BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LARRY P. OLSON,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                  File No. 738244
 
            DEPARTMENT OF TRANSPORTATION, 
 
                                                   A P P E A L
 
                 Employer, 
 
                                                 D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 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.
 
            
 
                                  ISSUES
 
 
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  Claimant states the following issue on 
 
            appeal:  "Whether the Deputy Industrial Commissioner was 
 
            correct in allowing the State of Iowa to take a credit for 
 
            disability payments paid to Claimant." 
 
            Defendants state the following issues on cross-appeal:
 
            I.  Claimant has never made a prima facie showing of 
 
            entitlement under the odd-lot doctrine.
 
            II.  The deputy improperly admitted evidence of psychiatric 
 
            injury, which was beyond the scope of the remand order and 
 
            the hearing assignment order.
 
            III. Defendants are entitled to credit for the net amounts 
 
            received by claimant under the long-term disability plan.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed May 30, 1990 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.
 
            *****
 
            
 
                 The appeal decision filed on October 30, 1986, found 
 
            the following facts to be established:
 
            
 
                 1.  Claimant is 41 years of age and graduated from 
 
                 high school in 1962.
 
            
 
                 2.  Claimant has had no formal training after high 
 
     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
                 school except a two month data processing course 
 
                 shortly after his graduation from high school.
 
            
 
                 3.  Claimant worked on cars with his father from 
 
                 about age ten until 1965; he also has worked as a 
 
                 frozen food manager for about one year.
 
            
 
                 * * *
 
            
 
                 7.  On May 13, 1983 James W. Turner, M.D., 
 
                 performed a laminectomy at L5-S1.
 
            
 
                 * * *
 
            
 
                 10.  On April 27, 1984, claimant had a 
 
                 decompressive laminectomy at the L4-L5 level and 
 
                 further widening was done at L5-S1.
 
            
 
                 * * *
 
            
 
                 13.  Claimant lacks motivation to improve his 
 
                 functional level.
 
            
 
                 14.  Claimant lacks motivation to return to work.
 
            
 
                 15.  Claimant has permanent lifting, stooping, 
 
                 bending, walking, and standing restrictions 
 
                 because of his injury of January 14, 1983, the 
 
                 aggravation thereof and two surgeries.
 
            
 
                 The appeal decision further noted that the earlier 
 
            arbitration decision adequately set out the salient evidence 
 
            which was for that reason not set forth therein.  The appeal 
 
            decision further noted:
 
            
 
                 James W. Turner, M.D., stated that claimant has a 
 
                 30 percent permanent partial impairment to the 
 
                 body as a whole and that this impairment is 
 
                 directly related to his injury of January 14, 
 
                 1983; the aggravation at the swimming pool; and 
 
                 his two surgeries in 1983 and 1984.  He restricted 
 
                 claimant to lifting no more than 20 to 30 pounds; 
 
                 no bending or stooping; and avoid periods of 
 
                 prolonged standing or walking.  However, he stated 
 
                 that claimant's bowling activities "raise a very 
 
                 big question" about the cause of claimant's 
 
                 condition.
 
            
 
                 Claimant's previous work experience includes 
 
                 working in his father's gas station doing 
 
                 automotive repair until 1965; working as a frozen 
 
                 food manager in a grocery store from 1965 to 1966; 
 
                 serving four years in the Air National Guard 
 
                 during the 1960's; and being employed with the 
 
                 Iowa DOT (formerly the Iowa State Highway 
 
                 Commission) since April 1966.
 
            
 
                 * * *
 
            
 
                 On October 30, 1984 claimant was interviewed by a 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
                 certified rehabilitation nurse, Patricia McCollum.  
 
                 She subsequently prepared a report in which she 
 
                 concluded that based on her study of the Cedar 
 
                 Rapids area job market and claimant's physical 
 
                 restrictions and limitations claimant was not 
 
                 employable and had no transferrable skills in the 
 
                 Cedar Rapids area job market at that time.
 
            
 
                 However, Judy Steenhoek, a rehabilitation 
 
                 specialist, testified that in her opinion claimant 
 
                 is employable but that he needs assistance to get 
 
                 into a routine and needs help with job placement.  
 
                 She also concluded that "Mr. Olson is not highly 
 
                 motivated to return to work or even try."  
 
                 However, she did acknowledge that a person out of 
 
                 work for two years becomes frustrated.
 
            
 
                 ***** [The appeal decision] found that the evidence did 
 
            not support a prima facie case for including claimant in the 
 
            odd-lot category and that the evidence in the record and as 
 
            set out in the arbitration decision concerning claimant's 
 
            employability and motivation showed claimant to be 
 
            employable with some assistance and cooperation on his part.
 
            
 
                 The summary of evidence set forth in the arbitration 
 
            decision of June 27, 1985 included:
 
            
 
                 Larry P. Olson, the claimant, testified that he 
 
                 was born on June 14, 1944 and graduated from high 
 
                 school in 1962.  After high school graduation, he 
 
                 had a two or three month course with IBM learning 
 
                 about data processing; however, he never used this 
 
                 training because he was unable to get a job in 
 
                 this field.  He doubts whether the machines he 
 
                 learned to work with in 1962 are still in use.
 
            
 
                 Claimant testified that he worked for his father 
 
                 in a gas station, from the time he was ten or 
 
                 eleven years old until 1965, doing automotive 
 
                 repair.  From 1965 to 1966 he worked as a frozen 
 
                 food manager at a grocery store and during the 
 
                 1960's was in the Air National Guard for four 
 
                 years.  In April of 1966 he started work for the 
 
                 Iowa State Highway Commission (now Iowa Department 
 
                 of Transportation) in Ames in the design soil 
 
                 department and worked in this capacity for about 
 
                 four years.  From 1970 to 1975 he worked out of 
 
                 Iowa City for the Iowa Department of 
 
                 Transportation as a grade inspector and at the end 
 
                 of this period was transferred to Cedar Rapids to 
 
                 be a mechanic's helper.
 
            
 
                 This mechanic's helper job required claimant to do 
 
                 assignments, given to him by a mechanic, such as 
 
                 fabrication work, welding, electrical work, brake 
 
                 jobs and working on springs.  This required a 
 
                 "great deal of lifting and was all heavy work."  
 
                 At some point he was promoted and worked as a 
 
                 mechanic until April of 1983.  He was terminated 
 
                 in December of 1984; however, he had stopped 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
                 performing any work in April of 1983.
 
            
 
                 * * *
 
            
 
                 Claimant testified that on May 3, 1985 he 
 
                 attempted to complete a merit test to be a 
 
                 driver's examiner, but was unable to complete the 
 
                 three hour test because of back pain.  He looks at 
 
                 employment ads in the classified section even 
 
                 though he has never been released by a doctor.  
 
                 Dr. Turner told him "to do what he could do."  
 
                 However, he has not sought employment after his 
 
                 injury in January of 1983.  See defendants' 
 
                 exhibit D, pages 42-43.  He has not been employed 
 
                 since April of 1983; however, in November of 1983 
 
                 he started receiving about $875 per month in 
 
                 disability payments.  He started receiving 
 
                 workers' compensation in November of 1984.  He has 
 
                 no selling or office experience, but attended 
 
                 seminars or courses while working for the 
 
                 Department of Transportation, sponsored by the 
 
                 agency, on subjects such as bridge or grade 
 
                 inspection.
 
            
 
                 * * *
 
            
 
                 Patricia McCollum testified she owns and has run a 
 
                 rehabilitation service for the last three years 
 
                 and that she has studied the job market in the 
 
                 Cedar Rapids area.  On October 30, 1984, she 
 
                 conducted an interview of claimant and 
 
                 subsequently wrote a report dated December 19, 
 
                 1984.  See claimant's exhibit 6.  She concluded 
 
                 that claimant was not employable in the Cedar 
 
                 Rapids area given his limitations and 
 
                 restrictions.  She concluded that it "would be 
 
                 inappropriate to work in job placement given 
 
                 claimant's physical condition." 
 
            
 
                 Kathy Olson testified that she married claimant on 
 
                 September 5, 1971 and that after his auto accident 
 
                 in 1972 he was able to return to work without 
 
                 restrictions.  Also, in 1977 after his slip and 
 
                 fall, he returned to work without restrictions.
 
            
 
                 Mrs. Olson testified that in the winter of 1984 
 
                 claimant would on occasion use the snowblower for 
 
                 thirty to sixty minutes.  After such activity, he 
 
                 would take a pain pill or two, stretch out in the 
 
                 recliner, and sometimes go to bed.  He also bowled 
 
                 even though he was in pain.
 
            
 
                 Roger Hyndman testified that he was an employee of 
 
                 American Investigations of Cedar Rapids from 
 
                 November 1, 1984 through March 7, 1985 and 
 
                 American Investigations was retained by defendants 
 
                 herein to investigate claimant.  On February 5, 
 
                 1985, he took pictures of claimant in the morning 
 
                 (in the morning claimant was outside for about 
 
                 forty minutes) and in the afternoon (in the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
                 afternoon claimant was outside for twenty minutes) 
 
                 while he was removing snow from his driveway or 
 
                 sidewalk with a snow shovel.  He also observed 
 
                 claimant for about forty minutes using a 
 
                 snowblower to remove snow on February 11, 1985 and 
 
                 photographed him on this occasion.  (Exhibit N is 
 
                 the photos Hyndman took on the three occasions 
 
                 mentioned above; exhibits O and P are the same 
 
                 photos but are enlargements.)
 
            
 
                 Hyndman compared claimant's manner of walking on 
 
                 February 5, 1985 and February 11, 1985 with his 
 
                 gait at time of hearing (May 9, 1985) and at the 
 
                 time claimant's deposition was taken on May 7, 
 
                 1985.  (Def. ex. E)  He stated that claimant 
 
                 "carries himself differently in the way he walks" 
 
                 and that "his gait is slower" at time of hearing 
 
                 as compared to February of 1985.  He also had 
 
                 "more bending action in his back and knees on 
 
                 February 5, 1985."  On February 11, 1985, he 
 
                 "seemed to walk quite normally.  He could move the 
 
                 snowblower up to a 30 degree angle.  He pulled to 
 
                 start the snowblower and had to pull two or three 
 
                 times."  In summary, he stated that on February 5, 
 
                 1985 and February 11, 1985, claimant's movements 
 
                 "appeared to be unhindered."
 
            
 
                 David M. Butler testified that he is a private 
 
                 investigator and was Mr. Hyndman's employer at the 
 
                 time Hyndman investigated claimant.  During the 
 
                 afternoon of February 5, 1985, Butler observed 
 
                 claimant shoveling snow and that "his movements 
 
                 did not seem to be restricted in any manner as he 
 
                 was bending, stooping and throwing snow to the 
 
                 side."  On February 11, 1985, Butler and Hyndman 
 
                 observed claimant using a snowblower at his 
 
                 property and doing the neighbor's driveway.
 
            
 
                 * * *
 
            
 
                 James Phinney testified that he is the resident 
 
                 maintenance engineer for the Iowa Department of 
 
                 Transportation in Cedar Rapids and that claimant's 
 
                 employment was terminated on December 7, 1984 
 
                 pursuant to a union contract.  (See claimant's 
 
                 exhibit 21)
 
            
 
                 Judy Steenhoek testified that she is a 
 
                 rehabilitation specialist with a M.A. in this area 
 
                 from Drake University.  She first met with 
 
                 claimant on November 9, 1984 and then again in 
 
                 March of 1985.  Defendants have retained her, but 
 
                 it was not until January of 1985 that she was told 
 
                 to do what she had to do to get claimant a job.  
 
                 She acquainted herself with the restrictions given 
 
                 to claimant by James W. Turner, M.D.
 
            
 
                 Steenhoek testified that claimant is not 
 
                 interested in a specific exercise program.  She 
 
                 told him about a dislocated workers' center in 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
                 Cedar Rapids but he did not initially go to this 
 
                 center because she only gave him the phone number 
 
                 and not the address.  She then went to the center 
 
                 herself to make arrangements for claimant to 
 
                 complete an application.
 
            
 
                 Steenhoek testified that she contacted a skills 
 
                 center at Kirkwood Community College on claimant's 
 
                 behalf and agreed to pay for his enrollment at 
 
                 this center; however, it was not until May 3, 
 
                 1985, just before hearing, that she was able to 
 
                 convince him to go to this center.
 
            
 
                 Steenhoek stated her opinion that claimant is 
 
                 employable but that he needs assistance to get 
 
                 into a routine and needs help with job placement.  
 
                 However, she concluded that "Mr. Olson is not 
 
                 highly motivated to return to work or even try."  
 
                 She acknowledged, however, that a person off work 
 
                 for two years becomes frustrated.
 
            
 
                 * * *
 
            
 
                 Dr. Turner stated that claimant has a 30 percent 
 
                 permanent partial impairment to the body as a 
 
                 whole and that this impairment is directly related 
 
                 to his injury of January 14, 1983; the aggravation 
 
                 at the swimming pool; and his two surgeries in 
 
                 1983 and 1984.  Prior to the swimming pool 
 
                 incident, he stated that a 20 percent impairment 
 
                 rating was appropriate.  He restricted claimant to 
 
                 lifting no more than 20 to 30 pounds; no bending 
 
                 or stooping; and to avoid periods of prolonged 
 
                 standing for [sic] walking.  However, at page 53 
 
                 of his deposition (claimant's exhibit 14) he 
 
                 states that claimant's bowling activities "raise a 
 
                 very big question" about the cause of claimant's 
 
                 condition.
 
            
 
                 The deposition of Patricia McCollum is in evidence as 
 
            claimant's exhibit 2-12, although deposition exhibit 2 
 
            attached thereto has been excluded.  This deposition was 
 
            taken April 7, 1989.
 
            
 
                 Ms. McCollum testified that her curriculum vitae since 
 
            her previous testimony included certification as an 
 
            insurance rehabilitation specialist, publication of 
 
            materials, teaching experience in graduate school and 
 
            service as the national president of the Association of 
 
            Rehabilitation Nurses.  She indicated that she had reviewed 
 
            various records, including the report of a psychologist, J. 
 
            D. Brewer, Ph.D., and had seen claimant again.
 
            
 
                 Ms. McCollum indicated further that she had reviewed 
 
            the previous depositions and testimony of Judy Steenhoek, 
 
            but disagreed with Steenhoek's belief that claimant was 
 
            qualified for three positions:  engineering office assistant 
 
            I and II and driver's license examiner.  Her reason for 
 
            disagreement was that claimant's physical capacity and 
 
            emotional status prevent him from competitive employment at 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            this time.  She testified:
 
            
 
                 Q.  Can you tell me what your findings were in 
 
                 your most recent assessment?
 
            
 
                 A.  My conclusion at reassessment and after review 
 
                 of the medical information and psychological 
 
                 reports was that his current physical and 
 
                 psychological status combined to prevent him from 
 
                 returning to any type of gainful employment.
 
            
 
                 The rationale for that is that his physical 
 
                 condition has deteriorated since I saw him in 
 
                 1984, that the chronic pain management treatment 
 
                 that was recommended at that time was not 
 
                 completed, and that subsequent depression, fear 
 
                 and isolation have resulted in decreased ability 
 
                 for him to participate in activities of daily 
 
                 living and work, and not only are the physical 
 
                 limitations barriers to return to work, but the 
 
                 psychological status confounds those limits.
 
            
 
            (McCollum deposition, page 11, line 1 through line 19)
 
            
 
                 And further:
 
            
 
                 Q.  Do you feel that there are any jobs available 
 
                 to Mr. Olson?
 
            
 
                 A.  No, I do not.
 
            
 
                 Q.  In taking into account Larry Olson's physical 
 
                 impairment, education, training, age and mental 
 
                 capacity, is he able to perform services that 
 
                 would result in steady employment in some 
 
                 reasonably stable or recognized area of 
 
                 employment?
 
            
 
                 A.  I do not believe he is.
 
            
 
                 Q.  Do you believe that job seeking by Mr. Olson 
 
                 would be fruitful?
 
            
 
                 A.  No, I do not.
 
            
 
            (McCollum deposition, page 12, line 14 through page 13, line 
 
            1)
 
            
 
                 *****
 
            
 
                 Claimant was referred to the University of Iowa 
 
            Hospitals and Clinics Spine Diagnostic and Treatment Center 
 
            for a functional capacity evaluation on December 21, 1988.  
 
            Dr. James N. Weinstein, director of the center, wrote 
 
            claimant on January 5, 1989.  Dr. Weinstein noted that 
 
            claimant was "very deconditioned."  He was moderately 
 
            self-limiting, able to lift only six pounds with his arms.  
 
            Claimant could tolerate sitting with a back support for 
 
            approximately 30 minutes.  "Our therapist felt that there 
 
            would be very little in the way of employment that you could 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            do in your present condition; that it would take a sincere 
 
            effort on your part to endure the discomfort that would be 
 
            associated with reconditioning."  Dr. Weinstein further 
 
            noted that the staff psychologist felt that claimant could 
 
            work on a less self-defeating attitude and that the 
 
            physicians did not feel surgical intervention was indicated 
 
            and that there were many psychosocial problems which were 
 
            possibly contributing to continuing low back pain.
 
            
 
                 Dr. Weinstein further pointed out that claimant 
 
            believed himself to be 100 percent disabled, and without a 
 
            complete attitude change and a very extensive long-term 
 
            recondition program, "there would be very little that you 
 
            would be capable of doing.  At this time we do not see you 
 
            as being an appropriate rehabilitation candidate because of 
 
            your long period of inactivity and your attitude."
 
            
 
                 Dr. Weinstein wrote claimant again on January 24, 1989 
 
            for clarification.  He indicated that claimant cannot 
 
            presently engage in gainful employment and that his overall 
 
            physical condition, muscle strength, cardiovascular 
 
            conditioning and attitude "certainly" rules out immediate 
 
            employment.  However, Dr. Weinstein further opined that all 
 
            of the above factors were subject to change and improvement 
 
            based on motivation and that claimant had the physiological 
 
            capability to significantly improve his overall ability to 
 
            function.  Dr. Weinstein wrote further that in his opinion 
 
            and in the opinion of the spine team, claimant had the 
 
            capability for rehabilitation and that the structural 
 
            situation with his back was not the primary disability.  
 
            "The primary disability at this time involves muscular 
 
            weakness and cardiovascular deficiency and lack of proper 
 
            flexion due to inactivity, and frankly, a quite negative 
 
            attitude on your part."  Dr. Weinstein further noted that 
 
            claimant's 100 percent disability at the present time was in 
 
            part self-inflicted.
 
            
 
                 Clinical psychologist Eugene F. Gauron, Ph.D., was a 
 
            member of the spine team.  He wrote on December 22, 1988 
 
            that claimant seemed frozen in a self-defeating position and 
 
            was essentially impervious to external influence and locked 
 
            into a way of being which offered him few satisfactions.
 
            
 
                 Ted Wernimont, M.S.W., is rehabilitation director of 
 
            the Spine Diagnostic and Treatment Center.  He wrote on 
 
            December 22, 1988, that claimant was absolutely convinced 
 
            that he was a physical disaster and would continue to worsen 
 
            with time.  He believed claimant represented "the most 
 
            tragic kind of consequent" that happens to industrially 
 
            injured workers who perceive the system as failing them.  
 
            Claimant showed absolutely no interest in any type of a 
 
            positive approach to his problem.  Wernimont believes that 
 
            no individual is beyond rehabilitation and that if claimant 
 
            were to take a positive view and work towards a series of 
 
            physical and vocational goals, he could find a vocational 
 
            option well within his capabilities.  "However, I do not see 
 
            this man being able to approach rehabilitation at this time 
 
            because of four years of inactivity, anger and bitterness."
 
            
 
                 James W. Turner, M.D., wrote on October 6, 1988 that 
 

 
            
 
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            claimant had been seen on the day before and that his 
 
            condition was basically unchanged since his last visit.  He 
 
            noted that claimant was in an extreme deconditioned state 
 
            and that while he was disabled and unable to work, he did 
 
            not feel that this was simply related to the back injury, 
 
            "but that his entire physical and mental condition must be 
 
            considered in arriving at an opinion."
 
            
 
                 Letters of clinical psychologist J. D. Brewer, Ph.D., 
 
            are in evidence bearing dates of July 9 and October 20, 1987 
 
            and October 20, 1988.  Dr. Brewer's letter of April 6, 1989 
 
            was excluded from evidence (plaintiff's exhibit 2-8).  Dr. 
 
            Brewer was of the view that claimant's depression and 
 
            psychomotor retardation make it very difficult for him to 
 
            accomplish even the simplest tasks.  Depression seriously 
 
            restricts claimant's ability to function on a day-to-day 
 
            basis.  Dr. Brewer opined that claimant was incapable of 
 
            performing any work on a full-time basis, both from loss of 
 
            physical functioning and depressive symptomatology.
 
            
 
                 Dr. Brewer's letter of October 20, 1987 contains the 
 
            following language:
 
            
 
                 Summary:  Larry Olson is a patient who is quite 
 
                 disabled.  This disability appears to be a 
 
                 combination of both his physical limitations and 
 
                 physical disability, and his major depression as a 
 
                 result of those physical disabilities.
 
            
 
                 Dr. Brewer's letter of October 20, 1988 reiterated that 
 
            claimant was unable to work due to his response to pain and 
 
            his depression.  He felt that claimant's condition had 
 
            deteriorated over the preceding six months.  He felt that 
 
            claimant had cooperated with treatment to the fullest extent 
 
            possible considering his depression, dysphoria and feelings 
 
            of hopelessness.  His prognosis was poor.
 
            
 
                 Neurologist Winthrop S. Risk, M.D., wrote on May 28, 
 
            1985 that claimant was depressed and that while the etiology 
 
            of his symptoms was uncertain, his condition appeared to 
 
            have deteriorated substantially compared to a previous 
 
            examination on November 28, 1983.  He wrote:
 
            
 
                 In addition, the patient is extremely depressed.  
 
                 Under the circumstances, it would be difficult to 
 
                 sort out the relative contributions of these 
 
                 findings to the patient's overall impairment.  By 
 
                 his account, the back pain is the primary problem, 
 
                 and in fact during the examination the patient was 
 
                 constantly shifting his weight getting up and 
 
                 standing, walking short steps, and returning to 
 
                 sitting position.  On this basis, the patient 
 
                 would appear to be totally impaired for any type 
 
                 of activity.
 
            
 
                 *****
 
            
 
                 Dr. Risk stated finally that claimant was totally 
 
            impaired for any occupation irrespective of his education, 
 
            training and experience on either a full-time or part-time 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            basis and would not be able to perform light work or 
 
            sedentary work.
 
            
 
                 *****
 
            
 
                 Claimant has and is continuing to receive long-term 
 
            disability benefits through a plan funded wholly by the 
 
            state of Iowa and administered by Principal Mutual Life 
 
            Insurance Company.  Except for one month, claimant has 
 
            received $875.52 less federal income tax each month since 
 
            November 26, 1983.  The record does not disclose claimant's 
 
            net receipt of long-term disability benefits.
 
            
 
                                CONCLUSIONS OF LAW
 
 
 
            The conclusions of law contained in the proposed agency 
 
            decision filed May 30, 1990 are adopted as set forth below.  
 
            Segments designated by asterisks (*****) indicate portions 
 
            of the language from the proposed agency decision that have 
 
            been intentionally deleted and do not form a part of this 
 
            final agency decision.  Segments designated by brackets ([ 
 
            ]) indicate language that is in addition to the language of 
 
            the proposed agency decision.
 
            *****
 
            
 
                 Under Guyton, 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 and is 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.  A person 
 
            who has no reasonable prospect of steady employment has no 
 
            material earning capacity.
 
            Defendants are of the view that claimant could work at any 
 
            of the positions suggested by Judy Steenhoek.  Claimant has 
 
            been restricted to lifting no more than 20-30 pounds, no 
 
            bending or stooping, and against periods of prolonged 
 
            walking or standing.  Dr. Weinstein, director of the 
 
            University of Iowa Hospitals and Clinics Spine Diagnostic 
 
            and Treatment Center, saw claimant in December, 1988 and 
 
            stated that claimant cannot presently engage in gainful 
 
            employment and that his overall physical condition, muscle 
 
            strength, cardiovascular conditioning and attitude rule out 
 
            immediate employment, although all of the above factors were 
 
            subject to change and improvement based on motivation.  
 
            *****  
 
            [The ruling of the district court has previously determined 
 
            that claimant established a prima facie case that he is an 
 
            odd-lot employee.  The state urges on remand that this is 
 
            not the law of the case, as the state intends to appeal the 
 
            district court's ruling at a later date.  This view is 
 
            erroneous.  The state asks this agency to ignore a district 
 
            court ruling simply because the state is unhappy with the 
 
            result.  Absent a timely appeal of the district court's 
 
            ruling, that decision is the law of this case.  Therefore, 
 
            for purposes of this remand, claimant has established a 
 
            prima facie case that he is an odd-lot employee.
 
            Defendants also argue on appeal that evidence of claimant's 
 
            alleged psychological condition as a result of his work 
 
            injury should not be considered, as the hearing assignment 
 
            order does not list psychological injury as an issue in the 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            case.  Claimant argues that his psychological condition is 
 
            properly a part of his disability and should be considered.  
 
            However, defendants might very well have presented totally 
 
            differing evidence to meet a claim of psychological injury 
 
            than it did to rebut a claim for a physical injury alone.  
 
            Defendants were caught by unfair surprise when the question 
 
            of psychological injury was addressed at a hearing where the 
 
            hearing assignment order failed to list this issue.  
 
            Evidence of claimant's alleged psychological injury will not 
 
            be considered.
 
            As stated above, the ruling of the district court is the law 
 
            of this case as to the determination of odd-lot status.  
 
            Under Guyton v. Irving Jensen Company, 373 N.W.2d 101 (Iowa 
 
            1985), once an injured worker has established that he or she 
 
            is an odd-lot employee, the burden of proof shifts to the 
 
            defendants to show that work within the restrictions of the 
 
            claimant is available to him or her.  Absent such a showing, 
 
            claimant is entitled to a determination that he or she is in 
 
            fact permanently totally disabled.  
 
            In this case, once the district court made the determination 
 
            of odd-lot status, the burden shifted to defendants to show, 
 
            on remand, that such work was available.  Instead, the 
 
            defendants, erroneously assuming the determination of 
 
            odd-lot status was not controlling, opted not to present any 
 
            evidence of employability.  The defendants did so at their 
 
            own peril.  Defendants have failed to carry their burden to 
 
            show that employment is readily available to claimant.  
 
            Claimant is permanently totally disabled.
 
            On appeal, claimant urges that defendant is not entitled to 
 
            a credit under Iowa Code section 85.38(2), which provides:
 
               Credit for benefits paid under group plans.  In the event 
 
            the disabled employee shall receive any benefits, including 
 
            medical, surgical or hospital benefits, under any group plan 
 
            covering nonoccupational disabilities contributed to wholly 
 
            or partially by the employer, which benefits should not have 
 
            been paid or payable if any rights of recovery existed under 
 
            this chapter, chapter 85A or chapter 85B, then such amounts 
 
            so paid to said employee from any such group plan shall be 
 
            credited to or against any compensation payments, including 
 
            medical, surgical or hospital, made or to be made under this 
 
            chapter, chapter 85A or chapter 85B.  Such amounts so 
 
            credited shall be deducted from the payments made under 
 
            these chapters.  Any nonoccupational plan shall be 
 
            reimbursed in the amount so deducted.  This section shall 
 
            not apply to payments made under any group plan which would 
 
            have been payable even though there was an injury under this 
 
            chapter or an occupational disease under chapter 85A or an 
 
            occupational hearing loss under chapter 85B.  Any employer 
 
            receiving such credit shall keep such employee safe and 
 
            harmless from any and all claims or liabilities that may be 
 
            made against them by reason of having received such payments 
 
            only to the extent of such credit.]
 
            
 
                 The long-term disability program established under Iowa 
 
            Code section 79.20 for state employees is a group plan 
 
            covering nonoccupational disabilities.  It is clear from 
 
            both that section and the contract in evidence that benefits 
 
            will not be fully payable if the injury was covered under 
 
            workers' compensation statutes.  Section 79.20 provides that 
 
            benefits are reduced by workers' compensation, if 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            applicable.  The contract, in section 13, provides for 
 
            offsetting benefits by reason of the receipt of disability 
 
            benefits under "workers' compensation."  The industrial 
 
            commissioner has held that defendants are entitled to a 
 
            credit for state of Iowa long-term disability plan.  Lowe v. 
 
            Iowa State Penitentiary, file numbers 673326, 776977 and 
 
            805718 (App. Decn., December 16, 1988).  The parties are 
 
            inclined to argue whether a distinction exists between 
 
            healing period benefits and permanent partial disability 
 
            benefits, claimant being of the view that the latter should 
 
            not be offset.  This issue was recently discussed in Gritton 
 
            v. Dep't of Transp., file number 751165 (Arb. Decn., 
 
            December 20, 1989) as follows:
 
            
 
                 As cited above, Iowa Code section 85.38(2) allows 
 
                 the employer a credit "to or against any 
 
                 compensation payments."  (Emphasis added.)  
 
                 Therefore, regardless of defendants' past, current 
 
                 or future practices, and regardless of the 
 
                 provisions of any other section of the Iowa Code, 
 
                 section 85.38(2) includes all compensation 
 
                 payments without distinguishing betweenid employee."  A literal 
 
                 interpretation of this phrase dictates the 
 
                 conclusion reached herein.  Therefore, defendants 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 are entitled to a credit for the net amounts 
 
                 received by claimant under the long-term 
 
                 disability plan.  See also Giles v. Barton 
 
                 Solvents, Inc., file numbers 816148 and 816149, 
 
                 (Arbitration Decision filed August 25, 1987).
 
            [Claimant has clearly been paid benefits to which the credit 
 
                 contemplated by section 85.38(2) would apply.  The fact that 
 
                 the initial insurance carrier may have waived its right to 
 
                 seek reimbursement from the employer does not affect the 
 
                 right of the employer to claim the credit contemplated by 
 
                 section 85.38(2).  One of the purposes of this section is to 
 
                 avoid a double recovery by claimant.  Not allowing the 
 
                 credit would result in a double recovery by claimant.  
 
                 Defendants will be allowed a credit under Iowa Code 
 
                 85.38(2).]  
 
            *****
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant permanent total 
 
            disability benefits at the weekly rate of two hundred 
 
            nineteen and 58/100 dollars ($219.58) commencing on January 
 
            14, 1983, and continuing during such time as claimant 
 
            remains permanently and totally disabled.
 
            
 
                 That defendants shall be granted credit under Iowa Code 
 
            section 85.38(2) for the net amount of all payments paid 
 
            under the state of Iowa long-term disability plan.
 
            
 
                 That defendants shall pay any accrued amounts in a lump 
 
            sum with interest pursuant to Iowa Code section 85.30.
 
            That claimant and defendants shall share equally the costs 
 
            of the appeal including transcription of the hearing.  
 
            Defendants shall pay all other costs.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1(2).
 
            Signed and filed this ____ day of November, 1992.
 
            
 
            
 
            
 
            
 
                                   ________________________________
 
                                            BYRON K. ORTON
 
                                      INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John L. Riccolo
 
            Attorney at Law
 
            1140, The Center
 
            425 Second St. SE
 
            Cedar Rapids, Iowa 52401
 
            
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            Mr. Daniel W. Perkins
 
            Assistant Attorney General
 
            General Counsel Division
 
            Department of Transportation
 
            800 Lincoln Way
 
            Ames, Iowa 50010
 
            
 
 
            
 
 
 
 
 
 
 
                                              2901; 4100; 1701
 
                                              Filed November 30, 1992
 
                                              Byron K. Orton
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            LARRY P. OLSON,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 738244
 
            DEPARTMENT OF TRANSPORTATION, 
 
                                                  A P P E A L
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            STATE OF IOWA, 
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            2901,  4100
 
            District court remanded case to agency after finding that 
 
            claimant had made a prima facie showing of odd-lot.  State 
 
            of Iowa failed to put on evidence of employability, 
 
            erroneously contending that the district court's ruling was 
 
            not the law of the case as the state intended to appeal that 
 
            determination after final agency action.  Held that the 
 
            district court ruling, unless timely appealed, was the law 
 
            of the case, and that claimant had shown odd-lot status.  
 
            With no evidence in the record to rebut odd-lot, claimant 
 
            found to be permanently totally disabled.  
 
            
 
            1701
 
            Also held that state was entitled to credit for payments to 
 
            claimant under long term disability plan to avoid double 
 
            recovery by claimant.
 
            
 
            2901
 
            Reversed deputy's admission of evidence on psychiatric 
 
            injury, as such was beyond the scope of the remand order and 
 
            the hearing assignment order.  Defendant did not have proper 
 
            notice that a psychiatric injury would be considered at the 
 
            hearing.  
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         LARRY P. OLSON,
 
         
 
              Claimant,
 
                                         File No. 738244
 
         VS.
 
         
 
         DEPARTMENT OF TRANSPORTATION,   D E C I S I 0 N
 
         
 
              Employer,                         O N
 
         and
 
         
 
         STATE OF IOWA,                     R E M A N D
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              On August 25, 1983, claimant filed a petition in arbitration 
 
         alleging a back injury arising out of and in the course of his 
 
         employment with the Iowa Department of Transportation.  A hearing 
 
         was thereafter held on May 9, 1985.  A deputy industrial 
 
         commissioner filed an Arbitration Decision in the matter on June 
 
         27 1985.  This decision, issued before the Iowa Supreme Court's 
 
         opinion in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (1985), 
 
         found that claimant had sustained an injury arising out of and in 
 
         the course of his employment and had sustained a resultant 
 
         industrial disability of 25 percent of the body as a whole.  The 
 
         decision also ordered that defendants take what credit was 
 
         appropriate for payments under Iowa Code sections 85.38(2) and 
 
         (4).  Following an appeal by claimant, the industrial 
 
         commissioner filed an Appeal Decision on October 30, 1986.  The 
 
         commissioner found that the evidence in the case did not support 
 
         a prima facie case for including claimant in the odd-lot category 
 
         under Guyton and held that claimant had sustained a 25 percent 
 
         industrial disability to the body as a whole.  Defendants were 
 
         allowed to take whatever credit they believed appropriate for 
 
         long-term' disability payments in accordance with Iowa Code 
 
         section 85.38(2), specifying further that if claimant believed 
 
         the credit taken was improper he could petition the agency for 
 
         relief.  The commissioner further reached the same result with 
 
         respect to credit for sick leave benefits under Iowa Code section 
 
         85.38(3), but ruled that defendants could not
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 2
 
         
 
         
 
         take a credit due to claimant's use of his vacation entitlement.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant subsequently petitioned the Iowa District Court for 
 
         Linn County for judicial review.  A ruling was thereafter filed 
 
         by Judge Ansel J. Chapman on November 9, 1988.  Judge Chapman 
 
         noted that the testimony of Patricia McCollum to the effect that 
 
         claimant had no transferable skills marketable in the Cedar 
 
         Rapids area and was unable to be employed in the Cedar Rapids 
 
         labor market given his restrictions in itself established a prima 
 
         facie case on the odd-lot issue and that the industrial 
 
         commissioner's holding to the contrary was an error of law.  
 
         Judge Chapman subsequently remanded the case to the agency for 
 
         the taking of additional evidence as might be deemed appropriate 
 
         by the parties in light of Guyton so that a definitive ruling 
 
         could be made by the agency on a complete record.
 
         
 
              The court further ruled that since the cause was being 
 
         remanded anyway, it was appropriate for parties to present 
 
         evidence on the issue of credits so that a specific ruling might 
 
         be rendered as to each item which respondent might claim  as a 
 
         credit.
 
         
 
              The remand order specified that the cause was remanded for 
 
         the reception of further evidence on the odd-lot doctrine issue 
 
         and the credit issue.  In compliance therewith, the cause came on 
 
         for hearing in Des Moines, Iowa, on April 13, 1989.  The case was 
 
         considered fully submitted at the close of hearing, both parties 
 
         filing briefs.
 
         
 
              The record in this proceeding, in addition to the record 
 
         made at the time of the original arbitration hearing, includes 
 
         claimant's exhibits 2-6, 2-7, 2-8A, 2-8B, 2-8C, 2-10, 2-13; 
 
         defendants' exhibits T, Y, Z, AA; the testimony of Nancy Ford.
 
         
 
              Claimant's exhibits 2-8 and 2-9 were offered but excluded 
 
         upon objection.
 
         
 
              Claimant's exhibits 2-12 and defendants' exhibits U, V, W 
 
         and X were offered, but ruling was reserved on the objections 
 
         interposed at hearing.  Claimant's exhibit 2-12 is hereby 
 
         admitted except for attached deposition exhibit 2, which is 
 
         excluded because it was not timely served in compliance with the 
 
         hearing assignment order filed herein on February 22, 1989. 
 
         Defendants' exhibit U is admitted and the objections thereto 
 
         overruled.  Objections to defendants' exhibits V, W and X are 
 
         sustained for the reason that the exhibits were not timely served 
 
         pursuant to the hearing
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 3
 
         
 
         
 
         assignment order.  Defendants take the position that those three 
 
         exhibits are properly admissible as rebuttal within the meaning 
 
         of the hearing assignment order.  However, paragraph 6 of the 
 
         hearing assignment order distinguishes between written exhibits 
 
         and witnesses.  The order provides that witnesses not listed on a 
 
         timely witness list will be permitted to testify if their 
 
         testimony is clearly rebuttal. There is no similar provision with 
 
         respect to written documents.  The hearing deputy is without 
 
         jurisdiction to modify the order of any other deputy; these 
 
         exhibits must be excluded pursuant to the provisions of the 
 
         hearing assignment order.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Prior to the original arbitration hearing of May 9, 1985, an 
 
         order assigning the matter for hearing bifurcated the issue of 
 
         penalty benefits under Iowa Code section 86.13.  As claimant 
 
         prevailed as to his entitlement to weekly benefits for healing 
 
         period and permanent disability, this cause shall also be 
 
         returned to the assignment docket for further proceedings as to 
 
         the penalty issue.  In addition, claimant subsequently filed a 
 
         petition for review-reopening on June 22, 1988, alleging that 
 
         psychological difficulties relating to the injury had increased 
 
         his industrial disability.
 
         
 
                                      ISSUES
 
         
 
              The sole issues presented for resolution are whether 
 
         claimant is entitled to permanent total disability benefits 
 
         pursuant to the odd-lot theory adopted in Guyton v. Irving Jensen 
 
         Co., and the extent to which defendants are entitled to credit 
 
         for payments made pursuant to Iowa Code section 85.38 and 
 
         subsections thereunder.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The undersigned deputy, having heard the testimony and 
 
         considered all of the evidence, finds:
 
         
 
              The Appeal Decision filed on October 30, 1986, found the 
 
         following facts to be established:
 
         
 
              1. Claimant is 41 years of age and graduated from high 
 
         school in 1962.
 
         
 
              2. Claimant has had no formal training after high school 
 
         except a two month data processing course shortly after his 
 
         graduation from high school.
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 4
 
         
 
         
 
              3. Claimant worked on cars with his father from about age 
 
         ten until 1965; he also has worked as a frozen food manager for 
 
         about one year.
 
         
 
         * * *
 
         
 
              7. On May 13, 1983 James W. Turner, M.D., performed a 
 
         laminectomy at L5-Sl.
 
         
 
         * * * 
 
         
 
              10. On April 27, 1984, claimant had a decompressive 
 
         laminectomy at the L4-L5 level and further widening was done at 
 
         L5-Sl.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         * * *
 
         
 
              13. Claimant lacks motivation to improve his functional 
 
         level.
 
         
 
              14. Claimant lacks motivation to return to work.
 
         
 
              15. Claimant has permanent lifting, stooping, bending, 
 
         walking, and standing restrictions because of his injury of 
 
         January 14, 1983, the aggravation thereof and two surgeries.
 
         
 
              The Appeal Decision further noted that the earlier 
 
         Arbitration Decision adequately set out the salient evidence 
 
         which was for that reason not set forth therein.  The Appeal 
 
         Decision further noted:
 
         
 
              James W. Turner, M.D., stated that claimant has a
 
              30 percent permanent partial impairment to the
 
              body as a whole and that this impairment is
 
              directly related to his injury of January 14,
 
              1983; the aggravation at the swimming pool; and
 
              his two surgeries in 1983 and 1984.  He restricted
 
              claimant to lifting no more than 20 to 30 pounds;
 
              no bending or stooping; and avoid periods of
 
              prolonged standing or walking.  However, he stated
 
              that claimant's bowling activities "raise a very
 
              big question" about the cause of claimant's
 
              condition.
 
         
 
              Claimant's previous work experience includes
 
              working in his father's gas station doing
 
              automotive repair until 1965; working as a frozen
 
              food manager in a grocery store from 1965 to 1966;
 
              serving four years in the Air National Guard
 
              during the 1960's; and being employed with the
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 5
 
         
 
         
 
              Iowa DOT (formerly the Iowa State Highway
 
              Commission) since April 1966.
 
         
 
         
 
         
 
              On October 30, 1984 claimant was interviewed by a
 
              certified rehabilitation nurse, Patricia McCollum.
 
              She subsequently prepared a report in which she
 
              concluded that based on her study of the  Cedar
 
              Rapids area job market and claimant's physical
 
              restrictions and limitations claimant was not
 
              employable and had no transferrable skills in the
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Cedar Rapids area job market at that time.
 
         
 
              However, Judy Steenhoek, a rehabilitation
 
              specialist, testified that in her opinion claimant
 
              is employable but that he needs assistance to get
 
              into a routine and needs help with job placement.
 
              She also concluded that "Mr. Olson is not highly
 
              motivated to return to work or even try.of
 
              However, she did acknowledge that a person out of
 
              work for two years becomes frustrated.
 
         
 
              In his analysis, the industrial commissioner found that the 
 
         evidence did not support a prima facie case for including 
 
         claimant in the odd-lot category and that the evidence in the 
 
         record and as set out in the Arbitration Decision concerning 
 
         claimant's employability and motivation showed claimant to be 
 
         employable with some assistance and cooperation on his part.
 
         
 
              The summary of evidence set forth in the Arbitration 
 
         Decision of June 27, 1985 included:
 
         
 
              Larry P. Olson, the claimant, testified that he
 
              was born on June 14, 1944 and graduated from high
 
              school in 1962.  After high school graduation, he
 
              had a two or three month course with IBM learning
 
              about data processing; however, he never used this
 
              training because he was unable to get a job in
 
              this field.  He doubts whether the machines he
 
              learned to work with in 1962 are still in use.
 
         
 
              Claimant testified that he worked for his father
 
              in a gas station, from the time he was ten or
 
              eleven years old until 1965, doing automotive
 
              repair.  From 1965 to 1966 he worked as a frozen
 
              food manager at a grocery store and during the
 
              1960's was in the Air National Guard for four
 
              years.  In April of 1966 he started work for the
 
              Iowa State Highway Commission (now Iowa Department
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 6
 
         
 
         
 
              of Transportation) in Ames in the design soil
 
              department and worked in this capacity for about
 
              four years. From 1970 to 1975 he worked out of
 
              Iowa City for the Iowa Department of
 
              Transportation as a grade inspector and at the end
 
              of this period was transferred to Cedar Rapids to
 
              be a mechanic's helper.
 
         
 
              This mechanic's helper job required claimant to do
 
              assignments, given to him by a  mechanic, such as
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              fabrication work, welding, electrical work, brake
 
              jobs and working on springs.  This required a
 
              "great deal of lifting and was all heavy work."
 
              At some point he was promoted and worked as a
 
              mechanic until April of 1983.  He was terminated
 
              in December of 1984; however, he had stopped
 
              performing any work in April of 1983.
 
         
 
              * * * 
 
         
 
              Claimant testified that on May 3, 1985 he
 
              attempted to complete a merit test to be a
 
              driver's examiner, but was unable to complete the
 
              three hour test because of back pain.  He looks at
 
              employment ads in the classified section even
 
              though he has never been released by a doctor.
 
              Dr. Turner told him "to do what he could do."
 
              However, he has not sought employment after his
 
              injury in January of 1983.  See defendants'
 
              exhibit D, pages 42-43.  He has not been employed
 
              since April of 1983; however, in November of 1983
 
              he started receiving about $875 per month in
 
              disability payments.  He started receiving
 
              workers' compensation in November of 1984.  He has
 
              no selling or office experience, but attended
 
              seminars or courses while working for the
 
              Department of Transportation, sponsored by the
 
              agency, on subjects such as bridge or grade
 
              inspection.
 
         
 
              * * *
 
         
 
              Patricia McCollum testified she owns and has run a
 
              rehabilitation service for the last three years
 
              and that she has studied the job market in the
 
              Cedar Rapids area.  On October 30, 1984, she
 
              conducted an interview of claimant and
 
              subsequently wrote a report dated December 19,
 
              1984.  See claimant's exhibit 6.  She concluded
 
              that claimant was not employable in the Cedar
 
              Rapids area given his limitations and
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 7
 
         
 
         
 
              restrictions.  She concluded that it "would be
 
              inappropriate to work in job placement given
 
              claimant's physical condition."
 
         
 
              Kathy Olson testified that she married claimant on
 
              September 5, 1971 and that after his auto accident
 
              in 1972 he was able to return to work without
 
              restrictions.  Also, in 1977 after his slip and
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              fall, he returned to work without restrictions.
 
         
 
              Mrs. Olson testified that in the winter of 1984
 
              claimant would on occasion use the snowblower for
 
              thirty to sixty minutes.  After such activity, he
 
              would take a pain pill or two, stretch out in the
 
              recliner, and sometimes go to bed.  He also bowled
 
              even though he was in pain.
 
         
 
              Roger Hyndman testified that he was an employee of
 
              American Investigations of Cedar Rapids from
 
              November 1, 1984 through March 7, 1985 and
 
              American Investigations was retained by defendants
 
              herein to investigate claimant.  On February 5,
 
              1985, he took pictures of claimant in the morning
 
              (in the morning claimant was outside for about
 
              forty minutes) and in the afternoon (in the
 
              afternoon claimant was outside for twenty minutes)
 
              while he was removing snow from his driveway or
 
              sidewalk with a snow shovel.  He also observed
 
              claimant for about forty minutes using a
 
              snowblower to remove snow on February 11, 1985 and
 
              photographed him on this occasion.  (Exhibit N is
 
              the photos Hyndman took on the three occasions
 
              mentioned above; exhibits 0 and P are the same
 
              photos but are enlargements.)
 
         
 
              Hyndman compared claimant's manner of walking on
 
              February 5, 1985 and February 11, 1985 with his
 
              gait at time of hearing (May 9, 1985) and at the
 
              time claimant's deposition was taken on May 7,
 
              1985.  (Def. ex. E)  He stated that claimant
 
              "carries himself differently in the way he walks"
 
              and that "his gait is slower" at time of hearing
 
              as compared to February of 1985.  He also had
 
              "more bending action in his back and knees on
 
              February 5, 1985.11   On February 11, 1985, he
 
              "seemed to walk quite normally.  He could move the
 
              snowblower up to a 30 degree angle.  He pulled to
 
              start the snowblower and had to pull two or three
 
              times."  In summary, he stated that on February 5,
 
              1985 and February 11, 1985, claimant's movements
 
              "appeared to be unhindered."
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 8
 
         
 
         
 
              David M. Butler testified that he is a private
 
              investigator and was Mr. Hyndman's employer at the
 
              time Hyndman investigated claimant.  During the
 
              afternoon of February 5, 1985, Butler observed
 
              claimant shoveling snow and that "his movements
 
              did not seem to be restricted in any manner as he
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              was bending, stooping and throwing snow to the
 
              side."   On February 11, 1985, Butler and Hyndman
 
              observed claimant using a snowblower at his
 
              property and doing the neighbor's driveway.
 
         
 
              * * *
 
         
 
              James Phinney testified that he is the resident
 
              maintenance engineer for the Iowa Department of
 
              Transportation in Cedar Rapids and that claimant's
 
              employment was terminated on December 7, 1984
 
              pursuant to a union contract.  (See claimant's
 
              exhibit 21)
 
         
 
              Judy Steenhoek testified that she is a
 
              rehabilitation specialist with a M.A. in this area
 
              from Drake University.  She first met with
 
              claimant on November 9, 1984 and then again in
 
              March of 1985.  Defendants have retained her, but
 
              it was not until January of 1985 that she was told
 
              to do what she had to do to get claimant a job.
 
              She acquainted herself with the restrictions given
 
              to claimant by James W. Turner, M.D.
 
         
 
              Steenhoek testified that claimant is not
 
              interested in a specific exercise program.  She
 
              told him about a dislocated workers' center in
 
              Cedar Rapids but he did not initially go to this
 
              center because she only gave him the phone number
 
              and not the address.  She then went to the center
 
              herself to make arrangements for claimant to
 
              complete an application.
 
         
 
              Steenhoek testified that she contacted a skills
 
              center at Kirkwood Community College on claimant's
 
              behalf and agreed to pay for his enrollment at
 
              this center; however, it was not until May 3,
 
              1985, just before hearing, that she was able to
 
              convince him to go to this center.
 
         
 
              Steenhoek stated her opinion that claimant is
 
              employable but that he needs assistance to get
 
              into a routine and needs help with job placement.
 
              However, she concluded that "Mr. Olson is not
 
              highly motivated to return to work or even try."
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 9
 
         
 
         
 
              She acknowledged, however, that a person off work
 
              for two years becomes frustrated.
 
         
 
              * * *
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Turner stated that claimant has a 30 percent
 
              permanent partial impairment to the body as a
 
              whole and that this impairment is directly related
 
              to his injury of January 14, 1983; the aggravation
 
              at the swimming pool; and his two surgeries in
 
              1983 and 1984.  Prior to the swimming pool
 
              incident, he stated that a 20 percent impairment
 
              rating was appropriate.  He restricted claimant to
 
              lifting no more than 20 to 30 pounds; no bending
 
              or stooping; and to avoid periods of prolonged
 
              standing for [sic] walking.  However, at page 53
 
              of his deposition (claimant's exhibit 14) he
 
              states that claimant's bowling activities "raise a
 
              very big question" about the cause of claimant's
 
              condition.
 
         
 
              The deposition of Patricia McCollum is in evidence as 
 
         claimant's exhibit 2-12, although deposition exhibit 2 attached 
 
         thereto has been excluded.  This deposition was  taken April 7, 
 
         1989.
 
         
 
              Ms. McCollum testified that her curriculum vitae since her 
 
         previous testimony included certification as an insurance 
 
         rehabilitation specialist, publication of materials, teaching 
 
         experience in graduate school and service as the national 
 
         president of the Association of Rehabilitation Nurses.  She 
 
         indicated that she had reviewed various records, including the 
 
         report of a psychologist, J. D. Brewer, Ph.D., and had seen 
 
         claimant again.
 
         
 
              Ms. McCollum indicated further that she had reviewed the 
 
         previous depositions and testimony of Judy Steenhoek, but 
 
         disagreed with Steenhoek's belief that claimant was qualified for 
 
         three positions:  engineering office assistant I and II and 
 
         driver's license examiner.  Her reason for disagreement was that 
 
         claimant's physical capacity and emotional status prevent him 
 
         from competitive employment at this time.  She testified:
 
         
 
              Q. Can you tell me what your findings were in
 
              your most recent assessment?
 
         
 
              A. My conclusion at reassessment and after review
 
              of the medical information and psychological
 
              reports was that his current physical and
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 10
 
         
 
         
 
              psychological status combined to prevent him from
 
              returning to any type of gainful employment.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              The rationale for that is that his physical
 
              condition has deteriorated since I saw him in
 
              1984, that the chronic pain management treatment
 
              that was recommended at that time was not
 
              completed, and that subsequent depression, fear
 
              and isolation have resulted in decreased ability
 
              for him to participate in activities of daily
 
              living and work, and not only are the physical
 
              limitations barriers to return to work, but the
 
              psychological status confounds those limits.
 
         
 
         (McCollum deposition, page 11, line 1 through line 19)
 
         
 
              And further:
 
         
 
              Q. Do you feel that there are any jobs available
 
              to Mr. Olson?
 
         
 
              A. No, I do not.
 
         
 
              Q. In taking into account Larry Olson's physical
 
              impairment, education, training, age and mental
 
              capacity, is he able to perform services that
 
              would result in steady employment in some
 
              reasonably stable or recognized area of
 
              employment?
 
         
 
              A. I do not believe he is.
 
         
 
              Q. Do you believe that job seeking by Mr. Olson
 
              would be fruitful?
 
         
 
              A. No, I do not.
 
         
 
         (McCollum deposition, page 12, line 14 through page 13, line
 
         1)
 
         
 
              However, on cross-examination, Ms. McCollum specified that 
 
         her current opinion was based not entirely on claimant's physical 
 
         condition, but also on his psychological condition.  Further, she 
 
         agreed that claimant had done nothing in any attempt to become 
 
         employable since she had last seen him in 1985.  She explained 
 
         further that claimant had not sought further employment because 
 
         of Dr. Turner's warning that he might become wheelchair bound if 
 
         he did not maintain his physical restrictions and that claimant 
 
         tends to equate pain with further damage so he avoids activities 
 
         that cause pain.
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 11
 
         
 
         
 
              Claimant was referred to the University of Iowa Hospitals 
 
         and Clinics Spine Diagnostic and Treatment  Center for a 
 
         functional capacity evaluation on December 21, 1988. Dr. James N. 
 
         Weinstein, director of the center, wrote claimant on January 5, 
 
         1989.  Dr. Weinstein noted that claimant was "very 
 
         deconditioned."  He was moderately  self-limiting, able to lift 
 
         only six pounds with his arms.  Claimant could tolerate sitting 
 
         with a back support for approximately 30 minutes.  "Our therapist 
 
         felt that there would be very little in the way of employment 
 
         that you could do in your present condition; that it would take a  
 
         sincere effort on your part to endure the discomfort that would 
 
         be associated with reconditioning."  Dr. Weinstein further noted 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         that the staff psychologist felt that claimant could work on a 
 
         less self-defeating attitude and that the physicians did not feel 
 
         surgical intervention was indicated and that there were many 
 
         psychosocial problems which were possibly contributing to 
 
         continuing low back pain.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Weinstein further pointed out that claimant believed 
 
         himself to be 100 percent disabled, and without a complete 
 
         attitude change and a very extensive long-term recondition 
 
         program, "there would be very little that you would be capable of 
 
         doing.  At this time we do not see you as being an appropriate 
 
         rehabilitation candidate because of your long period of 
 
         inactivity and your attitude."
 
         
 
              Dr. Weinstein wrote claimant again on January 24, 1989 for 
 
         clarification.  He indicated that claimant cannot presently 
 
         engage in gainful employment and that his overall physical 
 
         condition, muscle strength, cardiovascular conditioning and 
 
         attitude "certainly" rules out immediate employment.  However, 
 
         Dr. Weinstein further opined that all of the above factors were 
 
         subject to change and  improvement based on motivation and that 
 
         claimant had the physiological capability to significantly 
 
         improve his overall ability  to function.  Dr. Weinstein wrote 
 
         further that in his opinion and in the opinion of the spine team, 
 
         claimant had the capability for rehabilitation and that the 
 
         structural situation with his back was not the primary 
 
         disability.  "The primary disability at this time involves 
 
         muscular weakness and cardiovascular deficiency and lack of 
 
         proper flexion due to inactivity, and frankly, a quite negative 
 
         attitude on your part."  Dr. Weinstein further noted  that 
 
         claimant's 100 percent disability at the present time was in part 
 
         self-inflicted.
 
         
 
              Clinical psychologist Eugene F. Gauron, Ph.D., was a member 
 
         of the spine team.  He wrote on December 22, 1988 that claimant 
 
         seemed frozen in a self-defeating position and
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 12
 
         
 
         
 
         was essentially impervious to external influence and locked into 
 
         a way of being which offered him few satisfactions.
 
         
 
              Ted Wernimont, M.S.W., is rehabilitation director of the 
 
         spine Diagnostic and Treatment Center.  He wrote on December 22, 
 
         1988, that claimant was absolutely convinced that he was a 
 
         physical disaster and would continue to worsen with time.  He 
 
         believed claimant represented "the most tragic kind of 
 
         consequent" that happens to industrially injured workers who 
 
         perceive the system as failing them.  Claimant showed absolutely 
 
         no interest in any type of a positive approach to his problem.  
 
         Wernimont believes that no individual is beyond rehabilitation 
 
         and that if claimant were to take a positive view and work 
 
         towards a series of physical and vocational goals, he could find 
 
         a vocational option well within his capabilities.  "However, I do 
 
         not see this man being able to approach rehabilitation at this 
 
         time because of four years of inactivity, anger and bitterness."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              James W. Turner, M.D., wrote on October 6, 1988 that 
 
         claimant had been seen on the day before and that his condition 
 
         was basically unchanged since his last visit.  He noted that 
 
         claimant was in an extreme deconditioned state and that while he 
 
         was disabled and unable to work, he did not feel that this was 
 
         simply related to the back injury, "but that his entire physical 
 
         and mental condition must be considered in arriving at an 
 
         opinion."
 
         
 
              Letters of clinical psychologist J. D. Brewer, Ph.D., are in 
 
         evidence bearing dates of July 9 and October 20, 1987 and October 
 
         20, 1988.  Dr. Brewer's letter of April 6, 1989 was excluded from 
 
         evidence (plaintiff's exhibit  2-8).  Dr. Brewer was of the view 
 
         that claimant's depression and psychomotor retardation make it 
 
         very difficult for him to accomplish even the simplest tasks.  
 
         Depression seriously restricts claimant's ability to function on 
 
         a day-to-day basis.  Dr. Brewer opined that claimant was 
 
         incapable of performing any work on a full-time basis, both from 
 
         loss of physical functioning and depressive symptomatology.
 
         
 
              Dr. Brewer's letter of October 20, 1987 contains the 
 
         following language:
 
         
 
              Summary:  Larry Olson is a patient who is quite
 
              disabled.  This disability appears to be a
 
              combination of both his physical limitations and
 
              physical disability, and his major depression as a
 
              result of those physical disabilities.
 
         
 
              Dr. Brewer's letter of October 20, 1988 reiterated that 
 
         claimant was unable to work due to his response to pain and
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 13
 
         
 
         
 
         his depression.  He felt that claimant's condition had 
 
         deteriorated over the preceding six months.  He felt that 
 
         claimant had cooperated with treatment to the fullest extent 
 
         possible considering his depression, dysphoria and feelings of 
 
         hopelessness.  His prognosis was poor.
 
         
 
              Neurologist Winthrop S. Risk, M.D., wrote on May 28, 1985 
 
         that claimant was depressed and that while the etiology of his 
 
         symptoms was uncertain, his condition appeared to have 
 
         deteriorated substantially compared to a previous examination on 
 
         November 28, 1983.  He wrote:
 
         
 
              In addition, the patient is extremely depressed.
 
              Under the circumstances, it would be difficult to
 
              sort out the relative contributions of these
 
              findings to the patient's overall impairment.  By
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              his account, the back pain is the primary problem,
 
              and in fact during the examination the patient was
 
              constantly shifting his weight getting up and
 
              standing, walking short steps, and returning to
 
              sitting position.  On this basis, the patient
 
              would appear to be totally impaired for any type
 
              of activity.
 
         
 
              Dr. Risk went on to state that even if claimant's present 
 
         degree of mechanical injury was not disabling, from a 
 
         psychological and psychiatric point of view, he was likely to 
 
         remain disabled indefinitely even with vigorous treatment.  Dr. 
 
         Risk further noted that claimant's marital situation was 
 
         disturbed and that this might contribute to his degree of overall 
 
         impairment.  Limitations would be the same as those prescribed by 
 
         Dr. Turner:  sitting and standing according to the patient's 
 
         tolerance, no lifting, stooping or bending.
 
         
 
              Dr. Risk stated finally that claimant was totally impaired 
 
         for any occupation irrespective of his  education, training and 
 
         experience on either a full-time or  part-time basis and would 
 
         not be able to perform light work or sedentary work.
 
         
 
              This evidence establishes and it is found that claimant is 
 
         currently physically unable to return to work, but is physically 
 
         capable of undertaking rehabilitation and work hardening programs 
 
         that would permit him to return to competitive employment such as 
 
         was described by Judy Steenhoek in her testimony at the first 
 
         hearing.  However, it is further found that claimant currently 
 
         lacks the capacity to undertake any rehabilitative program 
 
         because of his severe depression.  The issue of causal nexus 
 
         between
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 14
 
         
 
         
 
         the work injury and claimant's undisputed depressive state will 
 
         be discussed in the next section of this decision.
 
         
 
              Claimant has and is continuing to receive long-term 
 
         disability benefits through a plan funded wholly by the state of 
 
         Iowa and administered by Principal Mutual Life Insurance Company.  
 
         Except for one month, claimant has received $875.52 less federal 
 
         income tax each month since November 26, 1983. The record does 
 
         not disclose claimant's net receipt of long-term disability 
 
         benefits.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The law of this case has been established by Judge Chapman's 
 
         ruling on claimant's petition for judicial review: Patricia 
 
         McCollum's testimony that claimant did not have any transferrable 
 
         skills marketable in the Cedar Rapids area and was not able to be 
 
         employed in the Cedar Rapids labor market given his restrictions 
 
         in itself established a prima facie case on the odd-lot issue.  
 
         However, the parties disagree strenuously as to the affect of a 
 
         determination that a prima facie case has been made.  Claimant 
 
         takes the position that the burden is upon defendants to prove 
 
         that claimant is able to obtain regular gainful employment.  
 
         Claimant suggests that absent introduction of further credible 
 
         evidence by defendants, a finding of permanent total disability 
 
         is "mandated."  However, a review of Guyton v. Irving Jensen Co., 
 
         373 N.W.2d 101 (Iowa 1985) shows the unsoundness of this 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         argument.  Claimant is entitled to a finding of total disability 
 
         only "[i]f the employer fails to produce such evidence and the 
 
         trier of fact finds the worker does fall in the odd-lot 
 
         category." [Emphasis  supplied.]  Guyton makes clear that the 
 
         burden of persuasion on the issue of industrial disability always 
 
         remains with the worker.  That is to say, while Ms. McCollum's 
 
         testimony may, in this case, be sufficient to swing the burden of 
 
         producing evidence on the available employment issue to 
 
         defendants, it does not necessarily mandate a finding that 
 
         claimant has met his burden of persuasion, particularly where 
 
         there is contrary evidence on the same issue.  Rather, a prima 
 
         facie case is merely one which will support a finding in the 
 
         party's favor if the evidence to the contrary be disregarded.  
 
         Koeller v. Reynolds, 344 N.W.2d 556 (Iowa App. 1983).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Under Guyton, 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 and is 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.  A person
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 15
 
         
 
         
 
         who has no reasonable prospect of steady employment has no 
 
         material earning capacity.
 
         
 
              Defendants are of the view that claimant could work at any 
 
         of the positions suggested by Judy Steenhoek.  Claimant has been 
 
         restricted to lifting no more than 20-30 pounds, no bending or 
 
         stooping, and against periods of prolonged walking or standing.  
 
         Dr. Weinstein, director of the University of Iowa Hospitals and 
 
         Clinics Spine Diagnostic and Treatment Center, saw claimant in 
 
         December, 1988 and stated that claimant cannot presently engage 
 
         in gainful employment and that his overall physical condition, 
 
         muscle strength, cardiovascular conditioning and attitude rule 
 
         out immediate employment, although all of the above factors were 
 
         subject to change and improvement based on motivation.  Dr. 
 
         Brewer wrote that claimant was disabled from work in his extreme 
 
         deconditioned state, and that claimant's entire physical and 
 
         mental condition must be considered in reaching an opinion.  Ted 
 
         Wernimont, rehabilitation director of the Spine Diagnostic and 
 
         Treatment Center, believed claimant to be unable to approach 
 
         rehabilitation at this time, essentially because of his emotional 
 
         problems.  Clinical psychologist Eugene Gauron felt claimant was 
 
         frozen in a self-defeating position and essentially impervious to 
 
         external influence.  Clinical psychologist J. D. Brewer stated 
 
         that depression seriously restricted claimant's ability to 
 
         function on a day-to-day basis and that claimant was incapable of 
 
         performing any work on a full-time basis, both from loss of 
 
         physical functioning and depressive symptomatology.  Neurologist 
 
         Winthrop Risk felt in 1985 that claimant was totally impaired on 
 
         either a full-time or part-time basis and was likely to remain so 
 
         indefinitely, even with vigorous treatment, both with respect to 
 
         his degree of mechanical injury and from a psychological and 
 
         psychiatric point of view.
 
         
 
              The far greater weight of the evidence establishes that 
 
         claimant is currently unable to work, but that this complete 
 
         inability is based both on physical and psychological factors.  
 
         Therefore, the key issue is whether those psychological factors 
 
         bear a causal relationship to the work injury. Psychological 
 
         impairments themselves have long been compensable in Iowa when 
 
         caused by a work injury.  Deaver v. Armstrong Rubber Co., 170 
 
         N.W.2d 455 (Iowa 1969).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that his injury 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
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 16
 
         
 
         
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The only direct evidence in this record as to that causal 
 
         relationship is from Dr. Brewer, who opined that claimant's 
 
         disability appeared to be a combination of both his physical 
 
         limitations "and his major depression as a result of those 
 
         physical disabilities."
 
         
 
              Dr. Brewer is a clinical psychologist and not a medical 
 
         practitioner.  Therefore, it is critical to determine how much 
 
         weight should be given his opinion on this issue, since it stands 
 
         completely unrebutted.  A similar question arose in Saunders v. 
 
         Cherry Burrell Corp., II Iowa Industrial Commissioner Report 333 
 
         (App. Decn. 1982).  A deputy industrial commissioner appointed to 
 
         write the final agency decision discussed the issue of whether a 
 
         psychological injury had been sustained based on the opinion of a 
 
         "qualified psychologist," a Ph.D.  The decision noted that the 
 
         psychologist had not been aware of claimant's recent work 
 
         history, particularly that claimant was back doing basically the 
 
         same work as before.  That evidence diminished the weight of the 
 
         psychologist's opinion, and it was also held that a psychologist 
 
         might have expertise in the area of the mind, but that the record 
 
         did not reveal expertise in the relationship between the mind and 
 
         the body, such as would be possessed by a psychiatrist.  The 
 
         psychologist's opinion was given little weight.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              In reliance on that authority, this deputy has reduced the 
 
         amount of weight to be given Dr. Brewer's opinion.  Nonetheless, 
 
         it is the only opinion available, and it is of at least some 
 
         weight.  Note also that claimant in this case had not returned to 
 
         work, there is no indication that Dr.
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 17
 
         
 
         
 
         Brewer was unaware of his recent history, and other 
 
         professionals, medical and otherwise, have recognized that 
 
         claimant does have depressive and other psychological problems.
 
         
 
              Considering these factors then, it is held that claimant has 
 
         met his burden of persuasion in establishing that his 
 
         psychological problems are in substantial part caused by the work 
 
         injury and his resultant physical impairment.  Taken together, 
 
         the physical and psychological problems now and for the 
 
         foreseeable future disable  claimant from accepting either 
 
         full-time or part-time employment. That being the case, 
 
         defendants have not shown that there exists any regular, 
 
         well-known branch of the labor market in which claimant could 
 
         compete.  Said otherwise, claimant is totally and permanently 
 
         disabled, even without recourse to the odd-lot theory under the 
 
         authority of the cases represented by Diederich v. Tri-City R. 
 
         Co., 219 Iowa 587, 258 N.W. 899 (1935). Of course, the limits of  
 
         this  deputy's authority might be arguable.  The remand order 
 
         specified that the odd-lot issue should be considered, but 
 
         allowed  the parties to present additional evidence.  Clearly, 
 
         this deputy lacks the power to issue a decision as to the degree 
 
         of claimant's disability at variance with the appeal decision, at 
 
         least based on the same evidence.  However, the record was opened 
 
         to new evidence, and additional evidence both as to claimant's 
 
         physical and psychological status has been received.  It should 
 
         also be recognized that a review-reopening petition has been 
 
         filed and it would be a waste of agency resources to consider the 
 
         evidence yet again if unnecessary.  Therefore, this deputy 
 
         concludes that he does have the authority to consider the 
 
         additional evidence and find claimant permanently and totally 
 
         disabled, even without recourse to the odd-lot theory.  It is so 
 
         held.
 
         
 
              The remand decision also instructs the agency to make 
 
         specific findings as to defendants' credits under Iowa Code 
 
         section 85.38(2).  That section of the law provides:
 
         
 
              In the event the disabled employee shall receive
 
              any benefits, including medical, surgical or
 
              hospital benefits, under any group plan covering
 
              nonoccupational disabilities contributed to wholly
 
              or partially by the employer, which benefits
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              should not have been paid or payable if any rights'
 
              of recovery existed under this chapter, chapter
 
              85A or chapter 85B, then such amounts so paid to
 
              said employee from any such group plan shall be
 
              credited to or against any compensation payments,
 
              including medical, surgical or hospital, made or
 
              to be made under this chapter, chapter 85A or
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 18
 
         
 
         
 
              chapter 85B.  Such amounts so credited shall be
 
              deducted from the payments made under these
 
              chapters.  Any nonoccupational plan shall be
 
              reimbursed in the amount so deducted.  This
 
              section shall not apply to payments made under any
 
              group plan which would have been payable even
 
              though there was an injury under this chapter or
 
              an occupational disease under chapter 85A or an
 
              occupational hearing loss under chapter 85B.  Any
 
              employer receiving such credit shall keep such
 
              employee safe and harmless from any and all claims
 
              or liabilities that may be made against them by
 
              reason of having received such payments only to
 
              the extent of such credit.
 
         
 
              The long-term disability program established under Iowa Code 
 
         section 79.20 for state employees is a group plan covering 
 
         nonoccupational disabilities.  It is clear both from that section 
 
         and the contract in evidence that benefits will not be fully 
 
         payable if the injury was covered under workers' compensation 
 
         statutes.  Section 79.20 provides that benefits are reduced by 
 
         workers' compensation, if applicable. The contract, in section 
 
         13, provides for offsetting benefits by reason of the receipt of 
 
         disability benefits under "workers" compensation."  The 
 
         industrial commissioner has held that defendants are entitled to 
 
         a credit for state of Iowa long-term disability plan.  Lowe v 
 
         Iowa State Penitentiary, file numbers 673326, 776977 and 805718 
 
         (App. Decn., December 16, 1988).  The parties are inclined to 
 
         argue whether a distinction exists between healing period 
 
         benefits and permanent partial disability benefits, claimant 
 
         being of the view that the latter should not be offset.  This 
 
         issue was recently discussed in Gritton v. Dent of Transp., file 
 
         number 751165  (Arb. Decn., December 20, 1989) as follows:
 
         
 
              As cited above, Iowa Code section 85.38(2) allows
 
              the employer a credit "to or against anv
 
              compensation payments."  (Emphasis added.)
 
              Therefore, regardless of defendants' past, current
 
              or future practices, and regardless of the
 
              provisions of any other section of the Iowa Code,
 
              section 85.38(2) includes all compensation
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              payments without distinguishing between temporary
 
              total disability benefits, healing period
 
              benefits, permanent partial disability benefits or
 
              permanent total disability benefits.  Therefore,
 
              it can only be concluded that defendants are
 
              entitled a credit against the compensation
 
              payments made to claimant for any long-term
 
              disability payments made to claimant.  Simply put,
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 19
 
         
 
         
 
              to do otherwise would be to compensate claimant
 
              twice for the same injury.
 
         
 
                        Once it is recognized that workmen's
 
                   compensation is one unit in an overall
 
                   system of wage-loss protection, rather than
 
                   something resembling a recovery in tort or
 
                   on a private accident policy, the conclusion
 
                   follows the duplication of benefits from
 
                   different parts of the system should not
 
                   ordinarily be allowed.
 
         
 
              4 Larson, Workmen's Compensation Law, SS 97.00
 
              (1984).
 
         
 
              Having decided defendants are entitled to a
 
              credit, the question becomes [sic] what is the
 
              amount of that credit.
 
         
 
              Claimant argues that the offset should apply only
 
              to the real benefits conferred upon him by virtue
 
              of the long-term disability policy since those
 
              benefits are reduced by taxes and social security
 
              disability benefits received.  Claimant must
 
              prevail on this point for to do otherwise would
 
              deny claimant the full amount of benefits to which
 
              he is entitled under the workers' compensation
 
              statute.  Iowa Code section 85.38(2) refers to
 
              "amounts so paid to said employee."  A literal
 
              interpretation of this phrase dictates the
 
              conclusion reached herein.  Therefore, defendants
 
              are entitled to a credit for the net amounts
 
              received by claimant under the long-term
 
              disability plan.  See also Giles v. Barton
 
              Solvents, Inc., file numbers 816148 and 816149,
 
              (Arbitration Decision filed August 25, 1987).
 
         
 
         
 
              This reasoning is hereby adopted in this decision.  The 
 
         record in this case does not disclose the extent of deductions 
 
         for tax withholding.  The parties must calculate the net benefits 
 
         received.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant permanent total 
 
         disability benefits at the weekly rate of two hundred nineteen 
 
         and 58/100 dollars ($219.58) commencing on January
 
         
 
         
 
         
 
         OLSON v. DEPARTMENT OF TRANSPORTATION
 
         Page 20
 
         
 
         
 
         14, 1983, and continuing during such time as claimant remains 
 
         permanently and totally disabled.
 
         
 
              Defendants shall be granted credit under Iowa Code section 
 
         85.38(2) for the net amount of all payments paid under the state 
 
         of Iowa long-term disability plan.
 
         
 
              Defendants shall pay any accrued amounts in a lump sum with 
 
         interest pursuant to Iowa Code section 85.30.
 
         
 
              Costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 30th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John L. Riccolo
 
         Attorney at Law
 
         Suite 1140, The Center
 
         425 Second Street SE
 
         Cedar Rapids, Iowa  52401
 
         
 
         Mr. David A. Ferree
 
         Assistant Attorney General
 
         Iowa Department of Transportation
 
         800 Lincoln Way
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Ames, Iowa  50010
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1108.20, 1701, 5-1804
 
                                         Filed May 30, 1990
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY P. OLSON,
 
         
 
              Claimant,
 
         
 
         VS.                                          File No. 738244
 
         
 
         DEPARTMENT OF TRANSPORTATION,                D E C I S I O N
 
         
 
                Employer,                                   O N 
 
         and
 
                                                         R E M A N D
 
         STATE OF IOWA,
 
         
 
                Insurance Carrier,
 
                Defendants.
 
         
 
         
 
         
 
         5-1804
 
         
 
              Following remand from District Court and taking of 
 
         additional evidence, claimant was found totally and permanently 
 
         disabled.
 
         
 
         1108.20
 
         
 
              Clinical psychologist's opinion that work injury was 
 
         causally related to subsequent depression was given reduced 
 
         weight because psychologist not a physician (following and 
 
         distinguishing Saunders v. Cherry Burrell Corp.), but still 
 
         carried claimant's burden of proof on the issue since it was 
 
         unrebutted, consistent with other evidence, and various 
 
         physicians agreed that claimant suffered disabling psychological 
 
         problems.
 
         
 
         1701
 
         
 
              Defendant given credit for net state of Iowa long-term 
 
         disability benefits.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         ELIZABETH E. KIRKPATRICK,
 
         
 
              Claimant,
 
                                                      FILE NO. 738250
 
         VS.
 
                                                  A R B I T R A T I 0 N
 
         WESTERN INTERNATIONAL,
 
                                                      D E C I S I O N
 
              Employer,
 
                                                           0 N
 
         and
 
                                                        R E M A N D
 
         NATIONAL UNION FIRE
 
         INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Elizabeth E. 
 
         Kirkpatrick, claimant, against Western International, employer, 
 
         and National Union Fire Insurance Company, insurance carrier, 
 
         defendants, for workers' compensation benefits as a result of an 
 
         alleged injury on March 24, 1983.
 
         
 
              On June 25, 1985, the undersigned issued an arbitration 
 
         decision in this matter which was affirmed with some modification 
 
         by the industrial commissioner on June 30, 1986.  A petition for 
 
         judicial review was then filed which resulted in an order 
 
         remanding the case back to this agency for further findings as to 
 
         the permanency of the condition found work related in the 
 
         arbitration and appealed decision.  According to the remand order 
 
         of the district court and of the industrial commissioner to this 
 
         deputy, this deputy is to consider only the evidence presented at 
 
         the arbitration hearing held on March 14, 1985 and March 18, 1985 
 
         and new evidence consisting of five pages of clinical notes dated 
 
         August 27, 1986 and a two page letter dated September 5, 1986 
 
         from Curtis M. Steyers, M.D.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to the decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.
 
         
 
              The summary of evidence contained in the arbitration 
 
         decision of June 21, 1985 as adopted and clarified in the appeal 
 
         decision of June 30, 1986, is likewise adopted for purposes of 
 
         this decision as if fully reiterated herein.
 
         
 
              Since the evidenciary hearing in 1985, claimant has been 
 

 
         
 
         
 
         
 
         KIRKPATRICK V. WESTERN INTERNATIONAL
 
         Page   2
 
         
 
         
 
         examined on August 27, 1986, by Curtis M. Steyer, M.D., from the 
 
         Department of Orthopedics at the University of Iowa Hospitals and 
 
         Clinics in Iowa City, Iowa.  From his examination of claimant and 
 
         review of claimant's past medical records, Dr. Steyers opines 
 
         that claimant has suffered a seven percent permanent partial 
 
         impairment to the body as a whole from her left thoracic outlet 
 
         syndrome (hereinafter referred to as TOS) condition.  From a lack 
 
         of objective evidence, Dr. Steyers could not diagnose the 
 
         conditions of right TOS or tenosynovitis and carpal tunnel 
 
         syndrome of the left wrist and no impairment ratings were given 
 
         for those conditions by Dr. Steyers.  Dr. Steyers described the 
 
         medical reports he reviewed for the purposes of his opinion and 
 
         all of these records and reports are part of the record in this 
 
         case except for an evaluation by "Drs.  Neff and Bowers." 
 
         According to Dr. Steyers, these doctors evaluated claimant in 
 
         January, 1986 and rated her impairment as "zero on both upper 
 
         extremities." No reports from a Dr. Neff or a Dr. Bowers were a 
 
         part of the original record of this case.
 
         
 
              Dr. Steyers reports that claimant indicated to him that her 
 
         upper extremity pain is precipitated primarily by pushing and 
 
         pulling of heavy objects at chest level and any type of activity 
 
         involving her hands over claimant's head.  She complained of pain 
 
         in the arm and deltoid area as well as intermittent pain in the 
 
         chest wall.  A majority of her pain is in her extremity 
 
         consisting of pain, numbness and tingling to the left hand.  
 
         Claimant indicated to him that she is no longer taking 
 
         anti-inflammatory medications.  Claimant states that she is able 
 
         to tolerate her current job at Western International but fears 
 
         being put "back onto the line" which would involve overhead 
 
         activity.  Claimant is still working under permanent restrictions 
 
         imposed by the plant nurse against overhead lifting.
 
         
 
                      APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u). However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors 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; t-he 
 
         employee's qualifications intellectually, emotionally and 
 
         physically; earnings prior and subsequent to the injury; age; 
 

 
         
 
         
 
         
 
         KIRKPATRICK V. WESTERN INTERNATIONAL
 
         Page   3
 
         
 
         
 
         education; motivation; functional impairment as a result of the 
 
         injury; and inability because of the injury to engage in 
 
         employment for which the employee is fitted.  Loss of earnings 
 
         caused by a job transfer for reasons related to the injury is 
 
         also relevant.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
         1121, 125 N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven 
 
         Cafe, Inc., (Appeal Decision, February 28, 1985).
 
         
 
              In the case sub judice, claimant contends that she suffered 
 
         permanent disability as a result of a work injury herein due to 
 
         permanent impairment to the body as a whole.  The greater weight 
 
         of evidence establishes that a body as a whole disability did, in 
 
         fact, occur.  Although claimant's primary complaints involved the 
 
         extremities, the injury involves permanent modification of the 
 
         body trunk as a result of resection of claimant's rib. it is well 
 
         settled that it is the anatomical situs of the permanent injury, 
 
         not the situs of the impairment, disability or pain caused by the 
 
         injury which determines whether or not to apply the schedules in 
 
         Iowa Code section 85.34(2)(a-t). Lauhoff Grain Company v. 
 
         McIntosh, 395 N.W.2d 834 (Iowa 1986);  Dailey v. Pooley Lumber 
 
         Co., 233 Iowa 758, 10 N.W.2d 569 (1943).
 
         
 
              Claimant's medical condition before the work injuries 
 
         beginning in 1981 were certainly not excellent given her health 
 
         history but she had no functional impairments or ascertainable 
 
         disabilities before the gradual injury date found in the appeal 
 
         decision in March of 1983.  Claimant was able to fully perform 
 
         physical tasks involving pushing and pulling of heavy objects and 
 
         overhead reaching and lifting.  Claimant has experienced 
 
         continuous pain in varying degrees since the first onset of her 
 
         1981 pain.
 
         
 
              Claimant's primary treating physician, Dr. Clemens, has 
 
         given claimant a significant permanent partial impairment rating 
 
         to the body as a whole as a result of the left TOS condition.  He 
 
         opines that claimant's impairment is 10 percent although he 
 
         failed to state whether this rating was to the extremity or to 
 
         the body as a whole.  Dr. Connair rates claimant's impairment as 
 
         consisting of a 10-15 percent to the body as a whole for the TOS 
 
         condition.  Dr. Steyers opines that he would rate claimant's 
 
         impairment as constituting seven percent to the body as a whole.  
 
         Certainly a finding of a 10 percent permanent partial impairment 
 
         to the body as a whole as a result of claimant's left TOS 
 
         condition is appropriate given such medical opinion evidence.
 
         
 
              No finding of permanent impairment for right sided TOS or 
 
         left sided tenosynovitis or carpal tunnel syndrome can be found 
 
         under the evidence as only Dr. Haines found permanent partial 
 
         impairment for any of these conditions which is controverted by 
 
         the other physicians in this case.
 
         
 
              More importantly from an industrial disability standpoint, 
 
         claimant has been restricted as a result of her work injury from 
 
         performing overhead work and she indicates to Dr. Steyers that 
 
         she is unable to push or pull heavy objects at chest level.  Such 
 
         restrictions in her physical activities prohibits her from much 
 
         of the work that she has performed in the past at AMF and at 
 
         Western International.
 
         
 

 
         
 
         
 
         
 
         KIRKPATRICK V. WESTERN INTERNATIONAL
 
         Page   4
 
         
 
         
 
              On the other hand, claimant has not shown that she has 
 
         suffered a significant permanent loss in actual earnings as a 
 
         result of her disability aside from her healing period which has 
 
         been compensated in the previous arbitration decision.  Claimant 
 
         continues to work at Western International with appropriate. 
 
         accommodations being made for physical limitations.  However, a 
 
         showing that claimant has no loss of actual earnings does not 
 
         preclude a finding of industrial disability.  See, Michael v. 
 
         Harrison County, Thirty-Fourth Biennial Report of the Iowa 
 
         Industrial Commissioner 218, 220 (1979).
 
         
 
              Claimant is 52 years of age and in the middle of her working 
 
         career.  Her loss of future earnings from employment due to 
 
         disability is more severe than would be the case for a younger or 
 
         an older individual.  See Becke v. Turner-Busch, Inc., 
 
         Thirty-Fourth Biennial Report of the Iowa Industrial Commissioner 
 
         34 (1979); Walton v. B & H Tank Corp., II Iowa Industrial 
 
         Commissioner Report 426 (1981).
 
         
 
              Although claimant has a high school education and exhibited 
 
         average intelligence at the hearing, little was shown to indicate 
 
         claimant's potential for vocational rehabilitation.  However, 
 
         such rehabilitation is not necessary at this time as claimant 
 
         appears to possess suitable and stable employment at Western 
 
         International at least at the time of the 1985 hearing.
 
         
 
              After examination of all of the factors of industrial 
 
         disability, it is found as a matter of fact that claimant has 
 
         suffered a 10 percent loss in her earning capacity from her work 
 
         injury resulting from left tos condition.  Based upon such 
 
         finding, claimant is entitled as a matter of law to 50 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 10 percent of 500 weeks, the maximum 
 
         allowable for an injury to the body as a whole in that 
 
         subsection.
 
         
 
              As it was found in the appeal decision that the date of 
 
         injury for permanent partial disability was claimant's first 
 
         absence from work as a result of the TOS condition, March 24, 
 
         1983, defendants are liable to pay these permanent partial 
 
         disability benefits.  These benefits shall be awarded from June 
 
         13, 1983, the end of claimant's healing period according to the 
 
         arbitration and appeal decisions in this case.
 
         
 
              It should be noted that it is purely coincidental that the 
 
         award of permanent partial disability in this case coincides with 
 
         the finding of permanent partial impairment.  This award was 
 
         arrived at after careful evaluation of all of the industrial 
 
         disability factors, not just the factor of the extent of 
 
         permanent partial impairment.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  The findings of fact as set forth in the arbitration 
 
         decision as modified by the commissioner in the appeal decision 
 
         is adopted as fully set out herein.
 
         
 
              2.  As a result of the work injury of March 24, 1983 
 
         consisting of left sided TOS, claimant has suffered a 10 percent 
 

 
         
 
         
 
         
 
         KIRKPATRICK V. WESTERN INTERNATIONAL
 
         Page   5
 
         
 
         
 
         permanent partial impairment to the body as a whole and permanent 
 
         work restrictions against no overhead work with her hands and no 
 
         pushing or pulling of heavy objects.
 
         
 
              3.  As a result of the permanent partial impairment and work 
 
         restrictions caused by the March 24, 1983 work injury, claimant 
 
         has suffered a 10 percent loss of earning capacity or industrial 
 
         disability.  Claimant is 52 years of age and has a high school 
 
         education.  Claimant's work history consists mostly of working in 
 
         a manufacturing environment involving extensive use of her hands 
 
         in overhead work.  Claimant's permanent impairment and work 
 
         restrictions caused by the work injury of March 24, 1983 
 
         prohibits claimant from returning to many jobs claimant has held 
 
         in the past at AMF and at Western International.  Claimant's 
 
         potential for vocational rehabilitation is unknown except that 
 
         such rehabilitation is not necessary at this time as claimant is 
 
         currently working at Western International in suitable and stable 
 
         employment.  Claimant, to date, has not suffered a permanent loss 
 
         of earnings as a result of the work injury.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits as awarded 
 
         below:
 
         
 
                                     ORDER
 
         
 
              1.  Defendants shall pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of two hundred  
 
         seventy and 62/100 dollars ($270.62) per week from June 13, 
 
         1983.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              3.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              4.  Defendants shall pay the additional costs of this action 
 
         pursuant to Division of Industrial Services Rule 343-4.33 
 
         occasioned by these remand proceedings.
 
         
 
              5.  Defendants shall file activity reports upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              6.  This matter shall be set back into immediate assignment 
 
         for prehearing and hearing on the remaining issue involving the 
 
         extent of additional permanent disability benefits to which 
 
         claimant may be entitled as a penalty under Iowa Code section 
 
         86.13.
 
         
 
         
 
              Signed and filed this 8th day of December, 1987.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         KIRKPATRICK V. WESTERN INTERNATIONAL
 
         Page   6
 
         
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Ms. Sara J. Sersland
 
         Attorney at Law
 
         1900 Hub Tower
 
         699 Walnut Street
 
         Des Moines, Iowa 50309
 
         
 
         Mr. Dennis Hanssen
 
         Attorney at  Law
 
         Terrace Center, STE 111 
 
         2700 Grand Ave.
 
         Des Moines, Iowa  50312
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ELIZABETH E. KIRKPATRICK,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 738250
 
         WESTERN INTERNATIONAL,
 
                                                   R E M A N D
 
              Employer,
 
                                                   R U L I N G
 
         and
 
         
 
         NATIONAL UNION FIRE
 
         INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         
 
              The Iowa District Court remanded the instant case to the 
 
         industrial commissioner for a determination of the amount of 
 
         permanent partial disability or industrial disability, if any, to 
 
         which claimant is entitled for her left thoracic outlet syndrome 
 
         injury of March 24, 1983.  The only evidence to be considered for 
 
         purposes of determination is the evidence submitted at hearing, 
 
         the five pages of clinical notes dated August 27, 1986, and the 
 
         two page letter dated September 5, 1986 from Curtis M. Steyers, 
 
         M.D.
 
         
 
              THEREFORE, this case is remanded to the original deputy that 
 
         heard this matter in compliance with the district court's ruling 
 
         of March 2, 1987.  The record that was certified on judicial 
 
         review should be returned to the agency.
 
         
 
              Signed and filed this 28th day of September, 1987.
 
         
 
         
 
                                                 DAVID E. LINQUIST
 
                                                 INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Ms. Sara J. Sersland
 
         Attorney at Law
 
         10th Floor, Hubbell Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         Mr.  Harry W. Dahl
 
         Attorney at Law
 
         974 73rd St., Suite 16
 
         Des Moines, Iowa 50312
 
                                                            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL L. THOMAS,
 
         
 
              Claimant,                           File No. 738508
 
         
 
         vs.
 
                                               A R B I T R A T I 0 N
 
         STANLEY JONES MECHANICAL
 
         CONTRACTORS, INC.,                       D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         USF&G,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Michael L. 
 
         Thomas, claimant, against Stanley Jones Mechanical Contractors, 
 
         Inc., employer, and USF&G, insurance carrier, to recover benefits 
 
         under the Iowa Workers' Compensation Act as a result of an injury 
 
         sustained June 21, 1983 stipulated as arising out of and in the 
 
         course of employment.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner September 29, 1987.  
 
         The record was considered fully submitted at the close of 
 
         hearing.  The record in this case consists of the testimony of 
 
         claimant and Peggy McKinney, and joint exhibits 1 through 11, 
 
         inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order approved 
 
         September 29, 1987, the issues presented for resolution are:
 
         
 
              1)   Whether claimant's injury is causally connected to the 
 
         disability on which he now bases his claim;
 
         
 
              2)   Whether claimant is entitled to temporary total 
 
         disability/ healing period benefits for the period from February 
 
         6, 1985 through September 9, 1985, inclusive, as a result of 
 
         wrist surgery;
 
         
 
              3)   The nature and extent of any permanent partial 
 
         disability benefits which may be awarded;
 
              4)   The appropriateness and authorization of certain 
 
         medical expenses; and
 
         
 
              5)   Whether claimant is entitled to Iowa Code section 
 

 
         
 
         
 
         
 
         THOMAS V. STANLEY JONES MECHANICAL CONTRACTORS
 
         Page   2
 
         
 
         
 
         86.13 penalty benefits.
 
         
 
                               FACTS PRESENTED
 
         
 
              Twenty-four year old claimant testified he graduated from 
 
         high school, studied carpentry one year at an area vocational 
 
         school, and denied any further formal education or training.  
 
         Claimant testified to work experience as a farm hand and in 
 
         maintenance before securing work with defendant employer, first 
 
         as a plumber's helper earning $5.00 per hour and last as a 
 
         laborer earning $6.00 per hour.  Claimant began the labor 
 
         position in May 1983 explaining he assisted the semi-skilled and 
 
         skilled workers at the Monsanto plant in Muscatine, Iowa.  
 
         Claimant worked approximately one month before he was injured on 
 
         June 21, 1983.
 
         
 
              Claimant recalled little about his accident.  He explained 
 
         only that he fell at work and awoke in the hospital.  Medical 
 
         records revealed that after emergency care at Muscatine General 
 
         Hospital, claimant was transferred to the University of Iowa 
 
         Hospitals where he remained until discharged on July 3, 1983.  
 
         His accident was described in the medical records as a fall off 
 
         of a scaffold approximately thirty feet to the ground striking 
 
         the back of his head.  X-rays revealed a lateral temporal skull 
 
         fracture, subdural or epidural hematoma and right front horn 
 
         compression.  Claimant was found to have a laceration at the 
 
         anterior portion of the tympanic membrane.  Claimant was closely 
 
         observed and described as intermittently somnolent and agitated. 
 
          Hand and chest restraints were used.  At the time of discharge, 
 
         claimant was described as alert and oriented but exhibiting short 
 
         term memory deficits.  He was advised to contact a local 
 
         otolaryngologist for followup audiograms to rule out significant 
 
         conduction defect. (Joint Exhibit 2)
 
         
 
              Claimant returned to Kentucky and recalled he came under the 
 
         care of Carey W. Campbell, M.D., whom he described as treating 
 
         him for his head, and "back, some" and who referred him to 
 
         William J. Stodghill, M.D., for problems with his left wrist in 
 
         August 1983.  Claimant explained Dr. Stodghill put his left wrist 
 
         in a short arm cast and that he was released to return to work 
 
         November 15, 1983.  Claimant testified he first noticed a problem 
 
         with his wrist when he came to his "senses" in the hospital when 
 
         he saw an egg-shaped knot the size of a dime or a quarter and 
 
         could feel ridges in his wrist.  He recalled he mentioned his 
 
         wrist was bothering him to the University of Iowa personnel.  
 
         Claimant explained he later came under the care of David S. St. 
 
         Clair, M.D., who, on February 7, 1985, performed a bone grafting 
 
         on the wrist.  Claimant was released to return to work September 
 
         9, 1985 with a lifting restriction of 50 pounds.  Claimant 
 
         testified he is still under that lifting restriction.
 
         
 
              Since his injury, claimant described working as a hand 
 
         laster on a production line making new shoes, a cook, a van 
 
         driver, general laborer, farm laborer and truck driver at rates 
 
         of pay varying from $3.35 to $4.50 per hour.  Claimant testified 
 
         he is currently employed as an activities assistant working with 
 
         mentally challenged individuals at a rate of pay of $3.50 per 
 
         hour.  Claimant testified that his health before the accident was 
 
         excellent but that he is now unable to taste or smell, that he 
 

 
         
 
         
 
         
 
         THOMAS V. STANLEY JONES MECHANICAL CONTRACTORS
 
         Page   3
 
         
 
         
 
         has hearing loss in his right ear, his back bothers him and that 
 
         he has little mobility in his wrist.  Claimant testified to an 
 
         inability to sit or stand for extended periods of time without 
 
         having his back "knot up.O  He explained he feels a tightness in 
 
         his wrist which increases with use a loss of grip in that wrist 
 
         and finally that he cannot push down with the wrist without 
 
         causing pain.
 
         
 
              Claimant has sought to return to work with defendant 
 
         employer but no work has been available to him.
 
         
 
              Peggy McKinney testified that she is the director of 
 
         administrative services for defendant employer and as such 
 
         administers both the insurance program and employee benefit 
 
         program.  She described defendant employer as a general 
 
         contractor specializing in heating and plumbing, air conditioning 
 
         and resource recovery.  She explained that because of the various 
 
         locations in which the employer works, it is the employer's 
 
         policy to use local labor whose wages are based on the locale 
 
         where work is available.  She explained that claimant was not 
 
         returned to work at the Monsanto plant in Muscatine because the 
 
         job began winding down in mid-October and was finished by 
 
         mid-December 1983; that the claimant was the only nonlocal 
 
         laborer hired for that job; and that he was hired only in 
 
         consideration of his uncle who was a long time employee of the 
 
         company.  She indicated that although claimant had advised her of 
 
         problems with his back and his hearing, claimant never complained 
 
         about any problems with his wrist.
 
         
 
              Claimant's medical records from the University of Iowa show 
 
         that on discharge from the hospital, a motor examination revealed 
 
         claimant to be able to move all extremities equally and purposely 
 
         without evidence of a wrist fracture.  Dr. Campbell first makes 
 
         note of claimant's wrist problem August 18, 1983, stating 
 
         claimant is "still complaining" of tenderness of the left wrist.  
 
         Dr. Campbell indicates that he recommended to the claimant to 
 
         proceed with an orthopedic consulation for followup evaluation of 
 
         the wrist.  With regard to claimant's complaints of back pain, 
 
         claimant submitted to lumbar spine x-rays July 15, 1983, which, 
 
         according to Dr. Campbell's office notes of July 28, 1983, showed 
 
         questionable compression fracture at Ll-L2.  Dr. Campbell writes 
 
         "This appears to be an old and possibly a developmental finding." 
 
         On December 29, 1986, Dr. Campbell expresses the opinions that 
 
         the claimant's wrist injury occurred at the time of his fall on 
 
         or about June 21, 1983 and further, with regard to complaints of 
 
         back pain, the complaints did not occur until weeks after his 
 
         injury and were not reported on initial consultation when 
 
         claimant was alert and cooperative.  Dr. Campbell opines "It is 
 
         therefore my opinion that the conditions I detected in his back 
 
         are of a degenerative nature, that the symptoms were aroused 
 
         during the course-of his sedentary activity, while recovering 
 
         from his injury, and further that the symptoms had resolved at 
 
         the time of my last encounter on 11 August 83.O (Jt. Ex. 3f)
 
         
 
              William J. Stodghill, M.D., orthopedic surgeon, treated 
 
         claimant regularly from August 23, 1983, on referral from Dr. 
 
         Campbell for left arm pain until November 15, 1983, when claimant 
 
         was released to return to work.  Claimant was diagnosed as having 
 
         a fracture of the left carponavicular and treated with a short 
 

 
         
 
         
 
         
 
         THOMAS V. STANLEY JONES MECHANICAL CONTRACTORS
 
         Page   4
 
         
 
         
 
         arm cast.  At that time, Dr. Stodghill opined that the fracture 
 
         of the navicular was directly related to the June 21, 1983 
 
         accident.  On December 21, 1983, Dr. Stodghill writes "the 
 
         fracture of the navicular has healed uneventfully .... 11 (Jt. 
 
         Ex. 7c) Claimant later returned to Dr. Stodghill for further 
 
         followup on October 2, 1984, complaining of continuing problems 
 
         with pain and a limitation of motion in his wrist.  Surgery was 
 
         discussed with and rejected by claimant.  In December 1986, Dr. 
 
         Stodghill wrote "I feel that this fracture of the navicular and 
 
         avascular necrosis represents 15% impairment of the extremity or 
 
         9% of the whole man, this is in accordance with the AMA 
 
         Guidelines [sic] for Permanent Impairment.  It is my opinion that 
 
         the fracture of the navicular and the subsequent avascular 
 
         necrosis is a direct result of his accident of June of 1983." 
 
         (Jt. Ex. 7e)
 
         
 
              David S. St. Clair, M.D., performed a Russe bone grafting of 
 
         the left navicular and carpal tunnel release February 7, 1985, 
 
         after x-ray showed a nonunion of the left carpal navicular.  On 
 
         August 9, 1985, Dr. St. Clair reported "I would estimate his 
 
         permanent physical impairment to be 25% of the upper extremity 
 
         because of the likelihood of developing arthritic changes in the 
 
         future." (Jt. Ex. llf) In December 1986, Dr. St. Clair opined "We 
 
         estimate this impairment at about 30 % now.  According to AMA 
 
         guidelines we can rate his limited motion at 11%; however, his 
 
         non-union doesn't have any specific recommendations for that, so 
 
         I estimated his total impairment related to the upper extremity 
 
         at the present time to be 30%." (Jt. Ex. llk)
 
         
 
              In April 1984, claimant consulted Harold T. McIver, M.D., 
 
         complaining of diminished hearing on the right and roaring in his 
 
         head.  Dr. McIver determined claimant had a 30 percent loss of 
 
         hearing but he could not determine how much of that hearing loss 
 
         was due to the accident.  On November 19, 1985, Dr. McIver writes 
 
         "He complains, this time, of complete loss of smell since his 
 
         accident.  There has been no regain of his smell and we must 
 
         assume that it is due to the skull fracture suffered at the time 
 
         of the accident" and on December 30, 1986, he opines "It is my 
 
         opinion that to a reasonable degree of medical probability that 
 
         the extent and causation of the loss of smell, taste and hearing 
 
         was due to the accident that the patient was involved in." (Jt. 
 
         Ex. 8f, 8g)
 
         
 
              Claimant was also seen by James 0. Shaw, M.D., F.A.C.S., for 
 
         evaluation of his hearing impairment, who advised that he could 
 
         not give any opinion as to whether or not the claimant sustained 
 
         high frequency hearing loss as a result of his fall because he 
 
         had had no opportunity to examine claimant or test his hearing 
 
         prior to the fall.  Dr. Shaw calculated a mild monaural hearing 
 
         impairment of 3.8 percent in only the left ear and further 
 
         advised that calculations for a bilateral hearing impairment 
 
         yields a value of 0.6 percent.  Notwithstanding the lack of 
 
         opportunity to previously test claimant's hearing, Dr. Shaw 
 
         opined that the sensorineural hearing loss may have been present 
 
         prior to his accident. (Jt. Ex. 4c)
 
         
 
              Claimant was evaluated by Robert J. Barnett, M.D., A.A.O.S., 
 
         April 20, 1984 who concluded "Patient has arthritic changes from 
 
         his fractured wrist and estimate he has a ten percent permanent 
 

 
         
 
         
 
         
 
         THOMAS V. STANLEY JONES MECHANICAL CONTRACTORS
 
         Page   5
 
         
 
         
 
         disability to the left arm.O  Dr. Barnett also indicated that 
 
         claimant has an injury to his back, should not do any heavy 
 
         lifting and estimated claimant has a 5 percent permanent 
 
         disability to the body as a whole.
 
         
 
                                  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 of 
 
         the evidence that the injury of June 21, 1983 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  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).
 
         
 
              When an aggravation occurs in the performance of an employ- 
 
         er's work and a causal connection is established, claimant may 
 
         recover to the extent of the impairment.  Zieqler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (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 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 
         
 
              Iowa Code section 85.34(l) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 

 
         
 
         
 
         
 
         THOMAS V. STANLEY JONES MECHANICAL CONTRACTORS
 
         Page   6
 
         
 
         
 
              Iowa Code section 85.27 states, in part:
 
         
 
              The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable 
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 
              allow reasonably necessary transportation expenses 
 
              incurred for such services.
 
         
 
              Iowa Code section 86.13 states, in part:
 
         
 
                 If a delay in commencement or termination of 
 
              benefits occurs without reasonable or probable cause or 
 
              excuse, the industrial commissioner shall award 
 
              benefits in addition to those benefits payable under 
 
              this chapter, or chapter 85, 85A, or 85B, up to fifty 
 
              percent of the amount of benefits that were 
 
              unreasonably delayed or denied.
 
         
 
         ANALYSIS
 
         
 
              Of first concern is whether or not the disability on which 
 
         claimant now bases his claim is causally connected to his injury 
 
         of June 21, 1983.  Claimant seeks an award of benefits based on 
 
         hearing loss, an injury to his back and wrist.
 

 
         
 
         
 
         
 
         THOMAS V. STANLEY JONES MECHANICAL CONTRACTORS
 
         Page   7
 
         
 
         
 
         
 
              With regards to claimant's hearing loss, both Dr. McIver and 
 
         Dr. Shaw attest to a loss of hearing.  Dr. Shaw could not state a 
 
         definite cause for the sensorineural loss but acknowledges 
 
         claimant did sustain a severe intracranial injury and he did not 
 
         totally dismiss a causal connection between the two.  Dr. McIver 
 
         finds a hearing loss, first cannot determine how much of the loss 
 
         is due to the accident and then determines the extent and 
 
         causation of the loss of smell, loss of taste and loss of hearing 
 
         were due to the accident.  Medical records from the University of 
 
         Iowa show claimant incurred a laceration of the anterior portion 
 
         of the tympanic membrane.  Claimant was specifically advised to 
 
         contact an otolaryngologist for followup audiograms to rule out 
 
         significant conduction defect. obviously, there was immediate 
 
         concern claimant would incur hearing loss.  Claimant's hearing 
 
         has been impaired by his own opinion and the opinions of two 
 
         medical experts.  It is concluded claimant's hearing loss is 
 
         causally connected to his injury of June 21, 1983.
 
         
 
              Claimant's wrist injury presents a somewhat more complicated 
 
         set of facts.  Claimant fell June 21, 1983 and was hospitalized 
 
         immediately thereafter.  The nurse's notes from the University of 
 
         Iowa show claimant was closely observed.  The notes reveal 
 
         claimant was in leather and posey restraints for a good part of 
 
         the time he was at the hospital.  The only notation with regard 
 
         to pain was made June 29: "complains of hands hurting."  There 
 
         are no complaints of pain in the wrist found.  J. Godersky, M.D. 
 
         , Associate Professor of Neurosurgery at the University of Iowa, 
 
         wrote on July 5, 1983, that on discharge from the hospital, motor 
 
         examination revealed 5+ strength in all motor groups of the upper 
 
         and lower extremities and later specifically states there was no 
 
         evidence of a wrist fracture.  When claimant came under the care 
 
         of Dr. Campbell July 8, 1983, Dr. Campbell noted that motor, 
 
         sensory and deep tendon reflex examinations throughout the upper 
 
         and lower extremities were normal except for a depressed right 
 
         ankle jerk.  It is accepted the first medical notation of 
 
         claimant's wrist pain is found in Dr. Campbell's office notes of 
 
         August 18, 1983, almost two months post-accident.  Yet, Dr. 
 
         Campbell referred to claimant still complaining of tenderness in 
 
         the left wrist.  This must lead to the conclusion that even 
 
         though it had not been documented before, claimant had complained 
 
         previously about such pain.  All the medical experts who treated 
 
         claimant's left wrist problem concurred it was probably caused by 
 
         claimant's fall on June 21, 1983.  There is no evidence in the 
 
         record which might establish or even suggest any intervening 
 
         occurrence that might have caused it.  Claimant's skull fracture 
 
         was a life threatening injury and close attention was paid to his 
 
         failure to recover quickly from it.  It is determined claimant's 
 
         wrist injury is causally connected to his accident of June 21, 
 
         1983.  Claimant is therefore entitled to temporary total 
 
         disability/ healing period benefits for the period from February 
 
         6, 1985 through and including September 9, 1985, pursuant to Iowa 
 
         Code section 85.34(l) and defendants are liable for the medical 
 
         expenses arising therefrom pursuant to Iowa Code section 85.27.
 
         
 
              From the medical records in evidence, it appears Dr. 
 
         Campbell was the only physician who regularly treated claimant 
 
         for any back problems.  Dr. Campbell determined the injury 
 
         brought on a degenerative condition in the back which resolved 
 

 
         
 
         
 
         
 
         THOMAS V. STANLEY JONES MECHANICAL CONTRACTORS
 
         Page   8
 
         
 
         
 
         itself by August 11, 1983.  Dr. Nelson, on July 15, 1983, 
 
         determined claimant's pain was the result of a congenital 
 
         condition and expresses no opinion on causation with respect to 
 
         claimant's accident or impairment.  He advises only that a small 
 
         depression fracture of the third lumbar vertebra is present.  Dr. 
 
         Barnett concludes claimant has a 5 percent permanent partial 
 
         disability to the body as a whole but expresses no opinion as to 
 
         causation nor to impairment.  Dr. Stodghill, although an 
 
         orthopedic surgeon, makes no note of any complaint of back pain 
 
         or injury.  Dr. Campbell's position is therefore accepted.  It is 
 
         concluded the injury aggravated a preexisting condition.  
 
         However, it is also noted that the aggravation was only 
 
         temporary.
 
         
 
              What remains to be decided then is claimant's entitlement to 
 
         permanent partial disability benefits.  Although a hearing loss 
 
         or wrist injury, standing alone, would be a scheduled injury 
 
         compensable under Iowa Code sections 85.34(2)(1) or (r), the 
 
         combination of injuries claimant, if proven, brings this case 
 
         within section 85.34(2)(u) such that compensation is payable 
 
         based upon disability to the body as a whole.
 
         
 
              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 employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 

 
         
 
         
 
         
 
         THOMAS V. STANLEY JONES MECHANICAL CONTRACTORS
 
         Page   9
 
         
 
         
 
         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 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 24 years old with a high school 
 
         education and one year vocational training in carpentry.  
 
         Claimant cannot be considered to have any substantive specialized 
 
         training, but appears to be of average intellectual ability.  A 
 
         review of his employment history shows he has principally earned 
 
         his way as a manual laborer.  He is now engaged in an occupation 
 
         which pays less than the wage he earned as a laborer.  Because of 
 
         medical restrictions, claimant has limited ability to lift.  
 
         Therefore, a significant portion of the labor market is currently 
 
         closed to him.  It was in this part of the market claimant was 
 
         best able to maintain employment.  However, claimant is a young 
 
         man who appears to possess the capability to retrain himself for 
 
         work outside of the type he previously performed.  Outside of 
 
         having a kidney removed when he was eight years old, childhood 
 
         bronchitis and a pulled muscle, claimant had an unremarkable 
 
         medical history before his accident.  It is now accepted that 
 
         claimant has suffered a permanent impairment to his wrist thus 
 
         affecting his dominant hand.  While claimant asserts a loss of 
 
         grip, there is neither medical nor demonstrative evidence in the 
 
         file to support this assertion.  It is accepted that claimant has 
 
         suffered a permanent impairment of his hearing.  Claimant also 
 
         suffers from a loss of taste and smell.  Considering then all the 
 
         elements of industrial disability, it is found claimant has 
 
         sustained a 15 percent disability for industrial purposes as a 
 
         result of his injury of June 21, 1983.
 
         
 
              Iowa Code section 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.
 
         
 
              It is determined claimant's healing period encompasses the 
 
         period from June 21, 1983 through and including November 15, 
 
         1983, when claimant was released by Dr. Stodghill.  Claimant was 
 
         temporarily totally disabled for the period from February 6, 1985 
 
         through and included September 9, 1985, when claimant was 
 
         released to return to work by Dr. St. Clair after wrist surgery. 
 
          Therefore, permanent partial disability benefits shall commence 
 
         effective November 15, 1983.
 
         
 
              The final issue for determination then is whether or not 
 
         claimant is entitled to additional benefits pursuant to Iowa Code 
 
         section 86.13.  In January 1987, claimant amended his original 
 
         notice and petition to include a penalty claim.  Claimant 
 
         asserted that there had been a termination of permanent partial 
 
         disability benefits, based on a 25 percent impairment rating by 
 

 
         
 
         
 
         
 
         THOMAS V. STANLEY JONES MECHANICAL CONTRACTORS
 
         Page  10
 
         
 
         
 
         Dr. David St. Clair, without reasonable or probable cause or 
 
         excuse.  Defendants disagree, citing disputes as to the 
 
         compensability of the injuries alleged and as to the nature and 
 
         extent of disability.
 
         
 
              Generally speaking, penalties are not imposed where there 
 
         are legitimate disputes over causation or extent of impairment.  
 
         See, for example, Just v. Hygrade Food Products Corp. and 
 
         National Union Fire Insurance Company, File No. 656372, Appeal 
 
         Decision filed January 31, 1984, Vol. IV, Iowa Industrial 
 
         Commissioner Reports at 190.  A review of the evidence 
 
         establishes a bona fide dispute existed as to the benefits owed 
 
         to the claimant, particularly with regard to the issues of 
 
         causation and extent of impairment.  Therefore, no penalty will 
 
         be imposed.
 
         
 
              Finally, defendants ask that any award in this proceeding 
 
         contain appropriate directions as to the identity of the payees 
 
         on checks issued, if any further.benefits are awarded.  Since the 
 
         issue of attorney fees was not raised at the time of the 
 
         prehearing nor is it a part of the hearing assignment order, it 
 
         is not so addressed in this decision.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Therefore, based on the evidence presented, the following 
 
         facts are found:
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment of June 21, 1983, when he fell 30 
 
         feet from a scaffold.
 
         
 
              2.  Claimant was hospitalized and x-rays revealed a lateral 
 
         temporal skull fracture, hematoma and right front horn 
 
         compression with a laceration of the anterior portion of the 
 
         tympanic membrane.
 
         
 
              3.  As a result of the fall, claimant incurred a left wrist 
 
         injury that was not immediately identified and treated.
 
         
 
              4.  Claimant underwent a Russe bone grafting of left 
 
         navicular and carpal tunnel release for treatment of navicular 
 
         nonunion.
 
         
 
              5.  Claimant was unable to work as a result of the surgery 
 
         from February 6, 1985 through and including September 9, 1985.
 
         
 
              6.  Claimant has suffered a permanent partial impairment to 
 
         his left wrist.
 
         
 
              7.  As a result of the fall, claimant has suffered a 
 
         permanent partial impairment of his hearing.
 
         
 
              8.  Since his injury, claimant has lost his senses of smell 
 
         and taste.
 
         
 
              9.  Claimant temporarily aggravated a preexisting condition 
 
         in his back.
 
         
 
             10.  Claimant is 24 years old, a high school graduate, with 
 

 
         
 
         
 
         
 
         THOMAS V. STANLEY JONES MECHANICAL CONTRACTORS
 
         Page  11
 
         
 
         
 
         one year of vocational training in carpentry.
 
         
 
             11.  Prior to his accident, claimant had an unremarkable 
 
         medical history.
 
         
 
             12.  Claimant is currently under medical restrictions which 
 
         limit his ability to lift and perform the manual labor he had 
 
         previously been able to perform and from which he had made his 
 
         living.
 
         
 
             13.  Claimant is currently engaged in an occupation which 
 
         pays a lower wage than that which he was able to earn as a 
 
         laborer.
 
         
 
             14.  Claimant has limited mobility in his wrist, perceives a 
 
         tightness in his wrist that increases with its use and further 
 
         perceives a loss of grip in his left hand.
 
         
 
             15.  Claimant is left hand dominant.
 
         
 
             16.  Claimant has a permanent partial disability to the body 
 
         as a whole.
 
         
 
             17.  Claimant has a 15 percent industrial disability as a 
 
         result of his injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
         
 
         
 
         THOMAS V. STANLEY JONES MECHANICAL CONTRACTORS
 
         Page  12
 
         
 
         
 
              Wherefore, based on the principles of laws previously 
 
         stated, the following conclusions of law are made.
 
         
 
              1.  Claimant has established the disability to his wrist, 
 
         hearing, taste and smell are causally connected to his injury of 
 
         June 21, 1983.
 
         
 
              2.  Claimant has not established any permanent disability to 
 
         his back as a result of his fall.
 
         
 
              3.  Claimant has established he is entitled to additional 
 
         temporary total disability benefits for the period from February 
 
         6, 1985 through and including September 9, 1985.
 
         
 
              4.  Claimant has established a 15 percent disability for 
 
         industrial purposes as a result of his injury of June 21, 1983.
 
         
 
              5.  Claimant has established defendants' liability for 
 
         medical expenses for treatment of the wrist injury.
 
         
 
              6.  Claimant is not entitled to penalty benefits under Iowa 
 
         Code section 86.13.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay unto claimant thirty point eight 
 
         fifty-seven 30.857 weeks of temporary total disability benefits 
 
         for the period from February 6, 1985 through and including 
 
         September 9, 1985 at the stipulated rate of one hundred 
 
         forty-eight and 18/100 dollars ($148.18) per week.
 
         
 
              Defendants shall pay unto claimant seventy-five (75) weeks 
 
         of permanent partial disability benefits at a rate of one hundred 
 
         forty-eight and 18/100 dollars ($148.18) per week commencing 
 
         November 15, 1983.
 
         
 
              Defendants shall pay all disputed medical expenses.
 
         
 
              Payments that have accrued to the claimant shall be paid in 
 
         a lump sum together with statutory interest thereon pursuant to 
 
         Iowa Code section 85.30.
 
         
 
              Defendants shall receive full credit for all permanent 
 
         partial disability benefits previously paid.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against the defendants 
 
         pursuant to to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 5th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         THOMAS V. STANLEY JONES MECHANICAL CONTRACTORS
 
         Page  13
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Thomas M. Wertz
 
         Attorney at Law
 
         4089 21st Ave., SW
 
         Suite 114
 
         Cedar Rapids, Iowa 52404
 
         
 
         Patricia Rhodes Cepican
 
         Attorney at Law
 
         3432 Jersey Ridge Road
 
         Davenport, Iowa 52807
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.20; 1800; 1803
 
                                                  Filed 1-5-88
 
                                                  Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL L. THOMAS,
 
         
 
              Claimant,                           File No. 738508
 
         
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         STANLEY JONES MECHANICAL
 
         CONTRACTORS, INC.,                       D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         USF&G,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.20; 1800; 1803
 
         
 
              Claimant fell 30 feet on June 21, 1983 sustaining a 
 
         fractured skull and ear injury.  Some weeks later he complained 
 
         of wrist and back pain and a loss of taste and smell.  Claimant's 
 
         hearing loss, wrist injury and loss of taste and smell were found 
 
         to be causally connected to the injury.  The only doctor who 
 
         treated claimant for his back condition opined the condition was 
 
         of a degenerative nature which resolved itself.  Claimant awarded 
 
         15% industrial disability.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         THOMAS A. STEWART,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         CROUSE CARTAGE COMPANY,
 
                                                 File No. 738644
 
             Employer,
 
                                                    A P P E A L
 
         and
 
                                                 D E C I S I 0 N
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
             Insurance Carrier,
 
             Defendants.
 
         
 
         _________________________________________________________________
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         claimant 250 weeks of permanent partial disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 24; 
 
         defendants' exhibits A and B; and joint exhibit D. Both parties 
 
         filed briefs on appeal.
 
         
 
                                  ISSUES
 
         
 
              Defendants state the issues on appeal as:
 
         
 
              I.  Where the claimant has voluntarily withdrawn from the 
 
              labor market to pursue a college education, the proposed 
 
              decision awarding permanent partial disability benefits 
 
              equal to 50 percent of the body as a whole is in error as a 
 
              matter of law.
 
         
 
              II.  In the alternative, even if claimant is entitled to an 
 
              award of permanent partial disability benefits, the proposed 
 
              decision awarding benefits equal to 50 percent of the body 
 
              as a whole is not supported by substantial evidence in the 
 
              record, and is arbitrary and capricious.
 
                                        
 
         
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be reiterated herein.
 
         
 
              Briefly stated, claimant sustained an injury to his back on 
 

 
         June 30, 1983 when he was pushing carts weighing five to six 
 
         hundred pounds while he was unloading a truck on defendant/ 
 
         Crouse Cartage Company's (hereinafter Crouse) dock.  Claimant, at 
 
         the time of the arbitration hearing, was 43 years old and had 
 
         been employed as a truck driver or dock worker for the last 
 
         sixteen years.  At the time of the injury claimant was earning 
 
         approximately $509 per week.  Claimant did not return to work for 
 
         Crouse after the injury.
 
         
 
              Scott B. Neff, D.O., treated claimant following this injury.  
 
         Dr. Neff performed a laminectomy in November 1983 and 
 
         subsequently recommended that claimant not return to driving a 
 
         truck or working on a dock.  Dr. Neff in a letter dated May 24, 
 
         1984 opines that claimant has 10 percent permanent disability 
 
         with reference to his back.
 
         
 
              Martin S. Rosenfield, D.O., evaluated claimant and he opines 
 
         that claimant has a 20 percent permanent partial impairment of 
 
         the body as a whole.  He also does not feel claimant can return 
 
         to his employment as a dock worker.
 
         
 
              At the time of the arbitration hearing claimant was 
 
         attending Des Moines Area Community College and hoped to pursue a 
 
         bachelor's degree possibly in accounting at a university.  
 
         Claimant was also evaluated by Barbara A. Chaldy, a 
 
         rehabilitation consultant.  Chaldy suggested in her report of 
 
         February 24, 1984 that her first approach to claimant's 
 
         rehabilitation would be direct placement.  At the arbitration 
 
         hearing Chaldy testified concerning the potential for claimant to 
 
         obtain a position in hospital administration.  She stated that 
 
         claimant could earn from approximately $8 and $16 per hour as a 
 
         hospital administrator.  She also stated that claimant could earn 
 
         at the entry level from $5.50 to $10.00 per hour as an 
 
         accountant.  However, she admitted on cross-examination that for 
 
         claimant to obtain a position as either a hospital administrator 
 
         or an accountant would require claimant to be out in the job 
 
         market for up to five years and that this would be a detriment to 
 
         entering a new field of employment.
 
         
 
                               APPLICABLE LAW
 
         
 
              The applicable law is adequately and accurately set out in 
 
         the arbitration decision and it will not be reiterated herein.
 
         
 
                                 ANALYSIS
 
         
 
              Under current conditions taking into account claimant's age, 
 
         work experience, education and loss of earning capacity 
 
         claimant's
 
         industrial disability is 50 percent.  Defendants argue that if 
 
         claimant finishes college and chooses business as a career, there 
 
         are a multitude of career choices and the opportunities are 
 
         limitless.  However, it is claimant's present earning capacity 
 
         which is relevant to determine claimant's industrial disability.  
 
         At this point in time it is pure speculation to say what the 
 
         earning potential of claimant would be if he indeed does complete 
 
         college particularly considering his age.
 
         
 
              Defendants also argue that the deputy's award of 50 percent 
 
         industrial disability was made to help to pay for claimant's 
 
         college career.  Examination of the deputy's analysis reveals 
 
         that the award was based solely and correctly on claimant's 
 
         condition as it presently exists.
 
         
 

 
         
 
         
 
         
 
         STEWART V. CROUSE CARTAGE COMPANY
 
         Page   3
 
         
 
         
 
              The findings of fact, conclusions of law, and order of the 
 
         arbitration decision are adopted.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  On June 30, 1983 Thomas A. Stewart was a resident of the 
 
         state of Iowa employed by Crouse Cartage Company in the state of 
 
         Iowa.
 
         
 
              2.  On June 30, 1983 claimant was injured pushing a cart 
 
         while unloading a truck at his employer's place of business.  At 
 
         the time of injury, claimant was working as a dock worker.
 
         
 
              3.  Following the injury, claimant was medically incapable 
 
         of performing work in employment substantially similar to that he 
 
         performed at the time of injury on June 30, 1983 until May 24, 
 
         1984 when claimant reached the point that it was medically 
 
         indicated that further significant improvement from the injury 
 
         was not anticipated.
 
         
 
              4.  Claimant is a credible witness.
 
         
 
              5.  Claimant is 43 years of age, married, and has one 
 
         dependent child who was born subsequent to the injury.
 
         
 
              6.  Claimant's rate of earnings while employed by the 
 
         defendant employer was approximately $13.00 per hour.  During 
 
         calendar years 1981 and 1982, he earned approximately $27,000 per 
 
         year.
 
         
 
              7.  Claimant currently has a 10 to 20 percent permanent 
 
         functional impairment of the body as a whole due to the condition 
 
         of his lumbar spine.  He is restricted in his ability to lift, 
 
         bend, stoop, stand, sit, or otherwise stress his back.
 
         
 
              8.  Claimant has a high school education.
 
         
 
              9.  Claimant's work experience is primarily in the trucking 
 
         industry and in the field of auto mechanics.
 
         
 
              10.  Claimant is of above average intelligence, emotionally 
 
         stable, and highly motivated to be gainfully employed.
 
         
 
              11.  The injury of June 30, 1983 is a substantial factor in 
 
         bringing about the disability in claimant's spine.
 
         
 
              12.  Prior to June 30, 1983 claimant had no preexisting 
 
         objectively ascertainable disability in his lumbar spine.
 
         
 
              13.  If claimant returns to employment in his present 
 
         condition, it is anticipated that his earnings would be in the 
 
         range of four to five dollars per hour.
 
         
 
                            CONCLUSIONS OF LAW
 
         
 
              This agency has jurisdiction of the subject matter of this 
 
         proceeding and its parties.
 
         
 
              The injury claimant sustained to his back on June 30, 1983 
 

 
         
 
         
 
         
 
         STEWART V. CROUSE CARTAGE COMPANY
 
         Page   4
 
         
 
         
 
         arose out of and in the course of his employment with Crouse 
 
         Cartage Company.
 
         
 
              The injury of June 30, 1983 is a proximate cause of the 
 
         disability which claimant presently experiences due to his lumbar 
 
         spine.
 
         
 
              Apportionment of disability is not warranted in this  case.
 
         
 
              Claimant's injury is to the body as a whole and the 
 
         disability should be evaluated industrially.
 
         
 
              Claimant's disability related to the June 30, 1983 injury is 
 
         50 percent of total disability.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant two hundred fifty (250) weeks 
 
         of compensation for permanent partial disability at the rate of 
 
         three hundred one and 08/100 dollars ($301.08) per week 
 
         commencing May 24, 1984.
 
         
 
              That any past due amounts be paid in a lump sum together 
 
         with interest pursuant to section 85.30, Code of Iowa.
 
         
 
              That defendants pay the cost of this action pursuant to
 
         
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1, formerly Industrial Commissioner Rule 500-3.1.
 
         
 
         
 
              Signed and filed this 20th day of February, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                                 ROBERT C. LANDESS
 
                                                 INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Jim R. Lawyer
 
         Attorney at Law
 
         2141 Grand Avenue
 
         P.O. Box 367
 
         Des Moines, Iowa 50302
 
         
 
         Mr. Richard G. Book
 
         Attorney at Law
 

 
         
 
         
 
         
 
         STEWART V. CROUSE CARTAGE COMPANY
 
         Page   5
 
         
 
         
 
         1000 Des Moines Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40 - 1803
 
                                                 Filed February 20, 1987
 
                                                 ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         
 
         THOMAS A. STEWART,
 
         
 
             Claimant,
 
         
 
         VS.
 
         
 
         CROUSE CARTAGE COMPANY,
 
                                                 File No. 738644
 
              Employer,
 
                                                   A P P E A L
 
         and
 
                                                 D E C I S I 0 N
 
         
 
         LIBERTY MUTUAL INSURANCE
 
         COMPANY,
 
         
 
            Insurance Carrier,
 
             Defendants.
 
         
 
         _________________________________________________________________
 
         
 
         
 
         1402.40 - 1803
 
         
 
              Deputy affirmed in awarding claimant 250 weeks of benefits 
 
         for permanent partial disability.  Claimant was 43 years old at 
 
         the time of the arbitration hearing and was attending community 
 
         college.  Claimant hoped to pursue a bachelor's degree possibly 
 
         in accounting at a university.  Defendants argued that if 
 
         claimant finishes college and chooses business as a career, there 
 
         are a multitude of career choices and the opportunities are 
 
         limitless.  However, it is claimant's disability as it presently 
 
         exists which must be evaluated.
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBRA K. RISIUS,
 
         
 
              Claimant,
 
                                                 FILE NO. 738729
 
         vs.
 
                                              A R B I T R A T I O N
 
         TODD CORPORATION,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Debra K. 
 
         Risius, claimant, against Todd Corporation, employer (hereinafter 
 
         referred to as Todd), for workers' compensation benefits as a 
 
         result of an alleged injury on June 9, 1983.  On March 15, 1988, 
 
         a hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Testimony was 
 
         received during the hearing only from claimant.  The exhibits 
 
         received into the evidence at the hearing are listed in the 
 
         prehearing report.  According to the prehearing report, the 
 
         parties have stipulated to the following matters:
 
         
 
              1.  On June 9, 1983, claimant received an injury which arose 
 
         out of and in the course of employment with Todd;
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $118.94 
 
         per week;
 
         
 
              3.  Claimant last worked for Todd on August 11, 1983;
 
         
 
              4.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole; and,
 
         
 
              5.  All requested medical benefits have been or will be paid 
 
         by defendant.
 
         
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              1.  Whether there is a causal relationship between the work 
 

 
         
 
         
 
         
 
         RISIUS V. TODD CORPORATION
 
         Page   2
 
         
 
         injury and the claimed disability; and,
 
         
 
              2.  The extent of weekly disability benefits to which 
 
         claimant is entitled.
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that she worked for Todd on two occasions 
 
         from 1977 through 1979 and from 1980 until August 11, 1983 as a 
 
         pant hanger, steamer, folder and sorter.  Todd is engaged in 
 
         industrial laundry business.  Claimant stated at hearing that she 
 
         was terminated by Todd for being absent without a doctor's excuse 
 
         while she was recovering from a work injury.  According to 
 
         written evidence, ToddOs position was that upon receipt of a 
 
         medical evaluation of claimant's ability to return to work, 
 
         claimant never contacted them for three days in violation of 
 
         their absenteeism policy for unexcused absences.  The evidence 
 
         indicates that claimant was warned in writing on at least two 
 
         occasions about unexcused absences from work prior to her 
 
         termination.  Claimant responds that Dr. Fitzgerald, her treating 
 
         physician at the time, had provided the necessary medical 
 
         excuses.
 
         
 
              The facts surrounding the work injury are not in real 
 
         dispute.  Claimant testified that on June 9, 1983, while pushing 
 
         a cart up a ramp weighing 500 to 700 pounds loaded with clothing, 
 
         she slipped and the cart rolled backwards pinning her between the 
 
         cart she was pushing and another cart behind her.  Claimant said 
 
         that she was struck in the middle of her back causing pain in 
 
         both the mid to lower back areas.  Claimant did not seek 
 
         immediate treatment, but after two days she sought out and 
 
         received chiropractic treatments from S. M. Fitzgerald, D.C., 
 
         consisting of adjustments twice a week for approximately two 
 
         months.  During this time claimant stated to physicians involved 
 
         in this case that the pain began to radiate into her hips and 
 
         buttocks and she developed headaches.  Claimant then returned to 
 
         work for a couple of days but she states that she again 
 
         experience a recurrence of pain and returned to Dr. Fitzgerald.  
 
         According to claimant, the doctor excused her from work for 
 
         another two weeks.
 
         
 
              Claimant was then told to submit to medical evaluation at 
 
         the Medical Occupational Evaluation Center at Mercy Hospital in 
 
         Des Moines, Iowa.  After their evaluation of claimant, the 
 
         physical therapist stated that claimant could return to work but 
 
         should receive physical therapy such as therapeutic swimming, 
 
         Williams exercises and instruction in proper body mechanics.  The 
 
         therapist also stated that until she regains full recuperation 
 
         she should avoid twisting, bending, reaching overhead and heavy 
 

 
         
 
         
 
         
 
         RISIUS V. TODD CORPORATION
 
         Page   3
 
         
 
         lifting.  Claimant said that she performed this type of activity 
 
         at Todd.   The orthopedic surgeon at Mercy Center, Bernard 
 
         Hillyer, M.D., stated in his report that claimant does not have 
 
         functional impairment and that she could return to work.  
 
         However, he added that such a return to work should coincide with 
 
         physical therapy and possible use of anti-inflammatory 
 
         medication.  A functional capabilities report was prepared by Dr. 
 
         Hillyer which indicates that although claimant can work an eight 
 
         hour job, she can only bend, stoop, squat, crawl or climb 
 
         frequently as opposed to continuously and can only occasionally 
 
         lift over 50 pounds and should never lift over 75 pounds.  
 
         According to a transferable skills report from the Center:  "If 
 
         job change does become a serious consideration for Debra, it 
 
         would appear to be in her best interest to prepare herself for a 
 
         less physically demanding occupation in order to prevent the 
 
         reoccurrence of her problems.O Claimant was then terminated by 
 
         Todd for the reasons listed above.
 
         
 
              Claimant did not seek further evaluation or treatment of her 
 
         condition after her termination.  Claimant also did not seek 
 
         employment for a period of two to three years.  Claimant, 
 
         however, testified she continues to have pain and to experience 
 
         difficulties in her work as a housewife and mother after her 
 
         termination at Todd.  She explained that she did not realize that 
 
         she was eligible to receive further treatment or workers' 
 
         compensation benefits until she was informed of this fact by her 
 
         current attorney when she testified at a hearing dealing with a 
 
         sex discrimination complaint filed by one of her acquaintance.
 
         
 
              Claimant then, with the help of her attorney, was evaluated 
 
         at defendant's expense, by Thomas A. Carlstrom, M.D., a 
 
         neurosurgeon in September, 1986, with complaints of continuous 
 
         pain since the injury which is gradually worsening.  At hearing 
 
         claimant testified that she was having difficulties getting out 
 
         of bed in the morning due to low back and hip pain.  She also 
 
         complained of headaches and dizziness.  Dr. Carlstrom found no 
 
         obvious neurological defects but after his examination and tests 
 
         he said that claimant seems to have: "...persistent low-back pain 
 
         from a mild to moderate injury."  Dr. Carlstrom did not recommend 
 
         surgery and doubted that any specific treatment would be 
 
         beneficial to claimant.  He stated that claimant probably reached 
 
         maximum healing in September or October of 1983.  If claimant 
 
         returns to work, the doctor felt that claimant should have a 35 
 
         pound lifting restriction.   He finally opined that claimant 
 
         "probably has suffered a small permanent impairment and would 
 
         rate that at about 2-3 percent of the body as a whole.O
 
         
 
              Claimant was then examined by Robert Walker, M.D., an 
 
         orthopedic surgeon, in July, 1987.  According to Dr. Walker, 
 
         claimant complained of trouble sleeping, difficulty getting out 
 
         of bed, difficulty driving a car, radiating low back pain and hip 
 
         pain, inability to sit or walk for prolonged periods and 
 
         headaches once a week since the accident.  Dr. Walker diagnosed a 
 
         severe sprain of the lumbosacral joint and entrapment of the 
 
         right S-1 nerve root and adhesions around the nerve root.  Dr. 
 
         Walker rates claimant's impairment after suitable treatment as 18 
 
         percent or "possibly less."
 
         
 
              In October, 1987, Dr. Carlstrom reports that he saw claimant 
 
         again in April, 1987, for complaints of worsening pain since his 
 

 
         
 
         
 
         
 
         RISIUS V. TODD CORPORATION
 
         Page   4
 
         
 
         last evaluation.  Dr. Carlstrom also specifically disagreed with 
 
         Dr. Walker's rating given his own findings and reiterated his own 
 
         rating.  Also, on October 30, 1987, Dr. Carlstrom states that if 
 
         claimant's symptoms have worsened since leaving Todd: "...that 
 
         some intervening cause should be considered the cause of her 
 
         deterioration."
 
         
 
              Claimant testified that she had no prior back injuries but 
 
         admitted to receiving treatment from a Dr. Garcia (first name 
 
         unknown) in February, 1981, for low back pain and radiating pain 
 
         in both legs after heavy "tugging" at Todd.
 
         
 
              Claimant testified in her deposition in April, 1987, that 
 
         she had not looked for work at that time but stated that since 
 
         her deposition she has applied for over 100 jobs without success. 
 
          Currently, she is still restricted by Dr. Carlstrom from lifting 
 
         over 35 pounds.  Claimant now is helping out in a kitchen at a 
 
         senior citizens center for no pay because the county is helping 
 
         her pay her fuel bills.
 
         
 
              ClaimantOs life situation has changed since her deposition 
 
         causing her to be more interested in returning to work.  At the 
 
         time of the deposition, claimant and her children were totally 
 
         supported by her husband.  Although she continues at the present 
 
         time to receive support, she has petitioned for a divorced and 
 
         her husband is no longer living with her and the children.  
 
         Claimant stated that she wants to work and is planning on 
 
         attending vocational rehabilitation classes available as soon as 
 
         they can be scheduled by her rehabilitation counselor, Terry 
 
         Donahue.
 
         
 
              Claimant testified that her past employment consists of 
 
         light work as a packager of "running boards", a clerk at Younkers 
 
         and as a bench press operator.  She also has worked for a year 
 
         and a half as a driver of a soda pop vending truck.  This vending 
 
         job involved carrying the cases of pop to and from the truck.  
 
         According to the vocational rehabilitation consultant, Clark 
 
         Williams, claimant's earnings in these jobs were approximately 
 
         minimum wage from $3.35 to $3.50 per hour.  According to 
 
         Williams, claimant is employable outside of her home if claimant 
 
         is "diligent in job seeking and in learning appropriate job 
 
         seeking skills.O  Williams did not identify the jobs available or 
 
         their potential earnings as compared to her earnings at the time 
 
         of the work injury in this case.
 
         
 
              Claimant stated at the hearing that she is 30 years of age 
 
         and has a high school education.  She is the sole head of 
 
         household and must have available daycare to be employed.
 
         
 
              Claimant's appearance and demeanor at the hearing indicate 
 
         that she was testifying in a candid and truthful manner.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 

 
         
 
         
 
         
 
         RISIUS V. TODD CORPORATION
 
         Page   5
 
         
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity. however, in some instances, such as a job transfer 
 
         caused by a work injury, permanent disability benefits can be 
 
         awarded without a showing of a causal connection to a physical 
 
         change of condition.  Blacksmith v. All-American, Inc., 290 
 
         N.W.2d 348, 354 (Iowa 1980); McSpadden Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  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 v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, it the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).   
 
         such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).   To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, the evidence clearly establishes 
 
         that claimant has a significant degree of permanent impairment.  
 
         The only dispute between Dr. Carlstrom and Dr. Walker is the 
 
         extent of her disability.  The fighting issue in this case is the 
 
         causal connection of claimant's current condition to the work 
 
         injury of June, 1983.
 
         
 
              As pointed out by defendants in their brief, Dr. Walker did 
 
         not give a specific causal connection opinion.  However, a 
 
         reading of Dr. Walker's report clearly leaves this deputy 
 
         commissioner with the impression that he believes that his 
 
         functional impairment rating is attributable to the work injury 
 
         in this case.  Dr. Walker simply states no history of injury or 
 
         other injurious activity other than the original work injury.  
 
         The views of Dr. Carlstrom are somewhat confusing as he 
 
         originally gave a two to three percent rating which he clearly 
 
         felt stemmed from the original work injury and later on stated 
 
         that if claimant's condition deteriorated after she left work it 
 
         was due to other factors. his later opinion was given after he 
 
         had seen claimant for a second time with additional complaints of 
 
         a worsened condition.  The undersigned believes that a logical 
 
         interpretation of Dr. Carlstrom's opinions is that he rated 
 

 
         
 
         
 
         
 
         RISIUS V. TODD CORPORATION
 
         Page   6
 
         
 
         claimant's impairment after the 1983 injury as a two to three 
 
         percent impairment but does not believe that claimant's 
 
         additional complaints since September, 1985, are work related.  
 
         With reference to the opinions of the only medical doctor to 
 
         examine claimant in 1983, Dr. Hillyer opined that claimant did 
 
         not suffer permanent impairment.  This opinion is obviously based 
 
         on the views of both himself and his therapist that claimant's 
 
         back condition would improve with treatment.  As claimant did not 
 
         receive the treatment he recommended, it is unknown what his 
 
         views today would be.  Dr. Walker, quite frankly, has a much 
 
         similar view as he himself is unable to precisely rate claimant's 
 
         impairment without knowing the success of treatment.  Claimant 
 
         simply has not received much in the line of treatment since she 
 
         was terminated in 1983.
 
         
 
              Therefore, the greater weight of the evidence demonstrates 
 
         that claimant has suffered at least a two to three percent 
 
         permanent partial impairment as a result of the June, 1983 
 
         injury.  The evidence of prior back problems in February, 1981, 
 
         is simply too isolated to demonstrate a prior permanent 
 
         impairment or prior disability.  Claimant has not shown by the 
 
         greater weight of evidence that all of her current problems are 
 
         attributable to the June, 1983, incident given the views of Dr. 
 
         Carlstrom.  Obviously, there will be considerable dispute in the 
 
         future as to what extent, if any, the original injury is causing 
 
         claimant's current problems.  However, this situation is 
 
         unavoidable given the evidence in this case.  It is apparent that 
 
         the original work injury is playing some role in her current 
 
         medical problems but the medical experts will have to iron out 
 
         this question in the future when it comes to assessing the cost 
 
         of future medical care.
 
         
 
              It should be noted that even it no permanent partial 
 
         impairment were found in this case, claimant would be entitled to 
 
         permanent disability benefits under the theory of Blacksmith v. 
 
         All-American, Inc.. It is apparent from the evidence that 
 
         claimant was terminated due to her work injury.  ToddOs 
 
         interpretation of the Mercy Hospital report as a release to 
 
         return to work is not reasonable.  Dr. Hillyer and his physical 
 
         therapist only gave a conditional release if claimant were given 
 
         physical therapy and medication and then the release was only to 
 
         restricted duty.  None of this treatment was offered and claimant 
 
         was simply terminated for what appeared to this deputy 
 
         commissioner as a rather weak excuse to terminate an injured 
 
         worker.
 
         
 
              II. Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 

 
         
 
         
 
         
 
         RISIUS V. TODD CORPORATION
 
         Page   7
 
         
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              Claimant's medical condition before the work injury in this 
 
         case appeared to be excellent and she had no prior functional 
 
         impairments or ascertainable industrial disabilities.  Claimant 
 
         was tully able to perform physical tasks involving heavy lifting; 
 
         repetitive lifting, bending, twisting and stooping; and prolonged 
 
         standing and sitting.
 
         
 
              Dr. Carlstrom has restricted claimant's work activities by 
 
         prohibiting heavy physical work.  Claimant's medical condition 
 
         prevents her from returning to her former work at the time of the 
 
         work injury and many other jobs that claimant has held in the 
 
         past.
 

 
         
 
         
 
         
 
         RISIUS V. TODD CORPORATION
 
         Page   8
 
         
 
         
 
              Apart from her lost earnings during her healing period which 
 
         will be compensated by healing period benefits, claimant has 
 
         suffered a significant loss in actual earnings as a result of her 
 
         inability to return to work since 1983.
 
         
 
              Claimant has shown that suitable work will be difficult for 
 
         her to obtain from her recent unsuccessful efforts to apply for 
 
         work.  However, the undersigned cannot apply the so-called 
 
         "odd-lot" doctrine to transfer the burden of going forward with 
 
         the evidence to defendants as it is the policy of this agency 
 
         that such a doctrine cannot be applied unless raised at the time 
 
         of the prehearing conference.  Therefore, the views of the 
 
         vocational rehabilitation consultant, Williams, the only 
 
         rehabilitation consultant to submit a report in this case, is 
 
         accepted in that claimant is employable so long as she diligently 
 
         makes an effort to seek such employment and given proper job 
 
         seeking skills by the defendant.
 
         
 
              Claimant is 30 years of age and relatively young.  Her age 
 
         is no detriment to vocational rehabilitation.  Claimant also has 
 
         prior clerical experience and is a good candidate in the future 
 
         for clerical and other sedentary unskilled work.  Although this 
 
         work is low pay, claimant was not highly paid in her work at 
 
         Todd.
 
         
 
              As it could not be found that all of claimant's current 
 
         physical difficulties are attributable to the June, 1983, work 
 
         injury, the industrial disability award was significantly 
 
         lowered.  An additional 10 percent, however, was added due to 
 
         apparent termination of claimant as a result of her work injury.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 20 percent loss of 
 
         her earning capacity from her work injury.  Based upon such a 
 
         finding claimant is entitled as a matter of law to 100 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 20 percent of 500 weeks the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability benefits, claimant is entitled to weekly benefits for 
 
         healing period under Iowa Code section 85.34 from the date of 
 
         injury until she returns to work; until she is medically capable 
 
         of returning to substantially similar work to the work she was 
 
         performing at the time of the injury; or until it is indicated 
 
         that significant improvement from the injury is not anticipated, 
 
         whichever occurs first.
 
         
 
              According to Dr. Carlstrom, claimant did not reach maximum 
 
         healing until September or October of 1983.  Claimant was 
 
         terminated on.August 11, 1983.  Therefore, healing period 
 
         benefits will be reinstated from August 11, 1983 until October 
 
         31, 1983.  Permanent partial disability benefits will then begin 
 
         as of November 1, 1983.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 

 
         
 
         
 
         
 
         RISIUS V. TODD CORPORATION
 
         Page   9
 
         
 
         
 
              2.  The work injury of June 9, 1983 was a cause of a period 
 
         of disability from work beginning on August 11, 1983 and ending 
 
         on October 31, 1983, at which time claimant reached maximum 
 
         healing.
 
         
 
              3.  The work injury of June 9, 1983, was a cause of a two to 
 
         three percent permanent partial impairment to the body as a whole 
 
         and of permanent restrictions upon claimantOs physical activity 
 
         consisting of no heavy physical work and no lifting over 35 
 
         pounds.  Claimant has not shown that the worsening of her 
 
         condition since September, 1985, is work related.
 
         
 
              The work injury of June 9, 1983, and the resulting permanent 
 
         partial impairment and work restriction was a cause of a 20 
 
         percent loss of earning capacity.  Claimant was terminated by 
 
         Todd solely on the basis of her absences from work due to work 
 
         injury.  Claimant is unable to return to work that she was 
 
         performing at Todd at the time of the work injury due to work 
 
         restrictions imposed by physicians as a result of the work 
 
         injury.  Claimant's past work history consists of work she can no 
 
         longer perform.  Claimant's work history also demonstrates work 
 
         that she can perform given her restrictions.  Claimant is 
 
         employable given continued diligence on her part in looking for 
 
         work.  Claimant is 30 years of age and is a high school 
 
         graduate.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits and healing 
 
         period benefits awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant shall pay to claimant one hundred (100) weeks 
 
         of permanent partial disability benefits at the rate of one 
 
         hundred eighteen and 94/100 dollars ($118.94) per week from 
 
         November 1, 1983.
 
         
 
              2. Defendant shall pay to claimant healing period benefits 
 
         from August 11, 1983 through October 31, 1983 at the rate of one 
 
         hundred eighteen and 94/100 dollars ($118.94) per week.
 
         
 
              3.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              4.  Defendant shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              5.   Defendant shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              6. Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency under Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 20th day of May, 1988.
 

 
         
 
         
 
         
 
         RISIUS V. TODD CORPORATION
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Stephen D. Lombardi
 
         Attorney at Law
 
         8230 Hickman Road, Suite G
 
         Des Moines, Iowa 50322
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                     1803
 
                                                     Filed May 20, 1988
 
                                                     LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBRA K. RISIUS,
 
         
 
              Claimant,
 
                                                 FILE NO. 738729
 
         vs.
 
                                              A R B I T R A T I 0 N
 
         TODD CORPORATION,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant awarded benefits for a 20 percent industrial 
 
         disability.  Not all of her current problems were found to be 
 
         work related and she was also found to be eligible for sedentary 
 
         work. However, claimant was fired as a result of her work injury 
 
         and she sustained a large loss of earnings as a result of her 
 
         inability to return to work.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBRA K. RISIUS,
 
                                                 File No. 738729
 
              Claimant,
 
                                                 D E C I S I 0 N
 
         vs.
 
                                                        0 N
 
         TODD CORPORATION,
 
                                                   R E M A N D
 
              Employer,
 
              Self-Insured,                          F I L E D
 
              Defendant.
 
                                                    NOV 06 1989
 
         
 
                                           IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              On October 17, 1989, this matter was remanded to the 
 
         undersigned for consideration of exhibit 4, the deposition of 
 
         Thomas Carlstrom, M.D., which had been excluded from the evidence 
 
         at hearing.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is added to the summary portion of the 
 
         arbitration decision:
 
         
 
              Dr. Carlstrom, in his testimony, clearly stated that despite 
 
         the written office notes indicating a permanent partial 
 
         impairment of three percent following his examination of claimant 
 
         subsequent to the work injury of June 9, 1983, the worsening of 
 
         claimant's condition after leaving Todd Corporation indicated to 
 
         him that it was too speculative to give a causal connection 
 
         opinion that any of claimant's current problems are due to the 
 
         work injury.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              In the original arbitration decision, absent the deposition 
 
         of Dr. Carlstrom, the undersigned was forced to interpret Dr. 
 
         Carlstrom's written reports and office notes.  It was concluded 
 
         in the original deliberation that these records showed at least 
 
         that a portion of claimant's difficulties were attributable to 
 
         the 1983 injury.  This conclusion is no longer possible given Dr. 
 
         Carlstrom's deposition testimony.  The findings and award shall 
 
         be modified accordingly.
 
         
 
              However, it was found that claimant was terminated as a 
 
         result of the injury and resulting disability (albeit temporary). 
 
         Dr. Carlstrom never opined that his treatment and claimant's 
 
         immediate symptoms after 1983 were not work related.  Before 
 
                                                
 
                                                         
 
         termination, claimant's capabilities were evaluated by the staff 
 
         of Mercy Hospital.  Although she was found capable of work, she 
 
         was instructed to avoid "twisting, bending, reaching overhead and 
 
         heavy lifting."  Todd was aware of this report before 
 
         termination. Claimant testified that her work at Todd involved 
 
         the activity she was to avoid.  Claimant was found credible from 
 
         her demeanor at hearing.  No other work was offered by Todd.  
 
         Todd's only response was to wait three days and then terminate 
 
         claimant for absenteeism.  The arbitration decision stated that 
 
         Todd's interpretation of the Mercy release as a release to full 
 
         duty was unreasonable.  It was found that Todd knew full well why 
 
         she was not present at work.  The arbitration decision stated 
 
         "...claimant was simply terminated for what appeared to this 
 
         deputy commissioner as a rather weak excuse to terminate an 
 
         injured worker."
 
         
 
              The Iowa Supreme Court in McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980) stated that "a defendant-employer's 
 
         refusal to give any sort of work to a claimant after he suffers 
 
         his affliction may justify an award of disability."  In 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         the case cited in the arbitration decision, the court reiterated 
 
         that concept that if a work injury results in a job transfer 
 
         resulting in a loss of earnings, an entitlement to industrial 
 
         disability benefits can be established even if no permanent 
 
         functional loss is shown.  In the original arbitration decision, 
 
         industrial disability was found solely on the basis of the 
 
         termination due to the work injury and temporary loss of 
 
         earnings.  This portion of the award (50 weeks) shall remain 
 
         intact.
 
         
 
                              FINDINGS OF FACT
 
         
 
              With reference to the findings of fact portion of the 
 
         arbitration:
 
         
 
              1.  The number "4" is added immediately preceding the first 
 
         sentence of the unnumbered fourth paragraph.
 
         
 
              2.  The first sentence of finding no. 3 is stricken and the 
 
         following inserted in lieu thereof:
 
         
 
              Claimant has not shown that the work injury of June 9, 1983, 
 
         is a cause of permanent functional impairment.
 
         
 
              3.  The first sentence of finding no. 4 is stricken and the 
 
         following inserted in lieu thereof:
 
         
 
              The work injury of June 9, 1983, was a cause of a 10 percent 
 
         loss of earning capacity.
 
         
 
              4.  The third sentence of finding no. 4 is stricken in its 
 
         entirety.
 
         
 
                              CONCLUSION OF LAW
 
                                                
 
                                                         
 
         
 
              The conclusion of law set forth in the arbitration decision 
 
         is unchanged.
 
         
 
                                      ORDER
 
         
 
              With reference to the Order section of the arbitration 
 
         decision:
 
         
 
              1.  Paragraph one is stricken and the following insert in 
 
         lieu thereof:
 
         
 
              1.  Defendant shall pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         eighteen and 94/100 dollars (($118.94) per week from November 1, 
 
         1983.
 
         
 
              2.  The remaining orders are unchanged.
 
         
 
         
 
              Signed and filed this 6th day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Stephen D. Lombardi
 
         Attorney at Law
 
         2190 NW 82nd
 
         Des Moines, IA  50322
 
         
 
         Mr. E. J. Kelly
 
         Attorney at Law
 
         Terrace Center, STE 111
 
         2700 Grand Ave.
 
         Des Moines, IA  50312
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1804
 
                                            Filed November 6, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DEBRA K. RISIUS,
 
                                                       File No. 738729
 
              Claimant,
 
                                                      D E C I S I 0 N
 
         vs.
 
                                                           0 N
 
         TODD CORPORATION,
 
                                                         R E M A N D
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1804
 
         
 
              Remand for consideration of deposition excluded from 
 
         hearing. In light of deposition, the award of permanent partial 
 
         disability was reduced.  Although functional loss will no longer 
 
         be found, claimant was still terminated due to a work injury and 
 
         one half the original award was maintained under the 
 
         McSpadden/Blacksmith hearing.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         DEBRA K. RISIUS,
 
         
 
              Claimant,                              File No. 738729
 
         
 
         vs.                                           R U L I N G 
 
         
 
         TODD CORPORATION,                                 O N
 
         
 
              Employer,                                 O R D E R
 
         
 
         and                                             N U N C
 
         
 
                                                          P R O
 
         
 
                                                         T U N C
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              The decision of May 20, 1988 is modified to correct 
 
         typographical errors as requested by defendants in the motion of 
 
         May 24, 1988.
 
         
 
              Signed and filed this 26th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                        LARRY P. WALSHIRE
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Stephen Lombardi
 
         Attorney at Law
 
         
 
         E J  Kelly 
 
         Attorney at Law.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LEONARD PEARSON,
 
         
 
              Claimant,
 
                                                      File No. 738738
 
         VS.
 
         
 
         IOWA CONCRETE PRODUCTS INC.,                  R E V I E W -
 
         
 
              Employer,                             R E 0 P E N I N G
 
         
 
         and                                         D E C I S I 0 N
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in review-reopening brought by Leonard 
 
         Pearson, claimant, against Iowa Concrete Products, Inc., 
 
         employer, and Wausau Insurance Companies, insurance carrier, to 
 
         recover additional benefits under the Iowa Workers' Compensation 
 
         Act as a result of an alleged injury sustained July 18, 1983.  
 
         The matters addressed in file numbers 738738, 783442, 636855 and 
 
         814511 came on for hearing before the undersigned deputy 
 
         industrial commissioner January 27, 1988.  The record was 
 
         considered fully submitted at the close of the hearing.  The 
 
         record in this case consists of the testimony of claimant and 
 
         Debra Pearson, his wife; and joint exhibits 1 through 20, 
 
         inclusive.
 
         
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order approved January 
 
         27, 1988, the issues presented for determination are:
 
         
 
              1.  Whether there has been a change of claimantOs condition 
 
         to warrant review-reopening since the settlement of April 1985;
 
         
 
              2.  The extent of claimant's entitlement, if any, to 
 
         additional permanent partial disability benefits; and
 
         
 
              3.  Claimant's entitlement to certain medical benefits 
 
         pursuant to Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              On May 6, 1980, claimant fell off a ladder onto a solid 
 
         cement floor landing on his left arm and shoulder.  Claimant 
 
         testified he was off work for an extensive period of time, 
 
         underwent at least three different surgical procedures on his 
 
         left elbow and hand and returned to work in approximately August 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC,
 
         Page   2
 
         
 
         1981 after receiving a settlement on permanent partial disability 
 
         benefits.  On July 18, 1983, while putting a fork on a forklift, 
 
         claimant's left foot was injured when a fork fell across it.  
 
         Claimant explained he had two surgical procedures done on his 
 
         foot during which "hardware" was put in.  On December 13, 1984, 
 
         bilateral carpal tunnel surgery was performed.  Defendants agree 
 
         all three of these injuries arose out of and in the course of 
 
         claimant's employment.
 
         
 
              Claimant testified December 5 was the last day he worked in 
 
         1985 and that he had been having trouble with his shoulder 
 
         throughout the months of November and December 1985.  He 
 
         explained he had been rolling and patching pipe and running a 
 
         material truck using a pick and shovel.  Claimant stated he saw 
 
         Robb Fulton, M.D., who prescribed pain medication and physical 
 
         therapy and that he was released to return to work January 31, 
 
         1986.
 
         
 
              Claimant testified he continues to experience pain in his 
 
         shoulder, that he has a loss of grip in both hands, and that he 
 
         is able to reach above his head but not without pain.  He 
 
         acknowledged he is able to perform all of the responsibilities of 
 
         his job, that he is under no restrictions, and that he fully 
 
         intends to continue in his employment with Iowa Concrete 
 
         Products.  Claimant relates his pain to the accident of 1980 and 
 
         admitted he is not now under any current medical treatment for 
 
         any of these injuries.
 
         
 
              Debra Pearson testified she was aware of no problems 
 
         claimant had with his hands, wrists, shoulder, or left foot prior 
 
         to his work injuries.  She opined claimant tends to "baby" 
 
         himself and put restrictions on himself as a result of perceived 
 
         pain.  She did not describe these symptoms of pain as constant or 
 
         continual but rather testified that claimant "feels pretty good 
 
         most generally.O
 
         
 
              X-rays taken following claimant's July 18, 1983 foot injury 
 
         did not reveal evidence of fracture but showed diastasis of the 
 
         4th and 5th metatarsals.  William Boulden, M.D., operated on 
 
         claimant November 9, 1983 for repair of this condition and, when 
 
         claimant did not recover as expected, performed an open reduction 
 
         and internal fixation of metatarsal diastasis and fusion using 3 
 
         AO screws to solidify the fixation.  Claimant was given a 10 
 
         percent permanent partial impairment rating of the left foot from 
 
         Dr. Boulden on June 6, 1984.  Claimant was also given a 45 
 
         percent permanent partial disability rating due to the injury 
 
         from Dr. Charles Parker, Podiatrist, on November 1, 1984.
 
              Claimant has had multiple operations on his left upper 
 
         extremity since his fall from the ladder in May 1980, including 
 
         two left carpal tunnel releases, two cubital tunnel compressions 
 
         and a left lateral epicondylitis release.  On July 17, 1981, 
 
         claimant underwent surgery by J.D. Bell, D.O., for a nerve 
 
         entrapment syndrome on the left.  Further surgery was done 
 
         October 19, 1982 by Peter D. Wirtz, M.D., for tendon removal at 
 
         the left elbow.  Arnis Grundberg, M.D., performed an ulnar nerve 
 
         exploration and transfer at the elbow and in the wrist area.  Dr. 
 
         Wirtz released claimant to return to work opining claimant had no 
 
         permanent partial impairment.  Dr. Grundberg gave claimant a five 
 
         percent permanent partial impairment rating of the upper left 
 
         extremity.
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC,
 
         Page   3
 
         
 
         
 
              Claimant was evaluated February 10, 1987 by Robert 
 
         Breedlove, M.D., who concluded:
 
         
 
                 I feel that the 10% permanent partial impairment of 
 
              the left foot is appropriate at this point considering 
 
              the patient's inability to walk long distances and the 
 
              difficulty he has with kneeling and bending forward 
 
              which is required in part of his job.  I would rate the 
 
              permanent partial impairment of his left shoulder at 7% 
 
              of the left upper extremity.  I base this on the fact 
 
              that he has 120 degrees of abduction for a 3% permanent 
 
              partial impairment.  He has 150 degrees of forward 
 
              flexion but he also has moderate pain for the last 60 
 
              degrees and would rate that at 2% permanent partial 
 
              impairment.  Internal rotation 1% and extension 1%.
 
         
 
         (Joint Exhibit 8, page 5)
 
         
 
              Dr. Breedlove recommended:
 
         
 
                 Treatment for the patient's left foot pain would 
 
              include obtaining Rockport shoes in order to better 
 
              cushion his feet when he is walking.  They do not make 
 
              steel toed Rockport shoes, so I feel Sorbothane full 
 
              sole inserts would be applicable for his work boots.
 
         
 
         (Jt. Ex. 8, p. 5)
 
         
 
              With regard to claimant's alleged December 1985 injury, Dr. 
 
         Breedlove writes:
 
         
 
                 Mr. Pearson states that either in November or 
 
              December 1985 he was unloading frozen sand off of a 
 
              truck using a pick and shovel and then began 
 
              experiencing left shoulder pain.  On further 
 
              questioning, the patient denies having had left 
 
              shoulder pain previous to this accident.  He did 
 
              mention the multiple carpal tunnel releases and ulnar 
 
              nerve releases.  In reviewing the records that I have 
 
              available from December 13, 1985, by Dr. Fulton, he 
 
              states that Mr. Pearson had pain in the left shoulder 
 
              in the fall of 1984.  He also states that in 1983 
 
              following an accident at work in which he fell off of a 
 
              ladder onto the concrete floor landing on his left 
 
              shoulder he did experience some difficulty with pain.
 
         
 
         (Jt. Ex. 8, p. 3)
 
         
 
              Claimant was seen for evaluation February 6, 1987, by Jerome 
 
         G. Bashara, M.D., who concluded:
 
         
 
                 In reviewing the history and all of the records on 
 
              this patient, it is my opinion that the patient has a 
 
              15% permanent partial physical impairment of his leet 
 
              upper extremity.  I believe that 10% of this impairment 
 
              rating is related to an injury which he sustained at 
 
              work on May 10, 1980 to his shoulder and elbow.
 
         
 
                 I believe that 5% of the above 15% rating is related 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC,
 
         Page   4
 
         
 
              to repetitive trauma to his wrist which he sustained at 
 
              work over the next several year period resulting in the 
 
              development of a carpal tunnel syndrome with subsequent 
 
              surgery.
 
         
 
         (Jt. Ex. 6, p. 1)
 
         
 
              Dr. Bashara makes no note of any alleged December 1985 
 
         injury.
 
         
 
              Claimant saw Robb Fulton, D.O., November 27, 1985 for pain 
 
         in the left shoulder radiating to the left elbow.  Dr. Fulton 
 
         notes the onset of pain was in 1983 "following an accident at 
 
         work in which he fell off a ladder onto concrete floor on his 
 
         left shoulder."  Dr. Fulton found "tenderness to palpation of 
 
         left shoulder muscles in general and on the tendon of the long 
 
         head of left biceps in particular.  There is significant weakness 
 
         of left grip, forearm, triceps and biceps; however, range of 
 
         motion is essentially normal." (Jt. Ex. 8, p. 2)
 
         
 
                                  APPLICABLE LAW
 
         
 
              Iowa Code section 86.14(2) provides:
 
         
 
              In a proceeding to reopen an award for payments or 
 
              agreement for settlement as provided by section 86.13, 
 
              inquiry shall be into whether or not the condition of 
 
              the employee warrants an end to, diminishment of, or 
 
              increase of compensation so awarded or agreed upon.
 
         
 
              A party seeking a review-reopening of an award or agreement 
 
         for settlement must demonstrate by a preponderance of the 
 
         evidence, a change of condition subsequent to an initial award or 
 
         agreement.  Stice v. Consolidated Ind. Coal Co., 228 Iowa 1031, 
 
         1035, 291 N.W. 452 (1940).  In Stice, the Iowa Supreme Court 
 
         stated that the Act's review-reopening provisions provide no 
 
         basis for concluding that "the commissioner is to re-determine 
 
         the condition of the employee which was adjudicated by the former 
 
         award.O  Id. at 1038.
 
         
 
              Iowa Code section 85.27 provides, in part:
 
         
 
                 The employer, for all injuries compensable under 
 
              this chapter or chapter 85A, shall furnish reasonable 
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 
              allow reasonably necessary transportation expenses 
 
              incurred for such services.
 
         
 
                                   ANALYSIS
 
         
 
              An agreement for settlement was filed in this case January 
 
         29, 1985 under which claimant was paid for 22 1/2 percent of the 
 
         left foot together with all reasonable medical expenses and 
 
         healing period benefits incident thereto.  As a scheduled injury, 
 
         disability to claimant's foot is evaluated by the functional 
 
         method.  Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 
 
         1983).  The medical evidence submitted shows no higher ,permanent 
 
         partial impairment rating currently than the amount paid in 
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC,
 
         Page   5
 
         
 
         disability on settlement.  Claimant has, therefore, failed to 
 
         establish a change of condition with respect to the impairment of 
 
         his left foot and is entitled to no further weekly benefits.  
 
         Claimant has, however, established his entitlement to the 
 
         Rockport shoes and Sorbothane full sole inserts for his work 
 
         boots as supplies for the reasonable treatment of the injury 
 
         pursuant to Iowa Code section 85.27.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following facts are found:
 
         
 
              1.  Claimant sustained an injury arising out of and in the 
 
         course of his employment July 18, 1983 when a fork fell across 
 
         his foot.
 
         
 
              2.  Claimant filed an agreement for settlement as a result 
 
         of the work injury under which he was paid 22 1/2 percent 
 
         permanent partial disability benefits of the left foot together 
 
         with all reasonable medical expenses and healing period benefits 
 
         incident thereto.
 
         
 
              3.  Medical evidence shows no higher permanent impairment 
 
         rating currently than the amount paid in disability for 
 
         claimant's scheduled injury.
 
         
 
              4.  There has been no change of claimant's condition since 
 
         the agreement for settlement.
 
         
 
              5.  Rockport shoes and Sorbothane full sole inserts are 
 
         supplies for the reasonable treatment of claimant's work injury 
 
         to which claimant has established his entitlement.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         following conclusions of law are made:
 
         
 
              Claimant has failed to meet his burden of proof that there 
 
         has been a change of condition since an agreement for settlement 
 
         was filed.
 
         
 
              Claimant has established his entitlement to Rockport shoes 
 
         and Sorbothane full sole inserts as supplies for the reasonable 
 
         treatment of the work injury.
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant is entitled to no further weekly benefits.
 
         
 
              Defendants shall reimburse claimant for the cost of Rockport 
 
         shoes and Sorbothane full sole inserts.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 

 
         
 
         
 
         
 
         PEARSON V. IOWA CONCRETE PRODUCTS, INC,
 
         Page   6
 
         
 
         
 
         
 
              Signed and filed this 26th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           DEBORAH A. DUBIK
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Marvin Duckworth
 
         Attorney at Law
 
         Terrace Center, Suite 111
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      2505; 1803
 
                                                      Filed 2-26-88
 
                                                      Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LEONARD PEARSON,
 
         
 
              Claimant,
 
                                                      File No. 738738
 
         VS.
 
         
 
         IOWA CONCRETE PRODUCTS INC.,                  R E V I E W -
 
         
 
              Employer,                              R E 0 P E N I N G
 
         
 
         and                                          D E C I S I 0 N
 
         
 
         WAUSAU INSURANCE COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2505; 1803
 
         
 
              Claimant failed to establish a change of condition since an 
 
         agreement for settlement for injury to his left foot.  Claimant 
 
         did establish his entitlement to shoes and shoe inserts as 
 
         medical supplies for the reasonable treatment of his injury.
 
 
 
         
 
         
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DAVID DUNAHOO,
 
        
 
            Claimant,
 
        
 
        vs.
 
                                                File No. 738889
 
        AMERICAN CONCRETE PRODUCTS,
 
                                             A R B I T R A T I O N
 
            Employer,
 
                                                D E C I S I O N
 
        and
 
        
 
        EMPLOYERS MUTUAL COMPANIES,                 F I L E D
 
        
 
             Insurance Carrier,                   JAN 19 1989
 
             Defendants.
 
                                              INDUSTRIAL SERVICES
 
             
 
             
 
                                 STATEMENT OF THE CASE
 
        
 
             This is a proceeding in arbitration brought by David 
 
             Dunahoo, claimant, against American Concrete Products, employer, 
 
             and Employers Mutual Companies, insurance carrier, to recover 
 
             benefits under the Iowa Workers' Compensation Act for an alleged 
 
             injury occurring on or about July 21, 1983. This matter was to 
 
             come on for hearing January 17, 1989 at 2:00 p.m. at the 
 
             conference room at the Iowa Division of Industrial Services in 
 
             Des Moines, Iowa.
 
        
 
            The undersigned was present. Neither claimant nor 
 
        defendants appeared.
 
        
 
            Claimant failed to present any evidence in support of the 
 
        allegations found in his original notice and petition. At the 
 
        time of the hearing, neither an agreement for settlement nor a 
 
        request for continuance were on file.
 
        
 
            Claimant has the burden of proving by a preponderance of the 
 
        evidence that he sustained an injury which arose out of and in 
 
        the course of his employment. McDowell v. Town of Clarksville, 
 
        241 N.W.2d 904 (Iowa 1976).
 
        
 
            WHEREFORE, it is found:
 
        
 
            1. Neither claimant nor defendants appeared at the 
 
        scheduled time and place of hearing.
 
        
 
            2. The undersigned deputy industrial commissioner was 
 
        present and prepared to proceed to hearing.
 
        
 
             3. At the time of the hearing, neither an agreement for 
 
             settlement nor a request for continuance was on file with the 
 
             industrial commissioner.
 
        
 
            4. Claimant failed to present any evidence to support 
 
        allegations of a compensable work injury.
 

 
        
 
 
 
 
 
        
 
            THEREFORE, it is ordered:
 
        
 
            Claimant has failed to meet his burden of proof that he 
 
        sustained an injury which arose out of and in the course of his 
 
        employment.
 
        
 
            Claimant takes nothing from this proceeding.
 
        
 
            Costs are taxed to the claimant pursuant to Division of 
 
        Industrial Services Rule 343-4.33.
 
        
 
             Signed and filed this 19th day of January, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Michael P. Holzworth
 
        Attorney at Law
 
        2600 72nd Street
 
        Des Moines, Iowa 50322
 
        
 
        Mr. Cecil L. Goettsch
 
        Mr. Brian L. Campbell
 
        Attorneys at Law
 
        1100 Des Moines Building
 
        Des Moines, Iowa 50309
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                            1400, 1402
 
                                            Filed January 19, 1989
 
                                            MICHELLE A. McGOVERN
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DAVID DUNAHOO,
 
        
 
            Claimant,
 
        
 
        vs.
 
                                                File No. 738889
 
        AMERICAN CONCRETE PRODUCTS,
 
                                             A R B I T R A T I O N
 
            Employer,
 
                                                D E C I S I O N
 
        and
 
        
 
        EMPLOYERS MUTUAL COMPANIES,
 
        
 
            Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        1400, 1402
 
        
 
             Neither claimant nor counsel appeared at the hearing. No 
 
             evidence in support of allegations of a compensable work injury 
 
             was presented and claimant therefore failed to meet his burden of 
 
             proof.