 
 
         the 10 day rule of Division of Industrial Services Rule 
 
         343-4.17. Defendant's counsel asserted prejudice.  He contended 
 

 
         
 
         
 
         
 
         HOSKINS V. CATERPILLAR TRACTOR CO.
 
         Page   2
 
         
 
         
 
         that he relied on this rule to exclude this document.  
 
         Otherwise he probably would have deposed this doctor prior to 
 
         the hearing (Transcript, page 17).  Since: (1) the letter was 
 
         not even generated until more than three months after the 
 
         August 20, 1986 deadline; (2) since defendant only received the 
 
         exhibit approximately 30 days prior to the hearing; and, (3) 
 
         since this 30 day period covered the Christmas and New Year 
 
         holiday seasons, then defendant's objection is sustained.  
 
         Claimant's exhibit 16 is excluded from evidence, but remains in 
 
         the file as an offer of proof.
 
         STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between 
 
         claimant and employer at the time of the alleged injuries.
 
         
 
              That claimant sustained an injury on May 27, 1983 which 
 
         arose out of and in the course of his employment with employer.
 
         
 
              That the tunes off work for which claimant now seeks either 
 
         temporary total disability or healing period benefits are May 31, 
 
         1983 to June 8, 1983; June 16, 1983 to July 3, 1983; and, August 
 
         23, 1983 to September 18, 1983.
 
         
 
              That the rate of weekly compensation in the event of an 
 
         award of weekly benefits is $304.14 per week.
 
         
 
              That all requested medical benefits have been or will be 
 
         paid.
 
         
 
              That defendant is entitled to a credit under Iowa Code 
 
         section 85.38(2) for disability income benefits paid under an 
 
         employee non-occupational group plan for 23 weeks and four days 
 
         in the total amount of $5,300.00
 
         
 
              That defendant is entitled to a credit for workers' 
 
         compensation benefits previously paid for seven and six-sevenths 
 
         weeks of compensation at the rate of $304.14 for the three 
 
         periods of time off work stipulated to above.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on August 23, 1983
 
         
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              Whether the injury of May 27, 1983 and the alleged injury of 
 
         August 23, 1983 were the cause of either temporary or permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to temporary or permanent 
 

 
         
 
         
 
         
 
         HOSKINS V. CATERPILLAR TRACTOR CO.
 
         Page   3
 
         
 
         
 
         disability benefits and, if so, the nature and extent of 
 
         benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence:
 
         
 
              Claimant is approximately 32 years old.  He graduated from 
 
         high school.  In prior employment he worked three and one-half 
 
         years as a machine operator and as a lead man.  Then he started 
 
         to work for employer in 1972 as a mill operator.  About a year 
 
         later he became a tape machine operator and has done that job for 
 
         approximately 13 years.
 
         
 
              After swimming and diving extensively on Saturday, August 7, 
 
         1982, claimant experienced low back pain on Sunday, August 8, 
 
         1982.  It worsened to the point where he was unable to stand or 
 
         walk because of pain and he went to the hospital on Monday, 
 
         August 9, 1982.  Claimant denied striking anything while diving 
 
         and he denied any radicular pain.  The emergency room nurse noted 
 
         that the pain did not radiate (Exhibit 3).  X-rays showed no 
 
         abnormalities (Ex. 10).  Claimant was admitted to the hospital on 
 
         August 9, 1982 with a diagnosis of severe low back pain (Ex. 3).  
 
         Michael Gimbel, M.D., examined claimant throughly and his 
 
         neurologic and orthopedic examination was essentially normal.  
 
         Dr. Gimbel diagnosed probable bilateral paraspinous muscle spasm 
 
         and strain.  He said he doubted that there was herniated 
 
         intervertebral disc disease (Ex. 5).  After medication and 
 
         physical therapy claimant was discharged by his personal 
 
         physician, William McCabe, M.D., six days later on August 15, 
 
         1982, significantly improved, with a final diagnosis of acute 
 
         traumatic lumbar myocitis (Ex. 4).
 
         
 
              Claimant testified that he returned to work with no 
 
         restrictions and worked approximately five weeks.  Then the plant 
 
         was out on strike for about seven and one-half months which would 
 
         be approximately from October of 1982 until May of 1983.  During 
 
         the strike claimant did remodeling work and put on a roof with a 
 
         friend (Tr., pp. 38-41) .
 
         
 
              Then on May 27, 1983, shortly after returning to work, 
 
         claimant was bending over and was lifting a 30 pound part out of 
 
         a tub when he felt a sharp pain in his lower back.  He had never 
 
         experienced a pain like this before (Tr., pp. 41 & 42).  Claimant 
 
         reported this and he was seen by J. Donahue, M.D., the in-house 
 
         plant physician who treated all employees for both occupational 
 
         and non-occupational medical problems as an employee fringe 
 
         benefit.
 
         
 
              Dr. Donahue's clinical notes mention two prior incidents 
 
         before the injury of May 27, 1983.  Back on February 18, 1977, 
 
         claimant reported that he was standing at his machine using a 
 
         hoist, not lifting, and felt a sudden pain in his left back.  
 
         There was no history of trauma, slip or twist.  In the margin is 
 
         the notation "doubt occupational relation.O  Dr. Donahue also 
 
         noted the non-occupational diving incident by a note dated August 
 
         30, 1982.  He noted that claimant could do no lifting or pushing 
 
         after that incident.  Then on May 27, 1983, Dr.  Donahue recorded 
 

 
         
 
         
 
         
 
         HOSKINS V. CATERPILLAR TRACTOR CO.
 
         Page   4
 
         
 
         
 
         that claimant encountered left lumbar muscle spasm and backache 
 
         while running a radial drill (Ex. B, p. 1).  This injury is file 
 
         number 735118.
 
         
 
              Claimant was off work from May 31, 1983 to June 8, 1983 and 
 
         again from June 16, 1983 to July 3, 1983 as a result of this 
 
         injury.  These dates were stipulated to by the parties in the 
 
         stipulations.  During the same period claimant was also 
 
         complaining of chest pain under his ribs.  Dr. Donahue commented 
 
         that claimant appeared anxious and manifested anxiety symptoms 
 
         (Ex. B, p. 2).
 
         
 
              Claimant testified that on August 23, 1983, he was running a 
 
         tape machine.  He was putting a 30 to 40 pound steel part called 
 
         a swinglink into an inspection fixture.  He felt a sharp pain in 
 
         his lower back and his back just gave out.  This injury is file 
 
         number 792721.  This pain was more severe than the May 27, 1982 
 
         pain because it was harder for him to walk (Tr., pp. 45 & 46). 
 
         Claimant testified that he also had pain and numbness in his left 
 
         leg for the first time after this injury (Tr., p. 82).  Dr. 
 
         Donahue made a notation of seeing claimant for this incident but 
 
         his note is dated August 22, 1983.  The company doctor recorded 
 
         that claimant was lifting which resulted in acute spasm on the 
 
         right side in the lumbosacral area.  Dr. Donahue did not mention 
 
         any left leg radicular pain.  However, on August 29, 1987, Dr. 
 
         Donahue wrote that claimant was still tender in the lumbosacral 
 
         area and he sent claimant to see John E. Sinning, M.D., for an 
 
         orthopedic consultation (Ex. B, p. 3).
 
         
 
              Dr. Sinning reported that he saw claimant on August 29, 
 
         1983. Claimant was concerned about why this happened to him and 
 
         whether the August 23, 1983 incident was related to the May 27, 
 
         1983 incident and the diving incident on August 7, 1982.  
 
         Claimant's physical examination revealed tenderness at the 
 
         lumbosacral and sacroiliac levels.  Claimant had difficulty 
 
         straightening up after flexion and hyperextension hurt him.  Five 
 
         x-rays of the lumbosacral spine showed no abnormalities, normal 
 
         disc space relationships, no hypertrophic changes, and no 
 
         developmental abnormalities.  Dr. SinningOs stated diagnosis was 
 
         hyperextension back strain.  He added that he told claimant he 
 
         had muscle strain and expected a full recovery in the next month.  
 
         He expected no more recurrence.  He thought the last incident of 
 
         August 23, 1983 was happenstance.  Dr. Sinning prescribed an 
 
         exercise program under the direction of Dr. Donahue (Ex. 17, EE & 
 
         FF).
 
         
 
              Claimant was off work from August 23, 1983 to September 18, 
 
         1983 as shown in the stipulations.  He worked then from September 
 
         19, 1983 to September 23, 1983.  Then on the weekend of September 
 
         24, 1983 and September 25, 1983 he was home playing cards and 
 
         encountered all kinds of pain in his back.  He saw Dr. Donahue on 
 
         Monday, September 26, 1983.  Dr. Donahue commented that 
 
         claimant's back had tightened up Saturday evening while sitting 
 
         in a chair playing cards; however, claimant had no known injury 
 
         that day.  This time the discomfort was on the left side.  Dr. 
 
         Donahue continued to diagnose muscle spasm and anxiety (Ex. B, p. 
 
         4).
 
         
 
              Dr. McCabe ordered a CT scan performed on September 29, 1983 
 

 
         
 
         
 
         
 
         HOSKINS V. CATERPILLAR TRACTOR CO.
 
         Page   5
 
         
 
         
 
         (Ex. 6).  E. L. Johnson, M.D., reported that he examined the CT 
 
         scan of claimant's lumbar spine which was taken on account of 
 
         back pain.  He found a hypertrophic spur extending cephalad and 
 
         posteriorly from the body of S-1 impinging on the left nerve root 
 
         of S-1 (Ex. 7).
 
         
 
              Dr. McCabe then referred claimant to Henry Honda, M.D., a 
 
         neurosurgeon (Tr., pp. 51 & 52).  Dr. Honda examined claimant on 
 
         October 10, 1983.  He admitted claimant for a myelogram on 
 
         October 12, 1983 (Ex. Q).  Dr. Honda reported that the myelogram 
 
         was essentially negative, but comparing the CT scan he did expect 
 
         a disc.  Cross-wise the disc seemed located in the axilla of the 
 
         nerve root (Ex. 11).  A second CT scan, this one performed by Dr. 
 
         Honda, confirmed a large enough disc to complicate his back pain 
 
         and occasional left leg pain (Ex. R).
 
         
 
              On October 14, 1983, Dr. Honda performed a hemilaminectomy 
 
         of L-5 on the left side.  He found a large bulging disc which was 
 
         calcified compressing the nerve roots anteriorly and medially.  
 
         He excised and removed this hard bulging disc material 
 
         eliminating the pressure on the nerve root (Ex. 12).  Claimant 
 
         was released to return to work on January 23, 1984 with 
 
         restrictions not to lift more than 40 pounds and to avoid 
 
         excessive bending and stretching (Ex. U, V & W).  On January 18, 
 
         1984, Dr. Honda wrote:
 
         
 
                 The patient claims that he incurred his back injury at 
 
              work and went to the Medical Department three or four times 
 
              and this is well-documented in the records and was 
 
              considered as compensation.  If there is record that he had 
 
              an injury, I am sure we will have to depend on that and he 
 
              most likely injured his back at work which then will be 
 
              compensation. (Ex. U).
 
         
 
              Dr. Honda again examined and evaluated claimant for an 
 
         impairment rating on December 1, 1986 at the request of 
 
         claimant's counsel.  Claimant had no loss of range of motion, no 
 
         weakness, no loss of sensation and no pain.  Dr. Honda concluded 
 
         by saying that claimant was doing extremely well at his current 
 
         job.  He said it was difficult to award a percentage of 
 
         impairment and did not give a percentage impairment rating (Ex. 
 
         14).  As an addendum to this report he added the following:
 
         
 
              This patient apparently had a diving accident in August of 
 
              1982.  The patient developed back pain but apparently got 
 
              better.  In May of 1983 he was injured at work and again 
 
              aggravated the condition in August of 1983.  It is possible 
 
              that the work injury aggravated his condition which would 
 
              lead to laminectomy and excision of disc.  The patient had 
 
              excellent results and he has no problems since the surgery 
 
              and returned to work.  He should not lift heavy objects.
 
              (Ex. 15).
 
         
 
              Claimant testified that even though the parts that he was 
 
         handling at the time of his two injuries were not heavy, he did 
 
         move larger parts up to 1,500 pounds with a hoist.  These were 
 
         hard to push even with the hoist (Tr., p. 56) and it bothered him 
 
         to push them around (Tr., pp. 57, 62 & 63).  Claimant testified 
 
         that he did not apply for higher paying jobs of $.30 per hour 
 

 
         
 
         
 
         
 
         HOSKINS V. CATERPILLAR TRACTOR CO.
 
         Page   6
 
         
 
         
 
         more because of his lifting restrictions (Tr., p. 58).  Claimant 
 
         said he could do about the same things after the surgery as 
 
         before the surgery, but he gets tired easier at work and he has 
 
         to schedule less activities on his duties at home (Tr., pp. 
 
         59-61, 63-65).  However, he had to reduce his athletic activities 
 
         of racketball and softball (Tr., pp. 60 & 65).
 
         
 
              Claimant testified that he thought he injured his back on 
 
         the job but he had some doubts about it (Tr., pp. 92, 93, 98 & 
 
         114).  Claimant completed and signed a weekly disability benefits 
 
         form (Ex.  KK) on October 11, 1983 which stated that he had been 
 
         disabled because of sickness or injury off and on since May 27, 
 
         1983 and had returned to work three times.  In reply to question 
 
         6, "was an accidental injury involved" claimant answered, 
 
         "maybe".  In providing the date and place of accident claimant 
 
         entered, "May 27, 1983" and "Caterpillar (maybe)."  In answer to 
 
         question 6d, "did accident happen while you were on the job at 
 
         Caterpillar" claimant printed, "maybe."  Claimant printed in the 
 
         following words with his own hand on the form, "I'm not sure if 
 
         work related!" (Ex. KK).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of 
 
         the, evidence that lie received an injury on August 23, 1983 
 
         which arose out of and in the course of his 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 May 27, 1983 and August 23, 1983 
 
         are causally related to the disability on which he now bases his 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1966). Lindahl v. L. 0  Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility 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.2d 756, 760-761 
 
         (1956). If the claimant had a preexisting contrition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 

 
         
 
         
 
         
 
         HOSKINS V. CATERPILLAR TRACTOR CO.
 
         Page   7
 
         
 
         
 
         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).
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained an injury on August 23, 1983.  
 
         Claimant testified that he felt a sharp pain in his back and his 
 
         back just gave out when he was putting a 30 to 40 pound steel 
 
         part called a swinglink into an inspection fixture.  Dr. Donahue 
 
         recorded an office visit on August 22, 1983 in which he reported 
 
         that claimant was lifting and experienced acute back spasm on the 
 
         right side.  Claimant could have been in error one day when he 
 
         said the injury occurred on August 23, 1983.  Claimant had a 
 
         great deal of difficulty recollecting many facts accurately and 
 
         defense counsel demonstrated that claimant's recollection was 
 
         incorrect on a number of points.  It is also possible that the 
 
         doctor's notes could be in error by one day.  In any event the 
 
         attorneys were satisfied to treat the injury date as August 23, 
 
         1983 in their questioning of the witness.  Furthermore, there is 
 
         no evidence that claimant did not receive such an injury as he 
 
         described on or about this date.  Therefore, claimant's testimony 
 
         is uncontroverted.  Moreover, it is corroborated by Dr. Donahue 
 
         and Dr. Sinning who also saw claimant for this injury.  
 
         Therefore, it is found that claimant did receive an injury which 
 
         arose out of and in the course of his employment with employer on 
 
         August 23 , 1983.
 
         
 
              It was stipulated that claimant was temporarily disabled 
 

 
         
 
         
 
         
 
         HOSKINS V. CATERPILLAR TRACTOR CO.
 
         Page   8
 
         
 
         
 
         from August 23, 1983 to September 18, 1983.  Therefore, claimant 
 
         is entitled to and was paid temporary disability benefits for 
 
         this period of time prior to hearing.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that either the injury of May 27, 
 
         1983 or the injury of August 23, 1983 was the cause of any 
 
         permanent disability.  Nor did claimant sustain the burden 
 
         of.proof by a preponderance of the evidence that either injury 
 
         was the cause of his laminectomy that was performed by Dr. Honda 
 
         on October 14, 1983.
 
         
 
              Claimant was treated by four doctors.  There was no evidence 
 
         from his personal physician, Dr. McCabe, that either of these two 
 
         injuries caused or aggravated the hypertrophic spur that impinged 
 
         on the left nerve root (Ex. 7) or the bulging calcified disc that 
 
         was compressing his nerve roots (Ex. 12) that resulted in the 
 
         laminectomy.  There is no evidence from Dr. Donahue (the plant 
 
         physician and also a personal physician who treated claimant for 
 
         both of these injuries) that either one of them caused or 
 
         aggravated the spur or calcified disc that predisposed the 
 
         laminectomy.  There is no evidence from Dr. Sinning, the 
 
         orthopedic surgeon, that claimant's work caused or aggravated any 
 
         permanent disability or resulted in his laminectomy.  On the 
 
         contrary the records of Dr. Donahue (Ex.  B) and Dr. Sinning (Ex. 
 
         17) indicated that they treated a back strain with some anxiety 
 
         overlay.  Dr. McCabe did not give any diagnosis for either one of 
 
         these injuries, but instead referred claimant to Dr. Honda.  Dr. 
 
         Honda declined to give his own personal, individual, 
 
         professional, medical opinion on causation on January 18, 1984.  
 
         Rather he deferred this decision to what the employer's records 
 
         would show (Ex. U).  When confronted for an opinion on causal 
 
         connection by claimant's counsel on December 1, 1986, Dr. Honda 
 
         added an addenda to his report which stated as follows: "It is 
 
         possible that the work injury aggravated his condition which 
 
         would lead to laminectomy and excision of disc" (Ex. 15).  In 
 
         considering the evidence, it is recognized that spur formation 
 
         and calcification of a disc are conditions which develop over a 
 
         period much longer than a few weeks or months.  Section 
 
         17A.14(5).
 
         
 
              As stated previously 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).  
 
         Three of the possible expert witnesses gave no opinion whatsoever 
 
         on causal connection.  The only doctor who gave an opinion said 
 
         only that a causal connection was possible.  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  
 
         However, the Burt case also stands for the proposition that 
 
         causal connection can be established when a medical expert states 
 
         that a causal connection is possible and when all of the other 
 
         evidence in the case is considered, the other facts and 
 
         inferences support such a conclusion.  In this case the only 
 
         oilier possible witness on the subject of causal connection was 
 
         claimant himself and he testified that he had some doubts about 
 
         it himself (Tr., pp. 92, 93, 98 & 114).  In fact, when he filled 
 
         out a claim form for disability income payments he wrote in his 
 
         own hand and apparently of his own volition, 'I'm not sure if 
 

 
         
 
         
 
         
 
         HOSKINS V. CATERPILLAR TRACTOR CO.
 
         Page   9
 
         
 
         
 
         work related!" (Ex. KK).  Therefore, based upon the absence of 
 
         medical evidence to establish a causal connection and the 
 
         claimant's own doubts about a causal connection which he 
 
         expressed in his testimony at hearing as well as on the claim 
 
         form it must be found that claimant failed to sustain the burden 
 
         of proof by a preponderance of the evidence that either injury 
 
         was the cause of any permanent disability or the laminectomy.
 
         
 
              The question of entitlement then is moot.  However, it is 
 
         noted that when claimant was sent to Dr. Honda for an impairment 
 
         rating, Dr. Honda could not find enough impairment to award 
 
         claimant a numerical rating (Ex. 14).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based on the foregoing evidence the following 
 
         findings of fact are made:
 
         
 
              That claimant sustained an injury on August 23, 1983 when he 
 
         lifted a 30 to 40 pound steel part called a swinglink into an 
 
         inspection fixture and experienced pain in his back.
 
         
 
              That this injury was the cause of temporary disability from 
 
         August 23, 1983 to September 18, 1983 as stipulated and that 
 
         claimant has been paid worker's compensation benefits for this 
 
         period of temporary disability.
 
         
 
              That Dr. McCabe, Dr. Donahue and Dr. Sinning gave no opinion 
 
         on causal connection of either injury to any permanent disability 
 
         or the laminectomy.
 
         
 
              The injury was a temporary aggravation of a preexisting 
 
         condition.
 
         
 
              That Dr. Honda said it was possible that the work injury or 
 
         injuries aggravated his condition which would have led to a 
 
         laminectomy.
 
         
 
              That claimant testified that he had doubts about whether his 
 
         job related back injuries were the cause of his laminectomy.
 
         
 
              That claimant stated when he applied for income disability 
 
         benefits on account of the laminectomy "I'm not sure if work 
 
         related!".
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed, the following conclusions 
 
         of law are made:
 
         
 
              That claimant sustained an injury on August 23, 1983, that 
 
         arose out of and in the course of his employment with employer.
 
         
 
              That claimant is not entitled to any additional temporary 
 
         disability benefits for this injury.
 
         
 
              That claimant did not prove that the injury of May 27, 1983 
 
         or the injury of August 23, 1983 was the cause of his laminectomy 
 

 
         
 
         
 
         
 
         HOSKINS V. CATERPILLAR TRACTOR CO.
 
         Page  10
 
         
 
         
 
         or of any permanent disability.
 
         
 
              That claimant is not entitled to any permanent disability 
 
         benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED that no further payments are due to 
 
         claimant from defendant as a result of either of these injuries.
 
         
 
              That each party pay their own respective costs of this 
 
         proceeding and defendant is to pay the cost of the attendance of 
 
         the court reporter at the hearing pursuant to Division of 
 
         Industrial Services Rule 343-4.33(l).
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
              Signed and filed this 26th day of October, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 East 6th Street
 
         Davenport, Iowa 52805
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         Davenport, Iowa 52801
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1106; 1108.50; 1402.20 
 
                                                  1402.30; 1402.40; 1803 
 
                                                  Filed October 26, 1987 
 
                                                  WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         JAMES T. HOSKINS,
 
         
 
              Claimant,
 
                                                 FILE NOS. 735118 & 
 
                                                           792721
 
         VS.
 
                                                   A R B I T R A T I 0 N
 
         CATERPILLAR TRACTOR CO.,
 
                                                       D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
         1106; 1108.50; 1402.20; 1402.30; 1402.40; 1803
 
         
 
              Lifting a 30 to 40 pound part at work that caused a back 
 
         strain was found to be an injury arising out of and in the course 
 
         of employment that caused temporary disability only for which 
 
         claimant had already received benefits prior to hearing.  This 
 
         strain, and an earlier strain, were found not to be the cause of 
 
         any permanent disability or the cause of a subsequent 
 
         laminectomy.  Claimant had a history of chronic back problems 
 
         that flared up unpredictably both at work and away from work for 
 
         some time.  Claimant testified and wrote on a claim form that he 
 
         had his own doubts whether it was caused by work or not.  No 
 
         doctor gave claimant a numerical impairment rating and the 
 
         surgeon said he had no loss of motion, strength, or sensation and 
 
         that he had no residual pain.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         CLIFFORD L. CURRENT,
 
         
 
              Claimant,
 
                                                   File No. 735375
 
         vs.
 
         
 
         ARMSTRONG RUBBER 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.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Clifford L. 
 
         Current, claimant, against Armstrong Rubber Company, employer, 
 
         and Travelers Insurance Company, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained March 22, 1983.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner 
 
         April 8, 1988.  The record was considered fully submitted at the 
 
         close of the hearing.  The record in this case consists of the 
 
         testimony of the claimant, Jack Salsbury, and Robert Wentzel; 
 
         claimant's exhibits 1, 2 and 3; and defendants, exhibits A and 
 
         B.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved April 8, 1988, the following issues are presented for 
 
         determination:
 
         
 
              1 . The extent of claimant's entitlement to permanent 
 
         partial disability benefits stipulated to be an industrial 
 
         disability to the body as a whole;
 
         
 
              2. Whether the injury is causally connected to the 
 
         disability on which claimant bases his claim.  (Concisely stated, 
 
         the parties agreed claimant's injury caused his cervical surgery 
 
         but dispute whether the same injury caused the rotator cuff 
 
         repair surgery.)
 
         
 
                                 FACTS PRESENTED
 
         
 
              It should be noted at the outset that claimant appeared to 
 
         have very little independent recall of the incidents and events 
 
         surrounding his injury and subsequent treatment.  Claimant 
 
         essentially responded to his counsel's leading questions and 
 

 
         testified as to the content of the exhibits he offered at 
 
         hearing.
 
         
 
               Claimant sustained an injury on March 22, 1983 which 
 
         arose out of and in the course of his employment when he 
 
         "pulled something" in his "right shoulder and neck pulling a 
 
         stuck breaker."  Claimant recalled complaining to the company 
 
         nurse that he hurt his shoulder and telling her he "tore" 
 
         something in his shoulder.  The medical department treatment 
 
         record shows "Rt. shoulder strain? Good range of motion."  
 
         Claimant did not seek medical care from a physician until March 
 
         25, 1983 at which time he was placed on light duty by the 
 
         company doctor.  Claimant has not, since that time, returned to 
 
         his regular job of tire building.. Claimant eventually came 
 
         under the care of Robert Hayne, M.D., in April 1983, who 
 
         prescribed medication and extra rest periods for claimant 
 
         during the course of his work day.  On April 18, 1983, claimant 
 
         underwent a CT scan and in June 1983, a myelogram which 
 
         resulted in cervical surgery in July 1983.  Claimant 
 
         anticipated returning to work in October 1983 and testified 
 
         that on or about September 16, 1983, he slipped going down to 
 
         the basement falling onto a concrete floor.  Claimant expressed 
 
         his belief that this incident,was not major and that it did not 
 
         slow down his recovery from his cervical surgery.  Claimant 
 
         explained that he continued to complain of shoulder pain to Dr. 
 
         Hayne and was referred to Joe F. Fellows, M.D., who eventually 
 
         repaired a tear of the rotator cuff of the right shoulder.  
 
         Claimant acknowledged a previous history of problems with his 
 
         left shoulder but denies any right shoulder problems prior to 
 
         March 1983.  Claimant was released to return to work in 
 
         September 1984 with restrictions of not lifting more than 20 
 
         pounds, limited use of the right arm, and no reaching or 
 
         pulling over 20 pounds with the right arm.  These restrictions 
 
         prohibited claimant from returning to work as a tire builder 
 

 
         
 
         
 
         
 
         CURRENT V. ARMSTRONG RUBBER COMPANY
 
         PAGE   3
 
         
 
         and he therefore returned to a variety of light duty jobs until 
 
         he was assigned a janitorial position in 1986.  Claimant 
 
         asserted this position is temporary in that he does not have 
 
         sole rights to the job and it someone with more seniority 
 
         returns to work he must give up the job.  Claimant continued to 
 
         work as a janitor until he took a nonwork-related leave of 
 
         absence in February 1988.  Claimant testified he is earning 
 
         less money as a janitor where he is paid an hourly wage 
 
         ($10.735) than he could be earning as a tire builder where his 
 
         pay was based on incentive or piece work.  Claimant 
 
         acknowledged, however, that he generally works 40 or more hours 
 
         per week in the janitor position.
 
         
 
              Jack Salsbury, benefits representative for the union 
 
         representing Armstrong production employees, testified 
 
         claimant's average weekly earnings prior to March 1983 were 
 
         $523.35 and that since 1983 wage increases have totaled $2.19 
 
         per hour but wage concessions have totaled $2.27 per hour.  He 
 
         therefore concluded the average weekly wage for tire builders 
 
         adjusted to April 1988 earnings is $520.15.  Salsbury, using 
 
         claimant's current hourly wage of $10.735 multiplied by 40 
 
         hours per week, represented that claimant's current wage is 
 
         $429.40 per week or a dollar loss of  $90.75 per week 
 
         constituting a 17 percent loss of earnings.  Salsbury also 
 
         testified to the extensive benefits afforded claimant in his 
 
         current employment and acknowledged that according to the 
 
         collective bargaining agreement (which provides that employees 
 
         with at least 15 years seniority will be placed in a position 
 
         within medical restrictions), the job claimant holds is stable 
 
         and secure and absent circumstances so justifying an action, 
 
         claimant is not subject to discharge.  Salsbury offered that if 
 
         no complaints are received on an employee that employee's 
 
         record must be good and that he has received no complaints on 
 

 
         
 
         
 
         
 
         CURRENT V. ARMSTRONG RUBBER COMPANY
 
         PAGE   4
 
         
 
         claimant.
 
         
 
              Robert Wentzel, assistant industrial relations manager for 
 
         defendant employer, testified he is responsible for the 
 
         administration of a labor contract, holding disciplinary 
 
         hearings and investigations, overseeing the medical department, 
 
         and the workers' compensation program.  With regard to 
 
         speculation as to the future of the Armstrong plant in Des 
 
         Moines, Wentzel offered that the labor agreement has been 
 
         approved by all interested parties, that that agreement runs 
 
         for three years, and that he believes the plant wail remain 
 
         open.  Wentzel testified claimant enjoys excellent job security 
 
         and knows of no reason why claimant's job would be in jeopardy 
 
         both by virtue of claimant's excellent work record and the 
 
         collective bargaining agreement.  He opined it is unusual for a 
 
         janitor to be "short shifted" and could think of no time in the 
 
         last three years where a janitor has been sent home early 
 
         whereas tire builders are usually, in his opinion, short 
 
         shifted.  He offered that the opportunities for overtime as a 
 
         janitor also prevail.
 
         
 
              Medical records of Robert A. Hayne, M.D., neurological 
 
         surgeon, reveal he first treated claimant ten years prior to 
 
         the March 1983 injury when claimant underwent a cervical fusion 
 
         for herniates nucleus puiposus at the fifth and sixth cervical 
 
         interspaces and a 10 percent "disability" rating was given 
 
         (although not by Dr. Hayne).  See defendants' Exhibit B, page 
 
         1. Claimant was again seen April 11, 1963, with a history of a 
 
         work injury and aching along the shoulder with pain in the 
 
         right upper extremity.  A CT, scan performed April 18, 1983, 
 
         showed posterior spurring of C4,5 and C6,7 and mild to moderate 
 
         uncinate spur at the C6,7 level.  A myeolgram, done on June 13, 
 
         1983 showed spondylolsis between the fifth and sixth cervical 
 

 
         
 
         
 
         
 
         CURRENT V. ARMSTRONG RUBBER COMPANY
 
         PAGE   5
 
         
 
         interspaces, bilateral defect involving these nerve roots.  
 
         Following the myelogram, claimant was discharged to continue 
 
         with the conservative measures of treatment but claimant 
 
         continued to complain of shoulder and right arm pain and on 
 
         July 26, 1983, Dr. Hayne performed a cervical laminectomy with 
 
         decompression of fourth and fifth cervical nerve roots on the 
 
         right.  It appears claimant had an uneventful recovery from 
 
         this surgery until September 16, 1983 when Dr. Hayne notes:  
 
         "Doing well until he slipped on floor in basement and tell on 
 
         his back.  Rt. shoulder stiff since then." (Claimant's Exhibit 
 
         1, item 15) Just over a week prior to this incident and 
 
         specifically on September 7, 1983, according to the employer's 
 
         medical representative's report, claimant had advised 
 
         Armstrong's nurse to "keep his job open because he was going to 
 
         go back to it in October."  (Cl. Ex. 1, item 19)  In October 
 
         1983, after treatment failed to relieve claimant's pain, Dr. 
 
         Hayne referred claimant to Joe F. Fellows, M.D., orthopedic 
 
         surgeon, who noted on October 28, 1983:  "Mr. Current has had 
 
         problems with his right shoulder through the summer months. he 
 
         originally hurt his shoulder and neck in March of 1983 at work 
 
         when he was pulled rather violently .... He has had no 
 
         significant prior history of shoulder injury on the 
 
         right....O(Cl. Ex. 1, item 21)
 
         
 
              Dr. Fellows makes no note of claimant's fall in September 
 
         1983, as claimant failed to convey such a history.  An 
 
         arthrogram done December 19, 1983 showed a "fairly substantial 
 
         tear" of the rotator cuff of the right shoulder and Dr. Fellows 
 
         states it was to probably as a result of injury in March, 
 
         1983."  Claimant underwent surgery for the repair of the tear 
 
         on January 11, 1984 and was released to return to work on 
 
         approximately September 17, 1984 at light duty with a 20 pound 
 
         lifting restriction.  On October 7, 1985, Dr. Fellows advised:
 

 
         
 
         
 
         
 
         CURRENT V. ARMSTRONG RUBBER COMPANY
 
         PAGE   6
 
         
 
         
 
                 Mr. Current is able to work with the following 
 
              permanent restrictions:  No lifting over 30 pounds and 
 
              no overhead work with his right arm.
 
         
 
                 His permanent physical impairment of the shoulder is 
 
              20% based on his rotator cuff tear and subsequent 
 
              surgery.
 
         
 
         (Cl. Ex. 1, item 34)
 
         
 
              In November 1984, Dr. Hayne stated: "The disability rating 
 
         given to Clifford L. Current that dates back to symptoms that 
 
         came on after an accident on March 22, 1983, is 18% of body 
 
         total."
 
         
 
                                  APPLICABLE LAW
 
         
 
              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).
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         evidence that the injury of March 22, 1983 is causally related to 
 
         the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              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 'disabilityO 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 v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) 
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              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. * * * *
 
         
 
         ANALYSIS
 
         
 
              As initially noted, defendants do not dispute claimant's 
 

 
         
 
         
 
         
 
         CURRENT V. ARMSTRONG RUBBER COMPANY
 
         PAGE   7
 
         
 
         work injury or March 22, 1983 caused the cervical surgery but 
 
         dispute it caused the rotator cuff tear necessitating surgery.  
 
         Claimant makes no request for medical benefits or temporary total 
 
         disability/healing period benefits for the period of time it took 
 
         to recover from this surgery but request that the effect of the 
 
         surgery and resulting impairment be considered in making a 
 
         determination of industrial disability.
 
         
 
              Claimant asserted at the time of hearing that he experienced 
 
         constant pain of his right shoulder from the time of his work 
 
         injury until he had the rotator cuff surgery.  While there can be 
 
         no dispute claimant's work injury affected his shoulder, the 
 
         medical evidence failed to substantiate claimantOs allegation 
 
         that the tear of the rotator cuff is related to the incident of 
 
         March 23, 1983.  The nurseOs notes found in defendant employer's 
 
         medical record show, with regard to a possible right shoulder 
 
         strain, that claimant had good range of motion immediately after 
 
         the incident at work.  After undergoing the cervical fusion in 
 
         July 1983, Dr. Hayne noted claimant was "much improved.O  No 
 
         mention is made of shoulder pain.  Defendants' nurse reported 
 
         claimant advised he would be returning to work in October 1983.  
 
         Just after this statement was recorded, claimant advised Dr. 
 
         Hayne he slipped on the floor of the basement, which was 
 
         identified as concrete flooring, landing on his back.  Dr. Hayne, 
 
         who had appeared satisfied with claimant's progression prior to 
 
         that date, noted claimant's shoulder had been stiff since the 
 
         time of the fall.  Dr. Hayne first tried an injection of 
 
         cortisone but eventually referred claimant to Dr. Fellows.  Dr. 
 
         Hayne does not relate the shoulder stiffness to the March 1983 
 
         work incident. It is essential to note that Dr. Fellows concludes 
 
         the rotator cuff tear is "probably as a result of the injury in 
 
         March, 1983.  However, Dr. Fellows is clearly acting without a 
 
         complete medical history.  Claimant acknowledged and Dr. Fellows' 
 
         records so reflect that no mention was ever made of the fall in 
 
         the basement in September 1983.  Claimant sought to dismiss this 
 
         omission by asserting that he did not think the incident 
 
         significant and further did not believe it extended his healing 
 
         period.  Yet, just a little over a week before this fall, he was 
 
         making representations of returning to work within a month.  
 
         Following this fall, claimant was unable to return to work for 
 
         over a year.  Because of the inaccurate history, Dr. Fellows' 
 
         opinion is suspect.  Dr. Hayne does not relate claimant's 
 
         symptoms to the work injury.  As stated above, the question of 
 
         causal connection is essentially within the domain of expert 
 
         testimony.  What is left, then, is only the possibility that the 
 
         work injury caused this condition.  A possibility is 
 
         insufficient.  Claimant has failed to meet his burden that the 
 
         work injury of March 22, 1983 is causally related to the rotator 
 
         cuff surgery and resulting impairment and it cannot therefore be 
 
         considered in making the determination of the extent of 
 
         claimant's industrial disability resulting from the work injury.
 
         
 
              An individual with a permanent impairment, by the very 
 
         meaning of the phrase, can never return to the same physical 
 
         condition he or she was in prior to the time of the injury.  Dr. 
 
         Hayne opines claimant has an 18 percent of body total 
 
         "disability" that "dates back to symptoms that came on after an 
 
         accident on March 22, 1983."  Although this opinion is somewhat 
 
         unclear as to its exact meaning and Dr. Hayne refers to 
 
         "disability" which is within the domain of the industrial 
 

 
         
 
         
 
         
 
         CURRENT V. ARMSTRONG RUBBER COMPANY
 
         PAGE   8
 
         
 
         commissioner and his deputies rather than "impairment" which is 
 
         the domain of the expert witness, it is accepted that the work 
 
         injury of March 22, 1983, resulted in a cervical fusion and a 
 
         permanent impairment, thus entitling claimant to an award of 
 
         industrial disability.
 
         
 
              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 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole by a medical 
 
         evaluator does not equate to industrial disability.  This is so 
 
         as impairment and disability are not synonymous.  The degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employeeOs medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons relates to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy commissioner to draw 
 
         upon prior experience, general and specialized knowledge to make 
 
         the finding with regard to degree of industrial disability.  See 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985), 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant is currently 50 years old (44 at the time of his 
 
         injury) with a high school education and with primary work 
 

 
         
 
         
 
         
 
         CURRENT V. ARMSTRONG RUBBER COMPANY
 
         PAGE   9
 
         
 
         experience as a tire builder.  Claimant has been prohibited from 
 
         returning to tire building as a result of the restrictions 
 
         imposed by Dr. Fellows following surgery to repair the torn 
 
         rotator cuff.  It has already been determined that this is not 
 
         causally connected to the work injury.  Defendants cannot be held 
 
         liable for any reduction in earning capacity which comes as a 
 
         result of incidents not work related.  The medical records do not 
 
         reveal that Dr. Hayne imposed any work restrictions on claimant.  
 
         The reasons for this are unclear.  It may be that there are no 
 
         restrictions as a result of the cervical fusion or that Dr. Hayne 
 
         is relying on Dr. Fellows' opinion with regard to restrictions.  
 
         For the undersigned to make any assumption in this regard, 
 
         however, would be clearly improper.
 
         
 
              Claimant underwent cervical fusion in January 1974 for 
 
         treatment of a herniated disc at the fifth and sixth cervical 
 
         interspaces.  Claimant did well until the current incident.  The 
 
         severity of two cervical fusions within approximately ten years 
 
         time cannot be underestimated.  Claimant is currently employed in 
 
         a position which all parties agree is safe and secure.  Because 
 
         of claimant's excellent work record and specific provisions of 
 
         the collective bargaining agreement, the likelihood of future 
 
         unemployment is almost nil.  However, it is claimant's condition 
 
         at the time of hearing that must be evaluated.  To speculate on 
 
         what may happen to claimant in the future is clearly improper. 
 
         Umphress v. Armstrong Rubber Company, (Appeal Decision, August 
 
         27, 1987).  Defendants have made extended efforts to keep 
 
         claimant employee, and physically employed within his medical 
 
         restrictions.  In Gallardo v. Firestone Tire & Rubber Company, 
 
         (Appeal Decision, October 21, 1987), the industrial commissisoner 
 
         found that defendants' efforts to keep claimant employed was held 
 
         to less than claimant's loss of earning capacity.  Extensive 
 
         attention was paid both by claimant and defendants to claimant's 
 
         loss of earnings.  It is sufficient to note that industrial 
 
         disability relates to a reduction in earning capacity rather than 
 
         a change in actual earnings.  Michael v. Harrison County, 34 
 
         Biennial Report of the industrial Commissioner 218, 220, (Appeal 
 
         Decision, January 30, 1979).  Considering all the elements of 
 
         industrial disability, it is found claimant has sustained a 25 
 
         percent disability for industrial purposes as a result of his 
 
         injury of March 22, 1983.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on March 22, 1983 which resulted in 
 
         the cervical surgery in July 1983.
 
         
 
              2. Claimant underwent cervical surgery in January 1974 for 
 
         two herniated discs at the fifth and sixth cervical interspaces.
 
         
 
              3. Following the cervical surgery in July 1983, claimant 
 
         made representations to defendants that he anticipated return to 
 
         work in October 1983.
 
         
 
              4.  On September 16, 1984, claimant slipped going down into 
 
         the basement falling onto a concrete floor and landing on his 
 

 
         
 
         
 
         
 
         CURRENT V. ARMSTRONG RUBBER COMPANY
 
         PAGE  10
 
         
 
         back.
 
         
 
              5.  Claimant has stiffness in his right shoulder following 
 
         this incident and was referred to an orthopedic surgeon who, in 
 
         January 1984, performed surgery to repair a torn rotator cuff.
 
         
 
              6.  The orthopedic surgeon opined that claimant's rotator 
 
         cuff tear was probably as a result of an injury in March 1983; 
 
         however, claimant failed to relay to the surgeon the incident of 
 
         falling in his basement just one month previous.
 
         
 
              7.  Following the repair of the torn rotator cuff, claimant 
 
         was unable to return to work until September 1984.
 
         
 
              8.  Claimant returned to work at the time of his release and 
 
         is currently employed in a safe and secure position with 
 
         defendant employer but has suffered some loss of earnings.
 
         
 
              9.  Claimant is currently 50 years old, 44 at the time of 
 
         injury, with a high school education, who has principally earned 
 
         his living as a tire builder.
 
         
 
             10.  Because of the restrictions imposed on claimant as a 
 
         result of the torn rotator cuff, claimant is prohibited from 
 
         returning to work as a tire builder.
 
         
 
             11.  Defendants have made extended efforts to keep claimant 
 
         employed and specifically employed within his medical 
 
         restrictions.
 
         
 
             12.  Claimant has sustained a permanent impairment as a 
 
         result of the work injury of March 22, 1983.
 
         
 
             13.  Claimant has sustained 25 percent disability for 
 
         industrial purposes as a result of his injury of March 22, 1983.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has failed to meet his burden of proof that the 
 
         torn rotator cuff necessitating surgery is causally connected to 
 
         the work injury of March 22, 1983.
 
         
 
              2.  Claimant has established he sustained a permanent 
 
         partial disability of 25 percent for industrial purposes.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants are to pay unto claimant one hundred 
 
         twenty-five (125) weeks of permanent partial disability benefits 
 
         at a stipulated rate of three hundred eighteen and 85/100 dollars 
 
         ($318.85) per week commencing September 18, 1984.
 
         
 
              That defendants shall receive full credit for all permanent 
 
         partial disability benefits previously paid.
 
         
 

 
         
 
         
 
         
 
         CURRENT V. ARMSTRONG RUBBER COMPANY
 
         PAGE  11
 
         
 
              Benefits that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 18th day of July, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll
 
         Des Moines, Iowa 50309-3320
 
         
 
         Ms. Elizabeth Gregg Kennedy
 

 
         
 
         
 
         
 
         CURRENT V. ARMSTRONG RUBBER COMPANY
 
         PAGE  12
 
         
 
         Attorney at Law
 
         100 Court Avenue
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1803; 1402.40
 
                                                    Filed July 18, 1988
 
                                                    DEBORAH A. DUBIK
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLIFFORD L. CURRENT,
 
         
 
              Claimant,                           File No. 735375
 
         
 
         vs.                                  A R B I T R A T I 0 N
 
         
 
         ARMSTRONG RUBBER COMPANY,                D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803; 1402.40
 
         
 
              Claimant sustained an injury arising out of and in the 
 
         course of his employment to his neck which resulted in a cervical 
 
         laminectomy.  While recovering from surgery, claimant fell at 
 
         home and eventually had surgery to repair a torn rotator cuff.  
 
         It was found claimant failed to establish a causal connection 
 
         between the injury and surgery on the rotator cuff.  Considering 
 
         all the elements of industrial disability, claimant found to have 
 
         a 25 percent industrial disability.