BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         RAYMOND E. PIROZEK
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         SWIFT INDEPENDENT PACKING,
 
                                               File No. 753643
 
              Employer,
 
                                                        753642/724893
 
         and
 
                                                A P P E A L
 
         NATIONAL UNION FIRE INSURANCE,
 
                                               D E C I S I 0 N
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND
 
         
 
              Defendants.
 
         _________________________________________________________________
 
         
 
              Claimant appeals and defendant employer and its insurer 
 
         cross-appeal from proposed consolidated arbitration and 
 
         review-reopening decisions in which claimant was awarded 
 
         scheduled permanent partial disability benefits for separate 
 
         injuries to his right hand, left hand and left leg and industrial 
 
         disability as a result of the combined injuries equal to less 
 
         than the value of the three individual scheduled awards.  The 
 
         record on appeal consists of the pleadings and filings of the 
 
         parties; the transcript of the combined hearing together with 
 
         claimant's exhibits 1 and 2 and defendants' exhibits A through E; 
 
         and the appeal briefs of all parties.
 
         
 
                                 ISSUES
 
         
 
              Claimant appellant states the issues as: "1.  Whether 
 
         Claimant suffered two or three injuries. 2. Whether Claimant has 
 
         proven an industrial disability in excess of 5.23% of the body."
 
         
 
              Cross-appellant contests the award of the costs of an 
 
         examination pursuant to section 85.39.
 
         
 
                            REVIEW OF EVIDENCE
 
         
 
              The decision of the deputy adequately and accurately sets 
 
         out the evidence pertinent to the issues and it will not be 
 
         reiterated herein.  Briefly stated claimant first began having 
 
         problems with his left wrist in January 1981.  He sought medical 
 
         .care in May or June 1981 and ultimately had carpal tunnel 
 
         release surgery on the left in November 1981.  He returned to 
 
         work in January 1982.  In June or July 1982 claimant began 
 
         receiving treatment for a similar condition in his right wrist.  
 
         His condition became better near the end of July but recurred in 
 

 
         November 1982.  He received conservative treatment for a time but 
 
         then had surgery for a right carpal tunnel release in October 
 
         1983.
 
         
 
              In January 1983 claimant injured his left knee.  Surgery was 
 
         performed in April 1983.
 
         
 
              Following each of the surgeries claimant returned to 
 
         employment with no restrictions.  The operating physician for the 
 
         left hand rated that impairment at five percent of the left arm.  
 
         The operating physician for the right hand and left knee gave 
 
         permanent impairment ratings of two percent for each hand and 
 
         five percent of the left leg.
 
         
 
              An examining physician rated claimant's impairment as four 
 
         percent of the left hand and seven percent of the right hand.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              The applicable law referenced in the proposed decision is 
 
         incorporated herein with the following modification and 
 
         additions.
 
         
 
              The third paragraph under II is deleted as the proposition 
 
         (although not pertinent to the outcome of this case) has been 
 
         clarified in the subsequent decision of Alpha L. Fulton v. Jimmy 
 
         Dean Meat Company, File No. 755039, July 28, 1986, holding the 
 
         responsibility of the employer in a second injury case is limited 
 
         to scheduled impairment.
 
         
 
              McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 
 
         1985) determines the date of injury for a gradual or cumulative 
 
         injury is when the employee is no longer able to work because of 
 
         pain or "physical inability."
 
         
 
              This latter citation gives increased credibility to the 
 
         finding that the injuries to claimant's two hands were 
 
         independent events rather than a simultaneous occurrence.
 
         
 
              Claimant's industrial disability or loss of future earning 
 
         capacity related to his injuries is minimal.  After each injury 
 
         he returned to the same employment as before.  His current layoff 
 
         status is in no way related to his injuries.  The finding of a 
 
         total of five percent industrial disability will not be 
 
         disturbed.
 
         
 
         
 
              Claimant sought an independent medical examination by a 
 
         physician of his own choice.  Although application was not made 
 
         prior to the examination, the condition precedent of an 
 
         evaluation made by an employer retained physician was present.  
 
         The application is now made for reimbursement of the reasonable 
 
         fee of the examination.  The provision for reimbursement does not 
 
         come into play until, as here, the defendants' liability is 
 
         established.  See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 
 
         194 (Iowa  1960).  The allowance of the reasonable fee for such 
 
         examination is correct.
 
         
 
              In all other respects the analysis and rationale of the 
 
         proposed decision is adopted.
 
         
 
              1.  Claimant was in the employ of Swift at all times 
 
         material herein.
 
         
 

 
         
 
         
 
         
 
         PIROZEK V. SWIFT INDEPENDENT PACKING
 
         Page   3
 
         
 
         
 
              2.  Claimant's job at Swift varied from time to time but 
 
         generally involved strenuous and repetitive tasks in meat 
 
         packing.
 
         
 
              3.  In November 1981, claimant suffered carpal tunnel 
 
         syndrome of the left wrist from his work activities which caused 
 
         absence from work and surgery to correct the problem.
 
         
 
              4.  On January 3, 1983, claimant injured his left knee which 
 
         caused absence from work and surgery to correct the problem.
 
         
 
              5.  In August and September 1983, claimant suffered carpal 
 
         tunnel syndrome of the right wrist which caused absence from work 
 
         and surgery to correct the problem.
 
         
 
              6.  Prior to 1981, claimant had no physical impairments or 
 
         ascertainable disabilities.
 
         
 
              7.  While in high school, claimant injured one of his knees 
 
         in a football game but the injury was not serious and claimant 
 
         fully recovered from the injury.
 
         
 
              8.  As a result of his work injuries, claimant has a five 
 
         percent permanent partial impairment of the left hand; a three 
 
         percent permanent partial impairment of his right hand; and a 
 
         five percent permanent partial impairment of his left leg.
 
         
 
              9.  Claimant's work injuries took several months to heal and 
 
         in each case required painful surgery.
 
         
 
              10.  Claimant continues to experience pain in varying 
 
         degrees when he uses his hands and knees in work activity.
 
         
 
              11.  Claimant's past work experience consists mostly of 
 
         packinghouse work.
 
         
 
              12.  No physician has restricted claimant's work activity as 
 
         a result of his work injuries, and his medical condition has not 
 
         prevented him from returning to the work he was performing at the 
 
         time of the work injuries.
 
              13.  Claimant has not suffered a significant loss in actual 
 
         earnings as a result of his disability other than the times he 
 
         was off work during his healing periods for which he has already 
 
         been compensated.
 
         
 
              14.  Claimant was 28 years old at the time of the hearing 
 
         and had not shown motivation to seek alternative employment, 
 
         vocational rehabilitation counseling or retraining despite the 
 
         fact that his plant was due to permanently close in a few weeks.
 
         
 
              15.  The closing of claimant's plant and his eventual loss 
 
         of work is purely the result of economic reasons unrelated to 
 
         claimant's work injuries.
 
         
 
              16.  Claimant's education and intelligence indicate an 
 
         average potential for vocational rehabilitation.
 
         
 
              17.  Claimant has not suffered a loss of earning capacity as 
 
         result of the knee injury and right hand injury alone.
 

 
         
 
         
 
         
 
         PIROZEK V. SWIFT INDEPENDENT PACKING
 
         Page   4
 
         
 
         
 
         
 
              18. Claimant has suffered a four percent loss in his earning 
 
         capacity as a result of both the left hand and left leg work 
 
         injuries and an additional one percent loss in his earning 
 
         capacity after the right hand injury as a result of the combined 
 
         effect of the left hand, right hand and left leg injuries.
 
         
 
              19. Claimant's permanent impairments were evaluated by Horst 
 
         Blume, M.D., retained by claimant after claimant had been 
 
         evaluated for permanent impairment by Swift.
 
         
 
              20.  Claimant was a credible witness.
 
         
 
              21.  Pursuant to the parties' stipulation, claimant's rate 
 
         of compensation for permanent disability to the left hand is 
 
         $204.21 from January 18, 1982; $233.10 from June 6, 1983 for left 
 
         leg disability and $233.66 from November 22, 1983 for disability 
 
         to the right hand.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that the work injuries of November 1981; January 3, 1983; and 
 
         August and September 1983 are a cause of permanent disability.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits from 
 
         defendant Swift for 9.5 weeks for permanent disability to the 
 
         left hand; 5.7 weeks for permanent disability to the right hand; 
 
         and 11 weeks for permanent disability to the left leg.  Claimant 
 
         has not established by a preponderance of the evidence 
 
         entitlement to permanent disability benefits from the Second 
 
         Injury Fund.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to reimbursement for the reasonable expenses of an 
 
         independent medical evaluation of his permanent impairment from 
 
         Horst Blume, M.D., in September 1984.
 
         
 
              WHEREFORE the decision of the deputy is affirmed with the 
 
         correction of the number of weeks of permanent partial 
 
         disability payable on the right and left hands.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant, Swift and National Union Fire Insurance 
 
         Company, shall pay to claimant the following permanent partial 
 
         disability benefits: nine and five-tenths (9.5) weeks at the rate 
 
         of two hundred four and 21/100 dollars ($204.21) per week from 
 
         January 18, 1982; eleven (11) weeks at the rate of two hundred 
 
         thirty-three and 10/100 dollars ($233.10) per week from June 6, 
 
         1983; and five and seven-tenths (5.7) weeks at the rate of two 
 
         hundred thirty-three and 66/100 dollars ($233.66) per week.
 
         
 
              That defendants shall pay claimant the reasonable cost, 
 

 
         
 
         
 
         
 
         PIROZEK V. SWIFT INDEPENDENT PACKING
 
         Page   5
 
         
 
         
 
         including necessary travel expenses, of the evaluation of 
 
         claimant by Horst Blume, M.D., in September 1984.
 
         
 
              That defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid either pursuant to memorandum of agreement or 
 
         voluntarily.
 
         
 
              That defendants pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
         
 
              That defendants, Swift and National Union Fire Insurance 
 
         Company, shall pay the costs of the arbitration and 
 
         review-reopening action pursuant to Division of Industrial 
 
         Services Rule 343-4.33, formerly Industrial Commissioner Rule 
 
         500-4.33.
 
         
 
              That the costs of this appeal are taxed equally to claimant 
 
         and defendant, Swift and its insurer.
 
         
 
              That defendants are to file an activity report upon  payment 
 
         of this award 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 18th day of February, 1987.
 
         
 
         
 
         
 
                                          ROBERT C. LANDESS
 
                                          INDUSTRIAL COMMISSIONER
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         632-640 Badgerow Bldg.
 
         Sioux City, Iowa 51101
 
         
 
         Mr. Thomas M. Plaza
 
         Attorney at Law
 
         200 Home Federal Bldg.
 
         P.O. Box 3086
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Matthew W. Williams
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
          
 
                  
 
                                                             
 
                                                1402.20-1803.10-2502-3202
 
                                                Filed February 18, 1987
 
                                                ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         RAYMOND E. PIROZEK,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         SWIFT INDEPENDENT PACKING,
 
                                                 File No. 753643
 
              Employer,
 
                                                  753642/724893
 
         
 
                                                    A P P E A L
 
         and
 
                                                 D E C I S I 0 N
 
         NATIONAL UNION FIRE INSURANCE,
 
         
 
             Insurance Carrier,
 
         and
 
         
 
         SECOND INJURY FUND
 
         
 
             Defendants.
 
         _________________________________________________________________
 
         
 
         1402.20 - 1803.10 -  2502  -  3202
 
         
 
              Claimant sustained an injury to his left wrist in January 
 
         1981 which required carpal tunnel release surgery.  In June or 
 
         July 1982 claimant began receiving treatment for a similar 
 
         condition in his right wrist and in October 1983 had a carpal 
 
         tunnel release surgery for his right wrist.  In January 1983 
 
         claimant injured his left knee and subsequently underwent surgery 
 
         in April 1983.
 
         
 
              Claimant established entitlement to permanent partial 
 
         disability benefits of 9.5 weeks for the left hand; 5.7 weeks for 
 
         the right hand; and 11 weeks for the left leg.  Claimant did not 
 
         establish entitlement to permanent disability benefits from the 
 
         Second Injury Fund.
 
         
 
              Claimant is entitled to reimbursement of the reasonable fee 
 
         for a medical examination performed prior to application.  
 
         Condition precedent of an evaluation made by an employer retained 
 
         physician was present.  The provision for reimbursement comes 
 
         into play when defendants' liability is established.
 
 
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER 
 
         
 
         
 
         KENNETH D. LIVINGSTON,
 
         
 
              Claimant,
 
         
 
         VS.                                          File No. 753649
 
         
 
         DEPARTMENT OF TRANSPORTATION,                 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
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by the 
 
         claimant, Kenneth D. Livingston, against his employer, the Iowa 
 
         Department of Transportation, and its insurance carrier, the 
 
         State of Iowa, to recover benefits under the Iowa Workers' 
 
         Compensation Act as the result of an injury sustained June 14, 
 
         1979.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner at Dubuque, Iowa, on October 5, 
 
         1987.  A first report of injury was filed February 10, 1984.  The 
 
         parties stipulated that claimant has received 100 weeks of 
 
         permanent partial disability benefits representing 20 percent 
 
         permanent partial disability.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant and of Ronald J. Terry as well as of claimant's exhibits 
 
         1, 2 and 3 and defendants' exhibits A through J.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation is  $170.15.  They 
 
         further stipulated that the provider of medical services would 
 
         testify that fees for such were reasonable and that defendants 
 
         are offering no evidence to the contrary; that the commencement 
 
         date for any additional permanent partial disability benefits 
 
         would be January 28, 1982; and, that claimant's June 14, 1979 
 
         work injury is the cause of 20% permanent physical impairment to 
 
         claimant's back.  It remains disputed as to whether that injury 
 
         is causally connected to other disability, including mental or 
 
         emotional impairment.  Defendants seek credit under section 
 
         85.38(2) for previous payments of sick and disability income in 
 
         the amount of $10,479.80 under a non-occupational group plan.  
 
         The parties have not stipulated that payment of the amounts 
 
         listed was made or that defendants are entitled to a credit for 
 
         such payment.
 
         
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page   2
 
         
 
         
 
              The issues remaining for resolution are:
 
         
 
              Whether a causal relationship exists between claimant's 
 
         injury and subsequent back condition and his claimed current 
 
         disability, including his mental and emotional condition;
 
         
 
              Whether claimant is entitled to benefits and the nature 
 
         and extent of any benefit entitlement, including the related 
 
         question of whether claimant is an odd-lot worker under the 
 
         Guyton doctrine; and,
 
         
 
              Whether claimant is entitled to payment of medical costs 
 
         related to his psychiatric condition as causally related to his 
 
         work injury and as authorized by defendants, or both.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Ronald J. Terry identified himself as a residence 
 
         maintenance engineer at the Dubuque, Iowa, Department of 
 
         Transportation site.  He reported that he has worked for the 
 
         department, or its predecessor, since 1959 in the Dubuque area 
 
         and has known claimant from then onward.  Claimant was a mechanic 
 
         at the Dubuque maintenance garage, performing work on heavy-duty 
 
         and medium-duty trucks and tractors, as well as on road graders 
 
         and heavy equipment.  Terry stated he had been very satisfied 
 
         with claimant's mechanical abilities and characterized claimant 
 
         as a dependable and conscientious individual who had good work 
 
         habits.  Terry knew that claimant had been treated for depression 
 
         for a number of years, but had not been aware of any particular 
 
         effects of such treatment nor of any effect treatment had had on 
 
         claimant's ability as a mechanic.  Terry agreed that claimant's 
 
         job required heavy manual labor at times and reported that, at 
 
         times, claimant had needed assistance with such as "would 
 
         anyone." Terry opined that, after his surgery, claimant would 
 
         have been ineligible for his mechanic position, but might have 
 
         been able to perform other work.  He agreed that he had seen 
 
         claimant only on limited occasions following his surgery and 
 
         that, while claimant appeared very concerned about his condition, 
 
         claimant did not pursue the matter.
 
         
 
              Claimant identified himself as 57 years old, having been 
 
         born on March 7, 1930.  He reported that he has completed the 
 
         tenth grade and served in the United States Army Signal Corps 
 
         from April, 1947 through September, 1948.  Claimant reported that 
 
         he learned how to type and run a teletype machine, but that
 
         he no longer can do so.  Claimant worked for the Iowa State 
 
         Highway Commission, now known at the Iowa Department of 
 
         Transportation, from October 8, 1951 through August 7, 1981, when 
 
         the department terminated his employment.  Claimant had never 
 
         returned to work for the department following an intervertebral 
 
         fusion surgery in January, 1981.  Claimant attended civil trade 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page   3
 
         
 
         
 
         schools while working for the department and its predecessor, the 
 
         last being a diesel engine course in September, 1980.  Claimant 
 
         had had prior work experience as a farm laborer, a bottle washer, 
 
         a service station mechanic and an automotive dealership mechanic 
 
         as well as a renovator of old ammunition.
 
         
 
              Claimant injured himself on June 14, 1979 when he "felt like 
 
         something tore in his back" while lifting a truck wheel.  
 
         Claimant reported that he returned to work the next day, but that 
 
         he ultimately saw Scott McCuskey, M.D.  He apparently then was 
 
         off work for a time, but returned with the same work duties, 
 
         albeit with a helper.  Claimant reported that he had less severe 
 
         pain after June, 1979, but that he never fully recuperated 
 
         following the June, 1979 injury.  Claimant described pain 
 
         following the January, 1981 fusion surgery as very severe and as 
 
         preventing him from continuing his mechanical work as he could 
 
         not bend, stoop, crawl or lift.
 
         
 
              Claimant testified that he has undergone treatment for a 
 
         depressive disorder since the 1950's.  Treatment included a 
 
         voluntary hospitalization in December, 1956.  Claimant reported 
 
         that he never lost time from work on account of his depression in 
 
         the 1970's and that it never prevented him from effectively doing 
 
         his work.  He reported that, in job reviews, mental condition was 
 
         never discussed as creating problems in his employment and that, 
 
         following the 1979 injury and prior to the 1981 surgery, no one 
 
         indicated that his depressive disorder was affecting his work.  
 
         Claimant stated his belief that his current medical condition 
 
         differs from his condition prior to his 1981 surgery in that he 
 
         no longer sleeps well, has lost interest in everything and has 
 
         feelings of hopelessness.  He reported that he cannot think or 
 
         concentrate, has a very poor memory and has no initiative.  
 
         Claimant described himself as "stunned" upon receiving his letter 
 
         of termination from the department after 30 years of service.  He 
 
         reported the department never discussed rehabilitation or 
 
         retraining with him.  Claimant stated that he attempted to teach 
 
         himself computer principles, but did not prevail in this endeavor 
 
         as he could not remember what he had studied from one day to the 
 
         next.  Claimant has not attempted employment since 1981.  He 
 
         reported that he no longer reads, even though he used to like 
 
         doing so.  He reported that he also no longer swims, skates, 
 
         bicycles or water skis as they require flexibility which he no 
 
         longer has.  Claimant reported that he has a hard time getting in 
 
         and out of cars and that he is very, very nervous in driving a 
 
         car.  He reported that he has unprecipitated crying spells and 
 
         suicidal ideation since his job termination.  He reported that 
 
         his memory problems have affected his driving in that he will 
 
         become disoriented and not remember where he intended to go while 
 
         driving.  He opined his memory problems have also affected his 
 
         ability as a mechanic as one needs an excellent memory to 
 
         disassemble and then reassemble equipment.
 
         
 
              On cross-examination, claimant admitted he had received 11 
 
         electroshock therapies during his 1956 hospitalization.  Claimant 
 
         could not recall having had suicidal thoughts at that time.  He 
 
         agreed that, prior to the 1979 injury, he had seen psychiatrists 
 
         possibly once a month or once every six weeks.  He could not 
 
         recall when he had initially taken Valium, but reported that he 
 
         has taken the drug since about 1970 to control anxiety.  Claimant 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page   4
 
         
 
         
 
         agreed he had also taken other medications for anxiety prior to 
 
         his 1979 injury.  Claimant has not been hospitalized for his 
 
         mental problems in the time since 1979.
 
         
 
              Claimant agreed that his wife, whom he married in 1961, is 
 
         schizophrenic and has undergone extensive treatment for that 
 
         condition.  He reported that Thomas C. Piekenbrock, M.D.,.a 
 
         psychiatrist, treats both claimant and his wife.  Claimant's wife 
 
         was characterized as totally dependent upon claimant with 
 
         claimant being her only friend and companion.  Claimant denied 
 
         that Dr. Piekenbrock had ever stated that her dependency had 
 
         increased claimant's level of depression.  Claimant agreed that 
 
         he had seen Dr. Piekenbrock in March, 1982 following an acute 
 
         flare-up in his wife's condition with inpatient treatment for 
 
         her.  Claimant's symptoms at that time were depression and 
 
         anxiety.  Claimant agreed that he had encountered stress while 
 
         employed for the department as a result of younger employees' job 
 
         attitudes, but reported that such did not affect his ability to 
 
         do his job.  Claimant agreed that he had had back problems prior 
 
         to 1979 for which he had seen doctors of chiropractic, but stated 
 
         that his back pain in the 1960's and 70's did not bother him to 
 
         the extent that he could not do assigned work.  He characterized 
 
         current pain as much more severe.
 
         
 
              Medical reports from Saint Joseph Sanitarium, for an 
 
         admission of December 4, 1956, report that claimant was referred 
 
         by John Moberly, M.D., because of severe depressed reaction in 
 
         connection with multiple sclerosis.  Present illness was 
 
         described, among other things, as severely depressed, withdrawn, 
 
         many self-accusatory ideas with suicidal thoughts, "love [sic] 
 
         wolf" type.  The patient felt he could not go on that way and had 
 
         no relief.  The reports confirm that 11 electroshock therapy 
 
         treatments were administered during the course of treatment until 
 
         discharge on December 29, 1956.  Medical notes of Dr. Moberly in 
 
         evidence contain periodic reports of depression with at least one 
 
         note relating to suicidal ideation and another note describing 
 
         claimant as an obsessive/compulsive personality entering a 
 
         neurotic/depressive reaction characteristic of such 
 
         personalities.  Notes of Dr. Moberly began on November 16, 1951 
 
         with depressive symptoms first noted on June 11, 1956.
 
         
 
              An affidavit of Jean A. Owens indicates that claimant 
 
         received services at the Psychiatry/Behavioral Medicine 
 
         Department of the Medical Associates Clinic, P.C., from August 
 
         23, 1978 through September 1, 1987 under the following regimen:  
 
         Three psychotherapeutic visits from August 23, 1978 through 
 
         September 5, 1978; seven psychotherapeutic visits from March 8, 
 
         1982 through December 28, 1982; nine psychotherapeutic visits 
 
         from February 28, 1983 through November 4, 1983; four 
 
         psychotherapeutic visits from January 20, 1984 through November 
 
         23, 1984 with two brief office calls on March 23, 1984 and May 
 
         18, 1984; five psychotherapeutic visits from January 14, 1985 
 
         through October 29, 1985; nine psychotherapeutic visits from 
 
         January 10, 1986 through December 23, 1986; and, six 
 
         psychotherapeutic visits from January 20, 1987 through September 
 
         1, 1987 with an additional half hour conference on April 20, 
 
         1987.
 
         
 
              A January 20, 1976 psychiatric note of John C. Ehrmann, 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page   5
 
         
 
         
 
         Ph.D., reports regarding claimant: "...This very rigid man is 
 
         just seething [with] resentment ... An August 23, 1978 note 
 
         reports: "Has had episodic depression for years, but has been 
 
         steady and increasing for a month."  An August 28, 1978 note 
 
         states:  "The same -- talks easily about his frustrations ... 
 
         lots of young people that get away with murder -- no sense of 
 
         responsibility and the boss doesn't care. (2) My wife is 
 
         schizophrenic -- no hope for her -- just gets worse. (3) My 
 
         sexual frustrations -she just isn't interested in sex."  The 
 
         above notes are apparently by Dr. Ehrmann.
 
         
 
              A March 8, 1982 note of Dr. Piekenbrock states that the 
 
         patient is complaining of depression and anxiety and was placed 
 
         on an antidepressant medication believed to be Doxepin.  Claimant 
 
         is reported as doing well in medical reviews of apparently March 
 
         30, 1982 and May 4, 1982.  A November 9, 1982 note reports that 
 
         claimant is not doing well and was extremely depressed, talking 
 
         about the psychological wear and tear he was experiencing because 
 
         of the excessive dependency that his wife has upon him and his 
 
         feelings of being responsible for her.  Attempts were made to try 
 
         to make claimant understand that the obligation he felt was 
 
         self-imposed and that his wife really had more capacities than 
 
         those for which he gave her credit.  A hand-written note 
 
         apparently of February, 1982, reports that claimant has had an 
 
         extremely difficult time following back surgery and disability 
 
         from his job as mechanic at the Department of Transportation.  
 
         His claim is reported as all tied up, he cannot work, he is 
 
         forced into inactivity and he is trying to cope.  Charlene, who 
 
         Dr. Piekenbrock subsequently identified as claimant's wife, is 
 
         reported to be psychotic.  It is reported that the couple must 
 
         move because of present finances.  Claimant is reported as not 
 
         sleeping, as having "waves of depression," as getting brittle and 
 
         as unable to eat or relax.  An April 2, 1983 note reports that 
 
         claimant is dejected because he has been denied continuation of 
 
         Social Security disability.  An August 8, 1983 note reports that 
 
         claimant has been reviewed and awarded Social Security 
 
         disability, but now is becoming paranoid and angry because checks 
 
         are not arriving on.the date he anticipated.  Claimant is feeling 
 
         the government is using this as a device to force him into some 
 
         act of violence towards others or towards himself.  On November 
 
         4, 1983, claimant is reported as in relatively stable condition, 
 
         although still discussing depression and fears as to what will 
 
         happen when his unemployment disability compensation expires 
 
         later in the year.  A January 20, 1984 note reports that claimant 
 
         continues to be depressed and concerned about the continuation of 
 
         his disability compensation which is due to expire that month.  
 
         Claimant is reported as having recruited the services of 
 
         (Congressman) Tauke and other politicians in an effort to fight 
 
         for his benefits and is considering securing the services of a 
 
         lawyer to take his case on a contingency basis.  It is reported 
 
         that, in spite of this, there is no basic change in his level of 
 
         depression.  On March 23, 1984 claimant is reported as still 
 
         chronically depressed, but does not have suicidal ideation at 
 
         this time.  On May 18, 1984, claimant is reported as basically 
 
         the same, continuing to be profoundly depressed with periods of 
 
         levels that border on suicidal ideation, but with no suicidal 
 
         gesture or formal plan.  Claimant is reported as reassuring Dr. 
 
         Piekenbrock that "he won't do it" as long as his wife is living 
 
         and because of his religious beliefs.  It is reported that anger 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page   6
 
         
 
         
 
         continues because of the frustration in trying to live on less 
 
         income than he had in the past which is slowly eroding his 
 
         savings.  He is reported as still battling Social Security for 
 
         reinstatement of his disability.  A note of July 20, 1984 reports 
 
         that claimant still feels depressed with occasional suicidal 
 
         thoughts, but is able to control them so far.  Social Security 
 
         benefits have been reinstated to $600 per month.  His wife is 
 
         reported as less paranoid, but still totally dependent upon 
 
         claimant.
 
         
 
              In a June 3, 1983 report, Dr. Piekenbrock reports that, in 
 
         1976, John Maginley, Ph.D., found claimant to be an atypical 
 
         major depressive reaction, acute and chronic, with some anxiety 
 
         symptoms in an obsessive compulsive personality trait disorder.  
 
         Inpatient treatment was recommended which claimant refused.  Dr. 
 
         Piekenbrock reported that claimant was seen in 1978 by Dr. 
 
         Ehrmann in approximately three or four visits in which Lithium 
 
         was tried, but not tolerated.  Claimant was reported as 
 
         discussing his depression and anxiety and as having many somatic 
 
         complaints.  Dr. Piekenbrock reported that claimant had married a 
 
         patient of the doctor of some 20-25 years duration.  He reported 
 
         that Mrs. Livingston has a diagnosis of schizophrenic reaction, 
 
         paranoid type, acute and chronic, and that she has had multiple 
 
         recurrences of her schizophrenic process throughout their 
 
         marriage with several series of ECT as well as constant 
 
         maintenance on rather large doses of psychotropic medications.  
 
         The doctor reported that, in the process of Mrs. Livingston's 
 
         illness, she has become totally dependent upon claimant and that 
 
         claimant does most of the domestic work about the house as well 
 
         as being his wife's total and sole companion.  Dr. Piekenbrock 
 
         reported that, following his back injury in 1979 with loss of 
 
         gainful employment, claimant was put into closer contact with his 
 
         schizophrenic wife and his depression increased since work was 
 
         his only outlet for escape from the relationship.  The doctor 
 
         reported that, in March, 1982, claimant presented for treatment 
 
         with chief complaints of depression and anxiety following one of 
 
         his wifeOs,acute flare-ups with inpatient treatment.  The doctor 
 
         reported that claimant's overall and generalized picture is one 
 
         of chronic depression, constantly present, varying only in 
 
         degrees from visit to visit.  Most noticeable objective symptoms 
 
         are psychomotor retardation with total lack of facial expression, 
 
         a fixed depressed effect.  Subjectively, claimant experiences, at 
 
         various times, "insomnia, anorexia, weight loss, obsessive 
 
         compulsive ruminating thought processes over imagined or 
 
         exaggerated future problems, loss of interest, absence of 
 
         socialization, and an underlying, almost constant, suicidal 
 
         ideation." The doctor reports that, on many occasions, claimant 
 
         has indicated that the only deterrent to committing suicide is 
 
         his feeling of obligation and responsibility to his wife who is 
 
         totally dependent upon him for her care.  The doctor reports 
 
         there is no evidence of organicity and, therefore, claimant's 
 
         orientation is clear, sensorium is clear with recent and remote 
 
         memory intact and other intellectual functions intact.  There 
 
         appears to be no evidence of cognitive disturbance and, 
 
         therefore, thought processes are intact with normal association 
 
         of ideas and stream of thought processing.  The doctor's 
 
         diagnoses were of atypical major dysthymic reaction, acute and 
 
         chronic, severe and personality trait disorder, obsessive 
 
         compulsive type.  The doctor opined that claimant's psychiatric 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page   7
 
         
 
         
 
         disorder was permanently and totally disabling and would prevent 
 
         claimant from performing any type of gainful employment.
 
         
 
              On November 8, 1983, Dr. Piekenbrock reported claimant's 
 
         current diagnosis as major recurrent depressive reaction with a 
 
         guarded prognosis.  The doctor opined claimant showed a severe 
 
         degree of impairment with inability to function under stress and 
 
         engage in interpersonal relationships.  He reported claimant has 
 
         significant loss of psychological, personal and social 
 
         adjustment.  The doctor characterized claimant as having 
 
         moderately severe physical limitations due to chronic backache 
 
         and generalized malaise, but in addition, has severe 
 
         psychological problems with a chronic depression which limited 
 
         his ability to form interpersonal relationships with other 
 
         people.  The doctor reported that, to the best of his knowledge 
 
         at that time, claimant was verbally communicating only with his 
 
         wife and with the doctor.  He reported that claimant had no 
 
         friends and, in social situations, became paranoid, withdrawn and 
 
         panicked.  The doctor opined that claimant's condition would 
 
         continue to deteriorate, but that this "may change if his wife 
 
         precedes him in death."  The doctor stated he would very much 
 
         like to see claimant receive vocational rehabilitation.  He could 
 
         make no recommendations as to appropriate vocational objectives 
 
         or restrictions, however.
 
         
 
              On April 30, 1987, Dr. Piekenbrock opined that he had seen 
 
         claimant on numerous occasions during the past five years, with 
 
         his depression intensifying greatly during that time.  The doctor 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page   8
 
         
 
         
 
         stated that claimant's back injury prevented him from continuing 
 
         his previous employment duties and that the loss of the 
 
         employment in turn compounded claimant's depression.  The doctor 
 
         reported that, presently, claimant's depression is as significant 
 
         a disabling factor concerning his ability to obtain and maintain 
 
         employment as the condition of his back.  The doctor opined that, 
 
         had claimant had the opportunity for retraining for other 
 
         employment soon after his termination, claimant might be capable 
 
         of employment today.  He reported that, as of April 30, 1987, he 
 
         did not believe that retraining or vocational rehabilitation 
 
         would be beneficial.  The doctor reported that claimant perceives 
 
         himself as being unable to perform any job.  Claimant becomes 
 
         paranoid and the doctor stated that, in even the simplest work 
 
         situation, claimant would perceive that his job performance was 
 
         too closely scrutinized, which would result in increased anxiety 
 
         and stress, making it impossible for him to perform his work.  
 
         The doctor concluded that claimant's preexisting depression was 
 
         significantly aggravated by his job loss and unemployability 
 
         following his injury in 1979 and surgery in 1981.  He 
 
         characterized claimant as now permanently and totally disabled 
 
         from gainful employment and stated that, had he not had the 
 
         injury "related to loss of employment, ... his depression would 
 
         not have progressed to the point where he would be disabled as he 
 
         is today."
 
         
 
              On April 21, 1981, Dr. McCuskey opined that claimant's 
 
         diagnosis was chronic osteoarthritis at L4-5 and L5-Sl with 
 
         treatment consisting of a fusion of L4-5 and L5-Sl to the sacrum 
 
         on January 15, 1981.  The doctor reported that, as of the date of 
 
         the letter, claimant continued to have soreness in his back, but 
 
         had a marked decrease in his leg pain.  The doctor reported that 
 
         claimant could return to a work environment that did not involve 
 
         heavy lifting, gripping or bending over.
 
         
 
              Dr. McCuskey saw claimant in his office on November 16, 1981 
 
         and reported that claimant continued to have soreness in the 
 
         sacral area of his back with aggravation in cold weather and by 
 
         standing and walking.  The doctor stated claimant reported he was 
 
         able to tolerate standing or walking for no longer than 50-60 
 
         minutes without rest, but did not appear to have trouble with 
 
         lying down or sitting.  He reported that claimant was unable to 
 
         forward bend or stoop completely and would, therefore, be unable 
 
         to pick up weights from those positions, but could pick up 
 
         approximately 25 pounds, no more, while standing at a bench.  
 
         Left lateral flexion was 15 degrees and right lateral flexion was 
 
         20 degrees, both above the level of claimant's fusion.  Lateral 
 
         rotation was approximately 30 degrees to the left and 25 degrees 
 
         to the right.  Forward flexion was 78 degrees and extension was 
 
         18 degrees.  Neurologic examination showed good heel and toe 
 
         walking strength with ankle and toe dorsiflexor strength intact. 
 
          Straight leg raising was complete and knee and ankle jerks were 
 
         brisk and symmetric with no sensory deficits in the lower 
 
         extremities.  X-rays demonstrated a solid fusion on both 
 
         posterolateral corners of L4-5 and L5-Sl.  Claimant was assigned 
 
         a permanent physical impairment of 20%.
 
         
 
              Patrick R. Sterrett, M.D, a neurologist, evaluated claimant 
 
         on March 1, 1983.  The doctor stated that claimant's past medical 
 
         history included complaints of chronic low back pain since 1960 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page   9
 
         
 
         
 
         which were treated conservatively for approximately 20 years 
 
         before the surgery.  Dr. Sterrett reported that he saw no 
 
         evidence of any change in the character of claimant's pain since 
 
         his January, 1981 surgery.  He agreed that claimant had 
 
         significant restriction of movement with hip flexion and 
 
         extension and lateral flexion with degree of movement appearing 
 
         "to be very significant and it definitely does occur above the 
 
         fusion at L4."
 
         
 
              Medical Associates Orthopedic Department notes of Dr. 
 
         Piasecki and Dr. Avila indicate that claimant experienced sharp 
 
         pain in his low back on August 20, 1967 after helping to tip an 
 
         800 pound drum.  It became severe the following day and "he could 
 
         hardly walk."  The pain was associated with aching going down the 
 
         left leg.  Claimant was reported on September 8, 1967 as having 
 
         improved a good deal, but still having a fair amount of pain in 
 
         his back and left leg.  Straight leg raising, both while lying 
 
         and sitting, was 90 degrees bilaterally. impression was of a 
 
         myofascial strain of the low back.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is the causal relationship issue.
 
         
 
              In a review-reopening proceeding in which the claimant is 
 
         seeking additional compensation after a previous award of 
 
         disability, he must show a change of condition since the previous 
 
         award which would entitle him to an additional award.  Stice v. 
 
         Consolidated Ind. Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940).  
 
         Claimant has the burden of showing by a preponderance of the 
 
         evidence that increased incapacity which entitles him to 
 
         additional compensation is a proximate result of the original 
 
         injury.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 457 
 
         (Iowa 1969).  Unless there is more than a mere scintilla of 
 
         evidence of increased incapacity of the employee, a mere 
 
         difference of opinion of experts as to the percentage of 
 
         disability arising from the original injury would not justify a 
 
         finding of change of condition.  Bousfield v. Sisters of Mercy, 
 
         249 Iowa 64, 86 N.W.2d 109 (1957).  Controlling authorities as to 
 
         factors bearing on whether a change of condition has occurred are 
 
         well summarized in Sanford v. Allied Maintenance Corp., IV Iowa 
 
         Industrial CommOr Report 297, 298 (1984).
 
         
 
              One basis for increasing workers' compensation is an 
 
         increase in industrial disability proximately caused by injury 
 
         subsequent to date of original award.  An increase in industrial 
 
         disability may occur without a change in physical condition and a 
 
         change in earning capacity subsequent to the original award which 
 
         was proximately caused by the original injury is a change of 
 
         condition for purposes of increased workers' compensation.  
 
         Blacksmith v.All American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 15, 1979 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 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  10
 
         
 
         
 
         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).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  It the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant 
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 
 
         (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation SS555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 58 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the result.  It need be only one cause of the 
 
         result; in need not be the only cause.  Blacksmith, 354.
 
         
 
              Professor Larson has stated at section 42.22(a) of his 
 
         treatise:
 
         
 
              Conversely, when there has been a physical accident or 
 
              trauma, and claimant's disability is increased or 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  11
 
         
 
         
 
              prolonged by the traumatic neurosis, conversion 
 
              hysteria, or hysterical paralysis, it is now uniformly 
 
              held that the full disability, including the effect of 
 
              the neurosis is compensable.  Dozens of cases, 
 
              involving almost every conceivable kind of neurotic, 
 
              psychotic, psychosomatic, depressive or hysterical 
 
              symptom, functional overlay, or personality disorder 
 
              have accepted this rule.
 
         
 
              The professor has also stated, at section 42.22(b):
 
         
 
              As in other connections, a preexisting weakness in the 
 
              form of a neurotic tendency does not lessen the 
 
              compensability of an injury which precipitates a 
 
              disabling neurosis.
 
         
 
              In the prehearing report, the parties reached the following 
 
         stipulation as regards causal connection to disability:
 
         
 
              3.  It is stipulated the 6-14-79 work injury is the 
 
              cause of the 20% permanent physical impairment injury 
 
              [sic] to Claimant's back; it is disputed that the 
 
              6-14-79 [sic] is causally connected to other 
 
              disability, including mental/emotional condition or 
 
              impairment.
 
         
 
              Likewise, defendants stated their position as regards the . 
 
         dispute in this matter as follows:
 
         
 
              Defendant contends that whatever mental problems 
 
              Claimant may now have are the result of factors 
 
              unconnected with his back injury.
 
         
 
              Defendant denies that there has been any change in 
 
              condition of the Claimant since the last determination 
 
              or payment of compensation which would entitle him to 
 
              further compensation.
 
         
 
              The parties presented little evidence tending to show that 
 
         claimant's disability, as related solely to his physical back 
 
         condition, has increased since the last award in this matter.  
 
         The evidence merely shows that claimant had had chronic low back 
 
         pain and two earlier work injuries prior to the 1979 injury and 
 
         the 1981 surgery.  He had been treated conservatively for 20 
 
         years prior to his surgery.  Surgery consisting of a fusion of 
 
         L4-5 and L5-Sl to sacrum followed a diagnosis of chronic 
 
         osteoarthritis.  Dr. Sterrett has opined that claimant has had no 
 
         change in the character of his pain since his 1981 surgery.  
 
         Claimant's work restrictions and physical limitations as imposed 
 
         by Dr. McCuskey were apparently in effect at the time of his job 
 
         termination in 1981.  However, even without a change in 
 
         claimant's physical condition, a change justifying 
 
         review-reopening may be found if the requisite causal 
 
         relationship between that change and the work injury is 
 
         established.  The pre-hearing report, the parties' briefs and the 
 
         testimony presented at hearing support a conclusion that the 
 
         parties' primary dispute is as to whether claimant's current 
 
         mental and emotional condition and any additional claimed 
 
         disability resulting therefrom can be causally related to the 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  12
 
         
 
         
 
         original work injury.  Hence, while we find that the record does 
 
         not establish any increase in claimant's back condition beyond 
 
         that as shown at the time of payment of the 20% permanent partial 
 
         impairment and 20% permanent partial disability, we may consider 
 
         the foregoing question.
 
         
 
              In that regard, both parties concede that claimant had prior 
 
         problems with depression and other related mental conditions and 
 
         disorders.  Both parties concede that claimant had been married 
 
         for a substantial period to another individual who also had a 
 
         mental disorder.  Claimant argues that claimant's back injury and 
 
         subsequent job termination substantially aggravated claimant's 
 
         mental disorder.  Defendants contend that claimant had had 
 
         depressive problems related to stress at work prior to his injury 
 
         and that the cause of any current aggravation of his mental 
 
         condition, if any such aggravation exists, is his ongoing 
 
         relationship with his spouse and not his work injury or his 
 
         subsequent termination.  While substantial medical evidence 
 
         establishes that claimant had long-term mental health problems 
 
         and impairments, the only evidence on the issue of whether those 
 
         problems are aggravated by the June 14, 1979 work injury are the 
 
         opinions of Dr. Piekenbrock, claimant's treating physician.  The 
 
         doctor's reports do reflect that the doctor felt claimant's 
 
         ongoing relationship with his wife, for whom he was characterized 
 
         as the only friend and companion, is a substantial factor in 
 
         claimant's disabling depression.  On the other hand, the doctor 
 
         early on indicated that vocational rehabilitation would be 
 
         advisable for claimant.  Defendants did not attempt to return 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  13
 
         
 
         
 
         claimant to any job in any capacity and did not offer claimant 
 
         vocational rehabilitation.  Furthermore, in his last report in 
 
         evidence, that of April 30, 1987, Dr. Piekenbrock opined that he 
 
         had seen claimant on numerous occasions during the past five 
 
         years and that claimant's depression had intensified greatly 
 
         during that time.  The doctor then stated that claimant's back 
 
         injury prevented claimant from continuing his previous employment 
 
         duties and that the loss of such employment, in turn, compounded 
 
         claimant's depression.  The doctor further opined that, had 
 
         claimant had the opportunity for retraining for other employment 
 
         soon after his termination, claimant might have been capable of 
 
         employment as of that date.  That opinion testimony appears to 
 
         support the following argument set forth in claimant's brief:
 
         
 
              Mr. Livingston is a 57 year old man with a tenth grade 
 
              education who worked for the State as a mechanic for 30 
 
              years.  When a third on-the-job back injury prevented 
 
              him from returning to work, he was abruptly terminated.  
 
              Years of faithful service were rewarded by a kick out 
 
              the door.  His preexisting depression became aggravated 
 
              to the point that he became paranoid.  He lost his 
 
              self-confidence, his lifelong interest in mechanical 
 
              work and his interest in life in general.  His memory 
 
              worsened.
 
         
 
              Defendant's [sic] counsel suggests that it was the 
 
              interaction between Mr. Livingston and Mrs. Livingston 
 
              that was causing his current problems rather than his 
 
              reaction to the injury and job loss.  Reference was 
 
              made to letters written by Dr. Piekenbrock on June 3, 
 
              1983, and November 8, 1983.  The doctor indicates, and 
 
              Mr. Livingston testified that Mrs. Livingston had had 
 
              numerous flareups over the entire 20 years of the 
 
              marriage and that, throughout the marriage, Mr. 
 
              Livingston had been his wife's only friend and 
 
              companion.  Throughout those numerous times, Mr. 
 
              Livingston functioned well as a mechanic.  Dr. 
 
              Piekenbrock does not indicate that Mr. Livingston's 
 
              living with his wife is the sole cause of the 
 
              aggravated depression.  In fact, in his November 8, 
 
              1983, letter, he indicates only the possibility of a 
 
              change in Mr. Livingston's condition if her presence is 
 
              removed.  He does not say that Mr. Livingston's 
 
              condition will improve.  On the other hand, his reports 
 
              indicate that the loss of job resulting from the injury 
 
              is a cause of the increased depression.  If the 
 
              emotional trauma caused by the loss of employment at 
 
              which he diligently worked for over thirty years, as 
 
              well as his living with his wife combined to cause the 
 
              increased mental problems, the concurrence of these 
 
              causes allows additional workman's [sic] compensation 
 
              in this case.
 
         
 
              Defendant elicited comments concerning the negative 
 
              effect that the young workers' attitudes toward their 
 
              jobs at the Department of Transportation had upon Mr. 
 
              Livingston.  Whether or not this bothered him, he still 
 
              was able to do his work in a qualitatively and 
 
              quantitatively acceptable manner.  Although he 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  14
 
         
 
         
 
              acknowledged complaining of chronic low back pain since 
 
              the 1960's as shown in Dr. Sterrett's letter 
 
              (Defendant's [sic] Exhibit E) and complained of tension 
 
              a work as shown in Defendant's [sic] Exhibit D, the 
 
              evidence was uncontroverted that he was able to perform 
 
              his work appropriately during these times despite those 
 
              physical and emotional feelings.
 
         
 
              Claimant has established the requisite causal connection 
 
         between his June 15, 1979 work injury and his current claimed 
 
         additional disability, that being a disabling depression.
 
         
 
              We now need to consider the nature and extent of claimant's 
 
         disability, which question includes the related question of 
 
         whether or not claimant is an odd-lot employee under the Guyton 
 
         doctrine.
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter 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 
 
         the factors is 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 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  15
 
         
 
         
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability. it 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              In Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), 
 
         the Iowa court formally adopted the "odd-lot doctrine. Under that 
 
         doctrine a worker becomes an odd-lot employee when an injury 
 
         makes the worker incapable of obtaining employment in any well 
 
         known branch of the labor market.  An odd-lot worker is thus 
 
         totally disabled if the only services the worker can perform are 
 
         "so limited in quality, dependability, or quantity that a 
 
         reasonably stable market for them does not exist.O
 
         
 
              The burden of persuasion on the issue of industrial 
 
         disability always remains with the worker.  However, when a 
 
         worker makes a prima facie case of total disability by producing 
 
         substantial evidence that the worker is not employable in the 
 
         competitive labor market, the burden to produce evidence of 
 
         suitable employment shifts to the employer.  If the employer 
 
         fails to produce such evidence and the trier of fact finds the 
 
         worker does fall in the odd-lot category, the worker is entitled 
 
         to a finding of total disability.  Id. Even under the odd-lot 
 
         doctrine, the trier of fact is free to determine weight and 
 
         credibility of evidence in determining whether the worker's 
 
         burden of persuasion has been carried, and only in an exceptional 
 
         case would evidence be sufficiently strong to compel a finding of 
 
         total disability as a matter of law.  Id. In Guyton, the court 
 
         also stated the following regarding determination of a worker's 
 
         industrial loss.
 
         
 
                 The question is more than the one posed by the 
 
              commissioner concerning what the evidence shows Guyton 
 
              "can or cannot do."  The question is the extent to 
 
              which the injury reduced Guyton's earning capacity.  
 
              This inquiry cannot be answered merely by exploring the 
 
              limitations on his ability to perform physical activity 
 
              associated with employment.  It requires consideration 
 
              of all the factors that bear on his actual 
 
              employability.  See New Orleans (Gulfwide) Stevadores 
 
              v. Turner, 661 F.2d 1031, 1042 (5th Cir.1981) (are 
 
              there jobs in the community that the worker can do for 
 
              which he could realistically compete?) Id.
 
         
 
                 For workmen's (sic) compensation purposes total 
 
              disability does not mean a state of absolute 
 
              helplessness, but means disablement of an employee to 
 
              earn wages in the same kind of work, or work of a 
 
              similar nature, that he was trained for, or accustomed 
 
              to perform, or any other kind of work which a person of 
 
              his (sic] mentality and attainments could do.  Franzen 
 
              v. Blakley, 155 Neb. 621, 51 N.W.3d 833 (1952).  Total 
 
              and permanent disability contemplates the inability of 
 
              the workman (sic) to perform any work for which he 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  16
 
         
 
         
 
              (sic) has the experience or capacity to perform.  Shaw 
 
              v. Gooch Feed Mill Corp., 210 Neb. 17, 312 N.W.2d 682 
 
              (1981).
 
         
 
              In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 
 
         (1935), the Court stated, at pages 591-594 of the Iowa reports:
 
         
 
              The principal and the most important question in the 
 
              case at bar is to determine the meaning of "disability" 
 
              as used in the Iowa Compensation Law ...
 
         
 
              ...
 
         
 
              What is "permanent total disability"?  Does this clause 
 
              refer to "functional disability" or to "industrial 
 
              disability"?
 
         
 
              For clearness we shall use the term "industrial 
 
              disability" as referring to disability from carrying on 
 
              a gainful occupation--inability to earn wages.  By 
 
              "functional disability" we shall refer to the 
 
              disability to perform one or more of the physical 
 
              movements which a normal human being can perform.
 
         
 
              ...
 
         
 
              It is obvious that OdisabilityO as here used cannot 
 
              refer to mere "functional disability", ....
 
         
 
              ... [T]he legislature intended the term "disability" to 
 
              mean "industrial disability" or loss of earning 
 
              capacity and not a mere "functional disability" to be 
 
              computed in terms of percentages of the total physical 
 
              and mental ability of a normal man.
 
         
 
              ...
 
         
 
              ...[T]he Compensation Law was passed for the purpose of 
 
              compensating the working man when injured.  The loss 
 
              which this claimant suffered due to the injury which he 
 
              received while in the employ of the company is the 
 
              inability to carry on the work he was doing prior to 
 
              the time of the injury, or any work which he could 
 
              perform.  This man at fifty-nine years of age, after 
 
              thirty years as a street car motorman, with little 
 
              education, cannot find or hold a position that would 
 
              not require some manual labor, and, of course, due to 
 
              the condition of his back, he cannot perform such work.  
 
              To say that he might become a stenographer or a lawyer 
 
              or a clerk or a bookkeeper is to suppose the 
 
              impossible, for a fifty-nine-year old man, with no 
 
              education, is not capable of securing or filling any 
 
              such position.  His disability may be only a 
 
              twenty-five or thirty per cent disability compared with 
 
              the one hundred per cent perfect man, but, from the 
 
              standpoint of his ability to go back to work to earn a 
 
              living for himself and his family, his disability is a 
 
              total disability.
 
         
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  17
 
         
 
         
 
              We believe that, while both parties have couched the 
 
         permanent total disability argument in terms of whether claimant 
 
         is an odd-lot worker under the Guyton doctrine, such is 
 
         irrelevant, for the evidence shows that claimant is permanently 
 
         and totally disabled under general principles of permanent 
 
         disablement as expressed in Diederich.  Dr. Piekenbrock has 
 
         reported that retraining or vocational rehabilitation would no 
 
         longer be beneficial for claimant.  He indicated that claimant 
 
         perceives himself as being unable to perform any job.  Claimant 
 
         becomes paranoid and the doctor opined that, in even the simplest 
 
         work situation, claimant would perceive that his work performance 
 
         was too closely scrutinized, which would result in increased 
 
         anxiety and stress, making it impossible for him to perform his 
 
         work.
 
         
 
              The doctor has opined that claimant is now permanently and 
 
         totally disabled from gainful employment.  He has stated that, 
 
         had claimant not had the injury, related to loss of employment, 
 
         his depression would not have progressed to the point where he is 
 
         as disabled as he is today.  Claimant is 54 years old and has a 
 
         tenth grade education.  He has had some minimal typing skills 
 
         acquired while serving in the Army some 40 years ago, but does 
 
         not still possess such skills.  His only education and training 
 
         of any significance prior to his injury was that related to his 
 
         30-year position with the Iowa Department of Transportation as a 
 
         mechanic.  Claimant testified that his short-term memory and 
 
         concentration are significantly impaired.  As a result, he has 
 
         difficulty with such minimal tasks as remaining on course while 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  18
 
         
 
         
 
         driving from his home to a desired location.  Claimant attempted 
 
         to study computers as a self-effort at retraining, but testified 
 
         that he was unable to retain passages he studied.  Claimant's 
 
         poor memory and concentration and his paranoia would preclude him 
 
         from the mental operations required in work as a mechanic, that 
 
         is, the only work he knows.  Likewise, such would preclude 
 
         vocational rehabilitation for any other employment within his 
 
         physical restrictions.  Such restrictions are an inability to 
 
         tolerate standing or walking for longer than 50-60 minutes 
 
         without rest; inability to forward bend or stoop completely; and, 
 
         inability to pick up more than 25 pounds while standing at a 
 
         bench.  Given the above, claimant has established that he is 
 
         permanently and totally disabled from employment during the 
 
         period of his disability.  It is not necessary to further 
 
         evaluate his condition and disability under the Guyton factors.  
 
         It is noted, however, that even under Guyton principles, claimant 
 
         would be a worker incapable of obtaining employment in any 
 
         well-known branch of the labor market.  Claimant is totally 
 
         disabled under Guyton principles in that the only services 
 
         claimant can perform are "so limited in quality, dependability, 
 
         or quantity that a reasonably stable market for them does not 
 
         exist."
 
         
 
              The parties state that a section 85.27 issue exists as to 
 
         payment of costs for treatment of claimant's depressive 
 
         condition.  No current medical costs were submitted into 
 
         evidence.  Defendants are, of course, required to pay costs of 
 
         treatment related to the aggravation of claimant's preexisting 
 
         depressive condition.  If any such costs are outstanding, the 
 
         parties are encouraged to work together to resolve the issue of 
 
         payment of such costs without further intervention of this 
 
         agency.
 
         
 
              Defendants seek credit under section 85.38(2) for previous 
 
         payments of sick and disability income in the amount of 
 
         $10,479.80 under a non-occupational group plan.  The parties have 
 
         not stipulated that payment of the amount was actually made or 
 
         that defendants are entitled to a credit for such payment.  The 
 
         parties did not present evidence on this issue.  The issue was 
 
         not listed as an issue on the pre-hearing assignment order as 
 
         well.  Hence, we are not able to decide on this record whether 
 
         defendants are entitled to the credit.  Section 85.38(2) provides 
 
         in relevant part:
 
         
 
              ...In the event the disabled employee shall receive any 
 
              benefits, including medical, surgical or hospital 
 
              benefits, under any group plan covering 
 
              non-occupational 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 non-occupational plan shall be 
 
              reimbursed in the amount so deducted.  This section 
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  19
 
         
 
         
 
              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.
 
         
 
              Again, if, under the section, defendants would be entitled 
 
         to the credit sought, the parties are encouraged to work together 
 
         to resolve this matter and provide for such reimbursement without 
 
         further intervention of this agency.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant is 57 years old.
 
         
 
              Claimant has a tenth grade education.
 
         
 
              Claimant's predominant work experience and only retained 
 
         work skills are as a motor vehicle and heavy equipment mechanic.
 
         
 
              Claimant had undergone episodic treatment for depression 
 
         from at least 1954 prior to his injury of June 15, 1979.
 
         
 
              Claimant had never been involuntarily admitted for treatment 
 
         of his depression.
 
         
 
              Claimant did have inpatient treatment for depression in 
 
         1956.
 
         
 
              Claimant voluntarily sought outpatient treatment for his 
 
         depression on an intermittent basis from 1954 onward.
 
         
 
              Claimant was, at one time, disturbed by the attitude of 
 
         younger workers while on the job.
 
         
 
              Claimant's depression did not impair his ability to work as 
 
         a mechanic.
 
         
 
              During job reviews, claimant's supervisors did not advise 
 
         him that his depressive condition adversely affected his work or 
 
         status as an employee.
 
         
 
              Claimant injured his back on June 15, 1979 while lifting a 
 
         tire.
 
         
 
              Claimant subsequently underwent a fusion at L4-L5 and L5-Sl 
 
         to the sacrum in January, 1981.
 
         
 
              Claimant had worked after his June 15, 1979 injury, albeit 
 
         with a helper, until his fusion surgery.
 
         
 
              Claimant did not return to work following his fusion 
 
         surgery.  Defendants terminated claimant's employment on August 
 
         7, 1981.
 
         
 
              Claimant was stunned upon receiving his letter of 
 
         termination from his employer after 30 years of service.
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  20
 
         
 
         
 
         
 
              The employer never discussed rehabilitation or retraining 
 
         with claimant.
 
         
 
              The employer did not discuss retaining claimant in other 
 
         employment better suited to his capabilities.
 
         
 
              Claimant's spouse is schizophrenic.
 
         
 
              Claimant has served as her only friend and companion since 
 
         their marriage approximately 20 years ago.
 
         
 
              Work permitted claimant an outlet from his association with 
 
         and responsibilities concerning his spouse.
 
         
 
              Claimant is now paranoid and angry.
 
         
 
              Claimant's level of depression has increased significantly 
 
         in the last five years.
 
         
 
              Claimant's present depression is as significant a disabling 
 
         factor concerning his ability to obtain and maintain employment 
 
         as is the condition of his back.
 
         
 
              Given claimant's current medical condition, retraining or 
 
         vocational rehabilitation would not be beneficial.
 
         
 
              Claimant now perceives himself as being unable to perform 
 
         any job.
 
         
 
              Even simplest work situations result in increased anxiety 
 
         and stress for claimant making it impossible for him to work as 
 
         claimant would perceive his job performance as being too closely 
 
         scrutinized.
 
         
 
              Claimant's preexisting depression was significantly 
 
         aggravated by his job loss and unemployability following his 
 
         injury in 1979 and surgery in 1981.
 
         
 
              Claimant can tolerate standing or walking for no longer than 
 
         50-60 minutes without a rest.
 
         
 
              Claimant cannot forward bend or stoop completely and is 
 
         unable to pick up weights from those positions.  Claimant can 
 
         pick up no more than 20 pounds while standing at a bench.
 
         
 
              Claimant has memory loss and loss of concentration skills to 
 
         greater degree now than prior to his work injury and subsequent 
 
         work termination.  He has difficulty maintaining an interest in 
 
         reading since his work injury.  Claimant has difficulty 
 
         remembering his destination while driving in a car.
 
         
 
              Claimant was unable to pursue self-study in computers as he 
 
         was unable to retain and recall from one day's reading to the 
 
         following day.
 
         
 
              Claimant would have trouble disassembling and reassembling 
 
         mechanical equipment on account of his memory and concentration 
 
         losses.
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  21
 
         
 
         
 
         
 
              Claimant has a permanent partial impairment of 20% of the 
 
         body as a whole.
 
         
 
              Claimant has been previously compensated for 20% permanent 
 
         partial disability on account of his June 15, 1979 work injury.
 
         
 
              Claimant is industrially disabled from any employment at the 
 
         present time.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established that a causal relationship exists 
 
         between his July 15, 1979 injury and his claimed mental and 
 
         emotional disability.
 
         
 
              Claimant is permanently and totally disabled on account of 
 
         his June 15, 1979 work injury and his subsequent aggravation of 
 
         his depressive condition.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant.permanent total disability benefits 
 
         during the period of his disability at the applicable rate of one 
 
         hundred seventy and 15/100 dollars ($170.15) per week.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30.
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file Claim Activity Reports as required by the 
 
         agency pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 19th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          HELEN JEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Stephen W. Scott
 
         Attorney at Law
 
         100 West 12th Street
 
         Dubuque, Iowa 52001
 

 
         
 
         
 
         
 
         LIVINGSTON V. DEPARTMENT OF TRANSPORTATION
 
         Page  22
 
         
 
         
 
         
 
         Mr. Mark Hunacek
 
         Assistant Attorney General
 
         Iowa Department of Transportation 
 
         General Counsel Division 
 
         800 Lincoln Way
 
         Ames, Iowa 50010
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1108.20, 1804, 4100
 
                                               Filed February 19, 1988
 
                                               HELEN JEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KENNETH D. LIVINGSTON,
 
         
 
              Claimant,
 
         
 
         VS.                                     File No. 753649
 
         
 
         DEPARTMENT OF TRANSPORTATION,             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
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1108.20, 1804, 4100
 
         
 
              Claimant established causal relationship between aggravation 
 
         of his previously existing depressive disorder.
 
         
 
              Claimant established permanent total disability under 
 
         Diederich principles such that Guyton was inapplicable.
 
         
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         DOUGLAS M. PYLE,
 
         
 
              Claimant,
 
                                                 File No. 753661
 
         VS.
 
                                                   A P P E A L
 
         CARSTENSEN FREIGHT LINES, INC.,
 
                                                 D E C I S I 0 N
 
              Employer, 
 
              Defendant.
 
         _________________________________________________________________
 
         _
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         claimant permanent total disability benefits during the period of 
 
         his disability.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 42; and 
 
         defendant's exhibits Cl through C23.  Both parties filed briefs 
 
         on appeal.
 
         
 
                                       ISSUES
 
         
 
              Defendant states the following issues on appeal:
 
         
 
                   1.  Whether Claimant proved by a preponderance of 
 
              evidence that the heart episode which occurred on 29 
 
              September 1983 arose out of and in the course of 
 
              employment;
 
         
 
                   2.  Whether the evidence proved a causal 
 
              relationship between the alleged injury and the 
 
              disabilities alleged;
 
         
 
                   3. Claimant's entitlement, if any, to weekly 
 
              disability benefits and to Section 85.27 benefits.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be fully reiterated 
 
         herein.
 
         
 
              Briefly stated, claimant suffered a heart attack while 
 
         driving a truck for defendant.  Medical testimony from James E. 
 
         Tatkon-Coker, M.D., a cardiologist, and Kenneth N. Anderson, 
 
         M.D., a family practice physician, indicated that claimant's 
 
         heart attack was the result of a prior atherosclerotic condition 
 
         of his coronary arteries.  Drs. Tatkon-Coker and Anderson also 
 
         state that claimant's excessive smoking and obesity increased his 
 
         risk of developing heart disease.
 
         
 
              On the day of the heart attack claimant states, he arrived 
 

 
         at work at his usual time, 8:30 a.m.; assisted in loading his 
 
         truck in the usual manner; and left for Des Moines at the usual 
 
         time, 10:30 a.m. However, claimant had an appointment to make a 
 
         delivery in Des Moines at 11:00 a.m. The trip to Des Moines, 
 
         according to claimant, usually took him three hours.  Claimant 
 
         denies that he was told by Jack Carstensen, manager of 
 
         defendant's Cedar Rapids terminal, to report to work early that 
 
         day in order to make the 11:00 a.m. delivery.
 
         
 
              During the trip to Des Moines claimant began to experience a 
 
         burning pain in his upper chest extending into the throat.  
 
         Claimant attributed the pain to heart burn and continued driving.  
 
         This pain subsided temporarily and then reoccurred upon arrival 
 
         in Des Moines.  The second occurrence of pain was more severe 
 
         than the first and never completely subsided.
 
         
 
              Claimant states that he continued to work with this pain 
 
         because of time constraints (downtown Des Moines deliveries had 
 
         to be completed by 4:00 p.m.; his truck had to be back in Cedar 
 
         Rapids by 8:00 p.m. for Chicago freight deliveries).  Claimant 
 
         states that he regularly had difficulty complying with his 
 
         delivery appointments and that he felt compelled to drive in 
 
         excess of the speed limit to meet his schedule.  Carstensen 
 
         states that claimant's performance was occasionally 
 
         unsatisfactory and that he had occasionally reminded claimant of 
 
         his delivery schedule.  Claimant states that he was told by 
 
         Carstensen that he would be fired if his performance did not 
 
         improve.  Claimant also states that he received a warning letter 
 
         from Carstensen because he had received three speeding tickets in 
 
         the eleven month period preceding the heart attack.  The speeding 
 
         tickets concerned claimant because he would lose his job if he 
 
         lost his license.
 
         
 
              Claimant states that he did not complain of pain to anyone 
 
         at his delivery sites because he did not believe that would be 
 
         good for customer relations.  Claimant admits that defendant has 
 
         a toll free number that he can call when he had problems but that 
 
         he did not report his problems to defendant.
 
         
 
              Claimant estimates that he had to manually unload 
 
         approximately 14,000 pounds of freight using hand carts while he 
 
         was in Des Moines.  Claimant's exhibit 39 contains copies of the 
 
         delivery tickets for the deliveries claimant made on the day of 
 
         his heart attack.  Each delivery ticket specifies the weight of 
 
         the materials delivered.  The total weight of those deliveries 
 
         shown in claimant's exhibit 39 is in excess of 14,000 pounds.
 
         
 
              After claimant's last stop where he also picked up freight, 
 
         he began to experience severe problems.  Claimant stopped his 
 
         truck three times to rest between Des Moines and Newton.  Finally 
 
         he saw a hospital sign outside of Newton and decided to seek 
 
         assistance.  Claimant was hospitalized in Newton for fourteen 
 
         days.  Claimant's condition was diagnosed as mild congestive 
 
         heart failure with acute myocardial infarction.  Claimant has 
 
         since been rehospitalized in Cedar Rapids several times for 
 
         recurrence of angina pain and on one occasion for a stroke for 
 
         which he does not seek compensation.
 
         
 
              Dr. Tatkon-Coker opines that claimant's heart attack and 
 
         damage to the heart itself probably could have been avoided had 
 
         claimant sought treatment in Des Moines for his pain.  Dr. 
 
         Tatkon-Coker further opines that if claimant was experiencing 
 
         discomfort from lack of blood flow through the heart muscle, 
 
         continuing to work would probably lead to myocardial infarction.  
 

 
         
 
         
 
         
 
         PYLE V. CARSTENSEN FREIGHT LINES, INC.
 
         Page   3
 
         
 
         
 
         Dr. Tatkon-Coker released claimant for work on June 4, 1984 with 
 
         restrictions that he not lift over twenty pounds continuously or 
 
         fifty pounds occasionally and no work which produces angina 
 
         pain.
 
         
 
              Claimant has not been allowed to return to work by defendant 
 
         nor have they offered him any light duty work.  Claimant had 
 
         attempted to retrain himself at a local community college but 
 
         dropped out because the stress of the program produced angina 
 
         pain.
 
         
 
              Claimant is 47 years old with an eighth grade education.  
 
         However, he recently obtained a GED.  His work experience 
 
         involves driving trucks over the last 20 years.  Claimant also 
 
         spent five years in prison for larceny approximately 25 years 
 
         ago.
 
         
 
                                 APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                   ANALYSIS
 
         
 
              Defendant argues first that claimant's heart-attack did not 
 
         arise out of his employment.  Medical testimony indicates that 
 
         claimant's heart attack was the result of atherosclerosis and it 
 
         is probable that damage to claimant's heart and even his heart 
 
         attack could have been prevented if claimant had sought treatment 
 
         in Des Moines.  Claimant's testimony reveals that he felt 
 
         compelled to continue working in spite of his pain because of his 
 
         time constraints.  The record discloses that claimant has had 
 
         difficulties meeting his delivery schedule.  On the day of his 
 
         heart attack claimant was late in making his first delivery and 
 
         had recently been warned by defendant about receiving any more 
 
         speeding tickets.  Under these conditions claimant's assertion 
 
         that he felt compelled to continue working with pain is 
 
         reasonable.  Claimant continued to exert himself after the onset 
 
         of pain both in unloading his truck and in driving it.  See 
 
         Varied Interprises, Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).  
 
         Either of these exertions are greater than those of nonemployment 
 
         life.  Therefore, the deputy was correct in finding that claimant 
 
         suffered an injury which arose out of and in the course of his 
 
         employment.
 
         
 
              Defendant would appear to argue that claimant is not 
 
         entitled to compensation because of being negligent in not 
 
         ceasing work upon the first indication of pain.  Negligence is 
 
         not a consideration in a workers' compensation claim.
 
         
 
              Defendant argues that there is no causal connection between 
 
         claimant's heart attack and the disability he now suffers.  
 
         Claimant suffered no functional impairment due to atherosclerosis 
 
         prior to his heart attack.  He was able to perform his job 
 
         without any significant physical difficulty.  The medical 
 
         evidence causally connects claimant's disability to the heart 
 
         attack he suffered on September 29, 1983.
 
         
 
              Defendant argues lastly that claimant is not entitled to 
 

 
         
 
         
 
         
 
         PYLE V. CARSTENSEN FREIGHT LINES, INC.
 
         Page   4
 
         
 
         
 
         permanent total disability benefits.  The deputy found that 
 
         claimant had made prima facie showing that he is an "odd-lot" 
 
         employee.  As a part of the prima facie showing for the odd-lot 
 
         doctrine claimant must show a reasonable effort to secure 
 
         employment in the area of his residence.  Guyton v. Irving Jensen 
 
         Co., 373 N.W.2d 101 (Iowa 1985).  See also Emshoff v. Petroleum 
 
         Transportation Services, Appeal Decision, March 31, 1987.
 
         
 
              Claimant is 47 years old with a GED and work experience 
 
         consisting of mechanic work and truck driving.  Claimant has now 
 
         been placed on physical restrictions which prohibit return to his 
 
         former employment.  It is likely that before claimant will be 
 
         able to find other suitable employment he will need retraining.  
 
         Claimant has attempted retraining by enrolling in drafting and 
 
         business courses at a community college but was unable to 
 
         complete those courses because they were stressful and produced 
 
         severe angina pain.  Claimant is restricted from work which 
 
         causes angina.  Under these circumstances claimant's efforts at 
 
         retraining are viewed as a reasonable effort to secure employment 
 
         which was unsuccessful because of the disability claimant now 
 
         suffers as a result of his work injury.  Therefore, claimant has 
 
         made a prima facie showing that he is an odd-lot employee.  
 
         Defendants have made no effort to show that work is regularly 
 
         available to claimant nor have they offered light work to 
 
         claimant.
 
         
 
              Claimant is found to be permanently totally disabled as a 
 
         result of the September 29, 1983 injury he sustained.  Defendant 
 
         presented no rationale or argument for error on the part of the 
 
         deputy in his use of the odd-lot doctrine in determining the 
 
         extent of claimant's disability.
 
         
 
              The findings of fact, conclusions of law and order of the 
 
         deputy are adopted.
 
                 
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant is a credible witness.
 
         
 
              2.  Claimant was in the employ of defendant on September 29, 
 
         1983.
 
         
 
              3.  Claimant's job on September 29, 1983 consisted of 
 
         over-the-road truck driving with the responsibilities for 
 
         delivery and handling of freight involving strenuous work and 
 
         heavy lifting in all weather conditions.
 
         
 
              4.  On September 29, 1983, while performing his work for 
 
         defendant, claimant suffered mild congestive heart failure and a 
 
         myocardial infarction.
 
         
 
              5.  On September 29, 1983, after the first onset of chest 
 
         pains, claimant continued to work driving his truck and unloading 
 
         cargo, which involved strenuous labor and heavy lifting.
 
         
 
              6  Claimant's continuation of work after the onset of pain 
 
         on September 29, 1983 was due to claimant's desire to perform his 
 
         work as directed by his employer and such actions worsened 
 
         claimant's heart condition and caused additional heart damage.
 

 
         
 
         
 
         
 
         PYLE V. CARSTENSEN FREIGHT LINES, INC.
 
         Page   5
 
         
 
         
 
         
 
              7.  The work claimant performed on September 29, 1983 during 
 
         his deliveries constitutes a greater physical exertion than a 
 
         person would perform in nonemployment life and this work 
 
         aggravated or worsened claimant's heart condition leading to a 
 
         heart attack.
 
         
 
              8.  Claimant's employment on September 29, 1983 was a 
 
         substantial factor in causing damage to claimant's heart on 
 
         September 29, 1983.
 
         
 
              9.  Prior to the work injury herein, claimant had a prior 
 
         existing atherosclerotic condition of his coronary arteries but 
 
         had no functional disability.
 
         
 
              10.  As a result of his work injury, claimant is permanently 
 
         physically impaired and can no longer regularly lift more than 50 
 
         pounds occasionally or 20 pounds repetitively and he can no 
 
         longer work in extremes of temperature.
 
         
 
              11.  Prior to the work injury claimant was able to perform  
 
         strenuous work and heavy lifting regardless of the weather 
 
         conditions.
 
         
 
              12.  As a result of the work injury, claimant is unable to 
 
         return to his normal work activity or any other position which 
 
         requires strenuous work and heavy lifting in all weather 
 
         conditions.
 
         
 
              13.  Claimant's work history consists only of employment he 
 
         can no longer perform.
 
         
 
              14.  Claimant has suffered a significant loss in actual 
 
         earnings due to his work injury.
 
         
 
              15.  Claimant is motivated to find suitable alternative 
 
         employment.
 
         
 
              16.  Claimant is 47 years of age, has a GED certificate, and 
 
         exhibited average intelligence at the hearing.
 
         
 
              17.  Claimant's formal education is limited to the eighth 
 
         grade.
 
         
 
              18.  Claimant has low potential for successful vocational 
 
         rehabilitation.
 
         
 
              19.  Defendant has made no accommodation for claimant's work 
 
         injury nor has defendant assisted him in securing alternative 
 
         employment.
 
         
 
              20.  Claimant has suffered a total loss of his earning 
 
         capacity as a result of the work injury on September 29, 1983.
 
         
 
              21.  Pursuant to the parties' stipulation, claimant's rate 
 
         of compensation is $486.70 per week.
 
         
 
              22.  Claimant has incurred the medical expenses listed in 
 
         claimant's exhibits in this case for the treatment of his heart 
 

 
         
 
         
 
         
 
         PYLE V. CARSTENSEN FREIGHT LINES, INC.
 
         Page   6
 
         
 
         
 
         condition as the result of his work injury on September 29, 1983 
 
         which are specifically set forth in the order portion of this 
 
         decision.
 
         
 
              23.  Pursuant to the parties' stipulation, the charges for 
 
         the medical services claimant received for his heart condition 
 
         since September 29, 1983 and the services themselves are fair and 
 
         reasonable.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that on September 29, 1983 he suffered an injury which arose out 
 
         of and in the course of employment.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that the work injury of September 29, 1983 is a cause of 
 
         permanent disability.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         that he has incurred a permanent total industrial disability as a 
 
         result of the September 29, 1983 injury.
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to medical benefits in the amount of $36,505.40 as 
 
         ordered below.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant shall pay claimant permanent total disability 
 
         benefits during the period of his disability at the rate of four 
 
         hundred eighty-six and 70/100 ($486.70) per week from September 
 
         30, 1983.
 
         
 
              That defendant shall pay claimant the following medical 
 
         expenses:
 
         
 
              Skiff Memorial Hospital             $  4,161.45
 
              Newton Clinic                          5,211.19
 
              St. Lukes Hospital                    24,586.34
 
              Prescription drugs                       326.19
 
              Medical Associates                     1,836.00
 
              Cardiologists, P.C.                       60.00
 
              Wheelan Laboratory                         7.50
 
              Kenneth Anderson, M.D.                   316.73
 
         
 
              That defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              That defendant shall receive credit for previous payments of 
 
         benefits under a nonoccupational group insurance plan, if 
 
         applicable and appropriate under Iowa Code section 85.38(2).
 
         
 
              That defendant shall pay interest on the benefits awarded 
 

 
         
 
         
 
         
 
         PYLE V. CARSTENSEN FREIGHT LINES, INC.
 
         Page   7
 
         
 
         
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendant shall pay all costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33 and specifically 
 
         the following costs:
 
         
 
              A.  The sum of one hundred fifty dollars ($150) each, as a 
 
              witness fee for the deposition testimony of Dr. Anderson and 
 
              Dr. Tatkon-Coker.
 
         
 
              B.  The sum of three hundred fifty-eight and 50/100 dollars 
 
              ($358.50) for court reporter fees in taking the two doctors' 
 
              depositions.
 
         
 
              That defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
                                        
 
         
 
                  Signed and filed this 24th day of July, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                           DAVID E. LINQUIST
 
                                           ACTING INDUSTRIAL COMMISSIONER
 
         
 

 
         
 
         
 
         
 
         PYLE V. CARSTENSEN FREIGHT LINES, INC.
 
         Page   8
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Ronald W. Wendt
 
         Attorney at Law
 
         200 First Street S.W.
 
         Cedar Rapids, Iowa 52401-5798
 
         
 
         Mr. Raymond R. Stefani
 
         Attorney at Law
 
         807 American Building
 
         Cedar Rapids, Iowa 52401
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.1-1402.20-1402.30
 
                                            1402.40-1804-2202-4100
 
                                            Filed July 24, 1987
 
                                            DAVID E. LINQUIST
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         DOUGLAS M. PYLE,
 
         
 
              Claimant,
 
                                                 File No. 753661
 
         VS.
 
                                                    A P P E A L
 
         CARSTENSEN FREIGHT
 
         LINES, INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Defendant.
 
         _________________________________________________________________
 
         
 
         1108.1 - 1402.20 - 1402.30 - 1402.40 - 1804 - 2202
 
         
 
              Claimant sustained a heart attack while driving a truck for 
 
         defendant.  Preexisting atherosclerosis.  He felt compelled to 
 
         continue working because of time constraints and prior warnings 
 
         by his employer about late deliveries and speeding tickets.  Such 
 
         action was found to be reasonable.  Claimant continued to exert 
 
         himself after the onset of pain in unloading his truck and in 
 
         driving it.  See Varied Enterprises, Inc. v. Sumner, 353 N.W.2d 
 
         407 (Iowa 1984).  Either of these exertions are greater than 
 
         those of nonemployment life.  Therefore, injury arose out of and 
 
         in the course of employment.
 
         
 
         4100
 
         
 
              Claimant made a prima facie showing that he is an odd-lot 
 
         employee.  Although he had not actually sought employment in the 
 
         area of his residence, he did attempt retraining by taking 
 
         drafting and business courses at a community college.  He did not 
 
         complete those courses because they were stressful and produced 
 
         angina pain.  With his physical restrictions limited work 
 
         experience and education, it is unlikely claimant would be able 
 
         to obtain employment without retraining.  Under these 
 
         circumstances claimant's efforts at retraining were viewed as a 
 
         reasonable effort to secure employment which was unsuccessful 
 
         because of the disability claimant now suffers as a result of his 
 
         work injury.  Affirmed.
 
         
 
 
 
 
 
 
 
                                                
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAM HIBBS,                    :
 
                                          :
 
                 Claimant,                :      File No. 753666
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :      
 
            EATON CORPORATION,            :      D E C I S I O N
 
                                          :        
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Claimant appeals from an arbitration decision awarding 
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on December 6, 1983.  Defendant 
 
            cross-appeals. 
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration proceeding along with claimant's exhibits 1, 2A, 
 
            2B, 3A, 3B, 4, 5, 6, 8, 9, 10 and 10A.  The portion of 
 
            exhibit 9 which was received into evidence is pages 1 
 
            through 32, 35 through 42 and 119 through 123.  The balance 
 
            of exhibit 9 is in the record as an offer of proof only.  
 
            Claimant's exhibit 12 is in the record as an offer of proof 
 
            only.  The record also contains defendant's exhibits A 
 
            through Z, AA, BB, CC, DD, EE, FF, GG and HH.  Both parties 
 
            filed briefs on appeal.  Claimant filed a reply brief. 
 
            
 
                                      ISSUES
 
            
 
                 Claimant states the following issues on appeal: 
 
            
 
                 I. The deputy erred in his assessment of the 
 
                 claiment's [sic] credibility.
 
            
 
                 II. The deputy erred in failing to award 
 
                 industrial disability.
 
            
 
                 Defendant states the following issues on cross-appeal:
 
            
 
                 A. Whether the Deputy Industrial Commissioner 
 
                 erred in failing to bar claimant from receiving 
 
                 compensation benefits because of false 
 
                 representations made on her medical history 
 
                 questionnaire.
 
            
 
                 B. Whether the Deputy Industrial Commissioner 
 
                 erred in ordering the employer to pay medical 
 
                 expenses that were not admitted into evidence. 
 
            
 
                 C. Whether the Deputy Industrial Commissioner 
 
                 erred in failing to at least order that claimant 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 pay her own costs. 
 
            
 
                              REVIEW OF THE EVIDENCE
 
            
 
                 The arbitration decision adequately and accurately 
 
            reflects the pertinent evidence and it will not be set forth 
 
            herein. 
 
            
 
                                  APPLICABLE LAW
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and the evidence.  In addition, 
 
            the following authorities are noted:
 
            
 
                 An issue that could have been raised at the time of the 
 
            hearing cannot be raised for the first time on appeal.  
 
            Marcks v. Richman Gordman, (Appeal Decision, June 29, 
 
            1988); In re Jack H. Kohlmeyer, (Appeal Decision, February 
 
            22, 1990).
 
            
 
                 Division of Industrial Services Rule 343-4.17 states, 
 
            in part:
 
            
 
                    Each party to a contested case shall serve all 
 
                 medical records and reports concerning the injured 
 
                 worker in the possession of the party upon each 
 
                 opposing party not later than twenty days 
 
                 following filing of an answer, or if not then in 
 
                 possession of a party, within ten days of receipt.
 
            
 
                                     ANALYSIS
 
            The analysis of the evidence in conjunction with the law is 
 
            adopted with the following exception.  The deputy's decision 
 
            contained this statement:
 
            
 
                 It is expected that any injury, even to a 
 
                 scheduled member, carries with it some emotional 
 
                 distress, but that is considered in the scheduled 
 
                 member system adopted by the legislature, at least 
 
                 to the extent that the condition does not rise to 
 
                 the severity of producing actual disability from 
 
                 gainful employment.
 
                 
 
            This is an incorrect statement of the law.  Scheduled 
 
            injuries are presumed to contemplate any industrial 
 
            disability resulting from the injury, and any psychological 
 
            effects of the injury.  Cannon v. Keokuk Steel Casting, 
 
            (Appeal Decision, January 27, 1988).  The degree of 
 
            disability is not relevant in a scheduled injury, as the 
 
            injury is compensated on the basis of the physical 
 
            impairment.
 
            
 
                 In addition, it is noted that claimant attempts to 
 
            raise the issue of Iowa Code section 86.13 penalty for the 
 
            first time on appeal.  Since this issue was not listed on 
 
            the hearing assignment order as an issue at the arbitration 
 
            hearing, it cannot be considered on appeal.
 
            
 
                 Defendant seeks to have costs assigned to claimant on 
 
            appeal.  The assessment of costs is within the discretion of 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            the agency.  The defendant shall pay the costs of this 
 
            action, including the cost of the transcript on appeal.  
 
            
 
                 It is also noted that although claimant may have 
 
            exhibited discomfort while testifying.  Such discomfort may 
 
            have been attributable to her medical condition rather than 
 
            her truthfulness, or to the natural tendency toward 
 
            apprehension of any witness during cross-examination.  The 
 
            credibility of claimant's testimony is not affected by her 
 
            display of discomfort.  
 
            
 
                 On cross-appeal, the defendant disputes the deputy's 
 
            determination of liability for several of claimant's medical 
 
            bills.  The defendant points out that the deputy, at the 
 
            hearing, excluded from the record many bills contained in 
 
            exhibit 9 as being untimely served.  The deputy also limited 
 
            argument at the conclusion of the hearing to only those 
 
            medical bills in exhibit 9 that were admitted.  The excluded 
 
            portion of exhibit 9 was offered by claimant as an offer of 
 
            proof only.  
 
            
 
                 Defendant objects to that portion of the arbitration 
 
            decision that orders defendant to pay medical bills 
 
            contained in the excluded portion of exhibit 9.  Defendant 
 
            has indicated a willingness to accept responsibility for 
 
            some of these bills, but continues to object to others. 
 
            
 
                 Defendant will be ordered to pay the bill from St. 
 
            Joseph Mercy Hospital, except for that portion that relates 
 
            to treatment of an irritable bowel syndrome.  Defendant will 
 
            not be ordered to pay the bill from Sickroom Service to the 
 
            extent said bill duplicates the bill from Corner Drug Store 
 
            Company.  Defendant will be ordered to pay the bill from 
 
            Surgical Associates of North Iowa to the extent said bill 
 
            represents medical services provided to claimant, but 
 
            defendant is not required to pay any portion of that bill 
 
            relating to services to claimant's husband, Wayne Hibbs.  
 
            
 
                 The bills from McFarland Clinic, P.C.; Des Moines 
 
            Orthopedic Surgeons; Radiologist of Mason City; and Belmond 
 
            Community Hospital, are excluded from the record as not 
 
            being served on defendant in a timely fashion, and defendant 
 
            will not be ordered to pay said bills.  
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 1.  The injury claimant sustained on December 6, 1983 
 
            was limited to her right knee.
 
            
 
                 2.  Subsequent to December 6, 1983, claimant 
 
            experienced pain and discomfort in various parts of her body 
 
            and emotional distress.
 
            
 
                 3.  Any disability that resulted from any physical or 
 
            psychological pain, discomfort or distress that may have 
 
            resulted from the December 6, 1983 was temporary in nature 
 
            and produced no permanent impairment or permanent 
 
            disability, other than the two and one-half percent 
 
            permanent impairment of claimant's right leg as determined 
 
            by Wayne E. Janda, M.D.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 4.  The final assessments made by Dr. Janda, Donald 
 
            Burrows, M.D., and Michael Taylor, M.D., are correct.
 
            
 
                 5.  Following the injury on December 6, 1983, claimant 
 
            was medically incapable of performing work in employment 
 
            substantially similar to that she performed at the time of 
 
            injury until August 22, 1985 when Dr. Janda determined that 
 
            she had reached the point it was medically indicated that 
 
            further significant improvement from the injury was not 
 
            anticipated and an impairment rating was assigned.
 
            
 
                 6.  Expenses incurred prior to August 22, 1985 for 
 
            claimant's orthopaedic problems are reasonable treatment for 
 
            the injury.
 
            
 
                 7.  Treatment for the alleged pulmonary embolism 
 
            condition that was provided for prior to claimant's release 
 
            from Iowa Methodist Medical Center on June 13, 1985 
 
            constitutes reasonable treatment for the injury.
 
            
 
                 8.  The following medical expenses were incurred in 
 
            obtaining reasonable treatment for the injury of December 6, 
 
            1983:
 
            
 
                 Iowa Methodist Medical Center           $    
 
                 278.02
 
            Independent Medical Surgical Group           
 
            529.00
 
            Radiology Professional Corporation           
 
            182.20
 
            Surgical Associates of North Iowa            
 
            309.00
 
            Steel Memorial Clinic                        
 
            320.00
 
            Corner Drug Store Company                    
 
            569.29
 
            Redder Drug                                  
 
            117.90
 
            St. Joseph Mercy Hospital                 
 
            10,792.44
 
            Sickroom Service                              
 
            69.95
 
            ITS Home Care                                
 
            118.80
 
            Miller Medical Service                        
 
            65.00
 
            
 
                 9.  Claimant has been fully paid for all transportation 
 
            expenses.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant's healing period, under the provisions of Iowa 
 
            Code section 85.34(1), commenced on December 6, 1983 and 
 
            runs through August 22, 1985, a period of 89.143 weeks.
 
            
 
                 Claimant is entitled to receive 5.5 weeks of 
 
            compensation for a two and one-half percent permanent 
 
            partial disability of her right leg payable commencing 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            August 23, 1985.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered: 
 
            
 
                 That defendant pay claimant eighty-nine point one four 
 
            three (89.143) weeks of compensation for healing period 
 
            commencing December 6, 1983 at the stipulated rate of two 
 
            hundred forty-nine and 78/100 dollars ($249.78) per week.
 
            
 
                 That defendant pay claimant five point five (5.5) weeks 
 
            of compensation for permanent partial disability at the 
 
            stipulated rate of two hundred forty-nine and 78/100 dollars 
 
            ($249.78) per week commencing August 23, 1985.
 
            
 
                 That the defendant is entitled to credit for all 
 
            amounts previously paid and shall pay any past due accrued 
 
            amounts in a lump sum together with interest pursuant to 
 
            Iowa Code section 85.30.
 
            
 
                 That defendant pay the following medical expenses:
 
            
 
                 Iowa Methodist Medical Center           $    
 
                 278.02
 
            Independent Medical Surgical Group           
 
            529.00
 
            Radiology Professional Corporation           
 
            182.20
 
            Surgical Associates of North Iowa            
 
            309.00
 
            Steel Memorial Clinic                        
 
            320.00
 
            Corner Drug Store Company                    
 
            569.29
 
            Redder Drug                                  
 
            117.90
 
            St. Joseph Mercy Hospital                 
 
            10,792.44
 
            Sickroom Service                              
 
            69.95
 
            ITS Home Care                                
 
            118.80
 
            Miller Medical Service                        
 
            65.00
 
            
 
                 That defendant is ordered to pay claimant's medical 
 
            bills incurred at St. Joseph Mercy Hospital but not that 
 
            portion of the bill which relates to treatment of claimant's 
 
            bowels; claimant's bill from Sickroom Service only to the 
 
            extent said bill is not duplicative of the bill from Corner 
 
            Drug Store Company; and claimant's bill from Surgical 
 
            Associates of North Iowa, but only to the extent said bill 
 
            represents services rendered to claimant.
 
            
 
                 That the defendant shall receive credit for all amounts 
 
            previously paid.  Nothing herein requires payments in excess 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            of the actual charges.
 
            
 
                 That the defendant pay the costs of this action 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
                 Signed and filed this ____ day of March, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harry W. Dahl
 
            Attorney at Law
 
            974 73rd St., Suite 16
 
            Des Moines, Iowa 50312
 
            
 
            Mr. Allan Bjork
 
            Attorney at Law
 
            1300 Des Moines Bldg.
 
            Des Moines, Iowa 50309
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            PAM HIBBS,                    :
 
                                          :
 
                 Claimant,                :      File No. 753666
 
                                          :
 
            vs.                           :        A P P E A L
 
                                          :      
 
            EATON CORPORATION,            :      D E C I S I O N
 
                                          :        
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            1803.1, 2204
 
            Deputy's decision affirmed but statement in deputy's 
 
            decision that emotional distress "is considered in the 
 
            scheduled member system adopted by the legislature, at least 
 
            to the extent that the condition does not rise to the 
 
            severity of producing actual disability from gainful 
 
            employment", was specifically rejected as contrary to the 
 
            law as set forth in Cannon v. Keokuk Steel Casting, Appeal 
 
            Decision, January 27, 1988.
 
            
 
            2902, 1401
 
            The deputy made a determination that claimant was not 
 
            credible, based in part of claimant's demonstrated 
 
            discomfort during cross examination but lack of discomfort 
 
            during direct examination.  The appeal decision noted that 
 
            such discomfort could just as easily be attributable to the 
 
            aftereffects of claimant's injury and claimant's physical 
 
            discomfort after sitting for a period of time, or even to 
 
            the general discomfort all people experience while being 
 
            cross-examined by an adverse party.  
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         PAM HIBBS,
 
         
 
              Claimant,
 
                                               File  No.  753666
 
         vs.
 
                                            A R B I T R A T I O N
 
         EATON CORPORATION,
 
                                               D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Pam Hibbs 
 
         against the Eaton Corporation, her former employer.  The case was 
 
         heard and fully submitted at Fort Dodge, Iowa on January 27, 
 
         1988.  The record in this proceeding consists of testimony from 
 
         Pam Hibbs, Michelle Frye, Jackie Smith, Jane Stahl, Wayne Hibbs, 
 
         Jr., Kelly Allen, Shelly Foss and Cathy Cullinan.  Testimony from 
 
         Cecelia Blaskovich is in the record as an offer of proof only.  
 
         The record also contains claimantOs exhibits 1, 2A, 2B, 3A, 3B, 
 
         4, 5, 6, 8, 9, 10 and 10A.  The portion of exhibit 9 which was 
 
         received into evidence is pages 1 through 32, 35 through 42 and 
 
         119 through 123.  The balance of exhibit 9 is in the record as an 
 
         offer of proof only.  Claimant's exhibit 12 is in the record as 
 
         an offer of proof only.  The record also contains defendant's 
 
         exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, N, 0, P, Q, R, S, 
 
         T, U, V, W, X, Y, Z, AA, BB, CC, DD, EE, FF, GG and HH.  Official 
 
         notice was taken of the first report of injury in the agency 
 
         file, of the forms 2 and 2A in the file and of the current 
 
         official Iowa road map.
 
         
 
                                      ISSUES
 
         
 
              On December 6, 1983, Pam Hibbs injured her right knee in an 
 
         accident that occurred at her place of employment.  The parties 
 
         stipulated that the injury to her knee arose out of and in the 
 
         course of her employment.  Hibbs also claims injury, resulting 
 
         from that accident, to her psyche, nervous system, back and hip. 
 
          Hibbs alleges that she has developed thrombophlebitis and 
 
         pulmonary emboli as a result of that accident.  The employer 
 
         denies that claimant's injury extends beyond her right leg.  It 
 
         was stipulated that the correct rate of compensation is $249.78 
 
         per week.  The issues for determination in this case are whether 
 
         claimant's injury extends beyond her leg and into the body as a 
 
         whole; her entitlement to compensation for healing period and 
 
         permanent disability (claimant claims that she is totally 
 
         disabled under the odd-lot doctrine); and, section 87.27 benefit 
 
         entitlement.  The employer asserts as an affirmative defense that 
 
         claimant's misrepresentation of prior injuries when she applied 
 
         for her job with the employer bars any recovery in this case.
 
         
 
                            
 
         
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE   2
 
                            
 
                            
 
                            SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Pam Hibbs is a 35-year-old married woman who dropped out of 
 
         school during the ninth grade, but later obtained a GED and has 
 
         taken one year of a two-year electronics course.  She has a 
 
         varied work history.  She commenced employment with the Eaton 
 
         Corporation in 1983.  Exhibit U shows that she applied for the 
 
         job on June 28, 1983.  Exhibit T shows that she was hired on 
 
         August 23, 1983.  Exhibit W and testimony from Cathy Cullinan 
 
         establishes that claimant denied having had any knee trouble on 
 
         her preemployment medical history questionaire.  Exhibit A-7 
 
         shows that, in September, 1981, claimant was hospitalized for 
 
         problems in her right knee for which she was treated by 
 
         arthroscopic surgery by Wayne E. Janda, M.D. (exhibits A-7; F, 
 
         pages 1-3).
 
         
 
              Claimant's first job with Eaton was mopping floors and 
 
         taking out garbage.  She became an inspector.  Claimant stated 
 
         that most of the time she worked performing a job referred to as 
 
         electroetching.  From time to time she performed other jobs in 
 
         the plant.  Claimant stated that all of the jobs she performed 
 
         involved carrying materials weighing up to 35 pounds.  She stated 
 
         that she stood and walked on a concrete floor, but that some jobs 
 
         permitted her to sit on a metal chair part of the time.  At one 
 
         point, claimant was taken off a job which involved chrome plating 
 
         because she developed illness from the materials used.
 
         
 
              Claimant stated that, on December 6, 1983, while 
 
         electroetching, she had placed valves in degreaser and was moving 
 
         a hoist when it began to tip.  Claimant stated that, while trying 
 
         to prevent pans from falling out of the hoist, she hit her right 
 
         knee on the corner of a steel table and fell, landing on her 
 
         back.  Claimant worked the remainder of that day, but on the 
 
         following morning sought medical treatment from her family 
 
         physician, Clarine Coker, M.D., for her right knee.  Claimant 
 
         stated that the knee was treated by wrapping it and use of 
 
         crutches.  Claimant stated that she worked for a day or two while 
 
         she was on crutches and then sought further treatment from Dr. 
 
         Janda.  On January 5, 1984, Dr. Janda performed arthroscopic 
 
         surgery on claimant's right knee.  The patella, and the distal 
 
         portions of the medial and lateral femoral condyles were found to 
 
         have chondromalacic changes and were shaved.  No defects were 
 
         detected in either menisci or in the cruciate ligament (exhibit 
 
         A-20).  Claimant stated that she returned to work in late 
 
         February, 1984 with restrictions that she have a sitting job and 
 
         that she be limited to working 40 hours per week.  Exhibit T 
 
         shows that claimant worked on February 27, 1984 and on March 2, 
 
         1984.  The remarks portion of exhibit T and the second page of 
 
         exhibit V report that claimant's son ran away from home on 
 
         February 27, 1984.  Exhibit V also indicates that claimant's job 
 
         was in jeopardy due to absenteeism for which she had been 
 
         counseled on November 4, 1983, but had further absences on 
 
         November 23, and November 28, 1983.  From exhibit T it appears 
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE   3
 
         
 
         
 
         that claimant worked only one day after subsequently being 
 
         counseled about absenteeism on February 28, 1984.
 
         
 
              Claimant testified that, during the period of her return to 
 
         work, she was assigned work which required carrying and lifting 
 
         cardboard boxes.  She stated that her knee became quite swollen 
 
         and that she went to the nurse and was told to keep working.  
 
         Claimant stated that she went back to Dr. Janda the following day 
 
         and he again took her off work.  Exhibit F, page 6, shows that 
 
         claimant was seen by Dr. Janda on March 2, 1984 and that he 
 
         observed swelling over the prepatellar bursa and indicated that 
 
         claimant was disabled from working (exhibit F, page 6).
 
         
 
              Claimant testified that, since leaving work, she has 
 
         experienced blood clots in June, September, October and 
 
         subsequently.  She stated that the clots produced severe pain in 
 
         her chest.  Claimant complained of having trouble with her back 
 
         and hips.  Claimant stated that she has developed emotional 
 
         problems.  Claimant attributes all of these subsequent problems 
 
         to a changed gait which she has developed as a result of the knee 
 
         problem, to the pain which the knee produces and to her lack of 
 
         employment.
 
         
 
              Claimant testified that she has a prescription for Coumadin 
 
         (a blood thinner) from Dr. Coker, for Tylenol 3 for pain and for 
 
         Activan to help her sleep.  Claimant stated that Dr. Coker has 
 
         recommended that she not sit for longer than 30 minutes 
 
         continuously.  Claimant stated that she does not go up and down 
 
         stairs in her home and that she does not vacuum, do yard work, or 
 
         make beds.  She stated that she occasionally washes dishes and 
 
         that, if she picks things up, she is laid up for a while 
 
         afterward due to her back, hip and knee.  Claimant stated that 
 
         she has a driver's license, but does not drive any more.  
 
         Claimant stated that she would be unable to sit long enough to 
 
         perform a telephone job and that she is unable to drive to get to 
 
         and from any job.  She stated that she could not work in a 
 
         restaurant or as a retail clerk because of her problems with 
 
         standing and walking.
 
         
 
              Wayne E. Nelson, Jr., testified that he was claimant's 
 
         supervisor in 1983.  Nelson stated that claimant was scheduled to 
 
         come back to work on February 27, 1984, but did not do so and did 
 
         not call in regarding her absence or in any way report it until 
 
         she came to work on February 28, 1984, at which time she was 
 
         counseled regarding absenteeism (exhibit EE, pages 11 and 12).  
 
         Nelson stated that claimant was not a willing worker, frequently 
 
         sought ways of avoiding work and did not like to work overtime or 
 
         weekends.  Nelson stated that she was a "whiner" in that she was 
 
         never satisfied with any job and was moved around in an attempt 
 
         to find a job that suited her (exhibit EE, pages 13 and 14).  
 
         Nelson stated that, when claimant returned to work in 1984, she 
 
         was given a sit-down job and that stenciling boxes would likewise 
 
         be a sit-down job (exhibit EE, pages 7-9).
 
         
 
              Exhibit FF is the deposition of Roger Vanderploeg, an 
 
         employee of Pinkerton Security Service, who was assigned to work 
 
         at the Eaton Corporation plant at Belmond, Iowa from October, 
 
         1983 until May, 1985.  Vanderploeg testified that he frequently 
 
         saw claimant at the Eaton plant while she was employed there and 
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE   4
 
         
 
         
 
         that he saw her on six or eight occasions when she came to the 
 
         plant after her injury.  He stated that she was always on 
 
         crutches, hunched over and moved as if she was in a great deal of 
 
         pain.  Vanderploeg stated that, on or about May 6, 1984, he 
 
         observed claimant and another woman walking down the street in 
 
         Fort Dodge at a flea market near the fairgrounds and that 
 
         claimant walked without crutches or a cane and without any 
 
         observable problem (exhibit FF, pages 6 and 7).  Vanderploeg 
 
         stated that, at a subsequent time, in the summer of 1984, he 
 
         observed claimant standing, without a cane, crutches or anything 
 
         to lean against, while talking with another woman (exhibit FF, 
 
         pages 8 and 9).  Claimant denied being at the fairgrounds on or 
 
         about May 6, 1984.  Claimant explained that she and her sisters 
 
         resemble each other a great deal.
 
         
 
              Exhibit GG is the deposition of Kathy  Bohman, an employee 
 
         of the Eaton Corporation.  Bohman testified that, in 
 
         approximately July of 1984, she observed claimant at an exotic 
 
         animal swap meet in Bradford, Iowa.  Bohman stated that claimant 
 
         raised exotic animals and that she observed claimant unloading 
 
         cages of animals from her pickup and carrying them into the 
 
         building where the swap meet was held.  Bohman stated that 
 
         claimant did so without use of a cane or crutches and appeared to 
 
         have no difficulty walking.  Bohman stated that, after unloading, 
 
         claimant and her husband parked their pickup and came back, at 
 
         which time claimant was using crutches.  Bohman stated that she 
 
         has observed claimant driving a vehicle since claimant ceased 
 
         employment at Eaton.  Claimant denied being at the swap meet at 
 
         Bradford, Iowa in 1984.
 
         
 
              Shelly Foss testified that she was formerly a plant nurse 
 
         with Eaton.  Foss stated that, when claimant returned to work, 
 
         she accompanied claimant to the line and placed her in a sitting 
 
         job in accordance with the restrictions imposed by the physician. 
 
          Foss further stated that she checked on claimant several times 
 
         and always found her to be sitting.  Foss stated that claimant 
 
         came to the nurse's office and complained of her knee.  Claimant 
 
         reported that she was having to get boxes and was not in a 
 
         sit-down job.  Foss stated that she examined the knee, found 
 
         nothing which seemed to be in the nature of an emergency, gave 
 
         claimant analgesics and sent her back to work.  Foss stated that 
 
         she then contacted claimant's foreman to see what claimant was 
 
         doing and also went to observe claimant.  Foss stated that she 
 
         found claimant sitting with a stack of boxes on each side of her 
 
         and that claimant would pick up a box from one side, set it on 
 
         her lap and stencil it, and then place it on a stack on the other 
 
         side.  Foss stated that, for the rest of that work shift, 
 
         claimant did not return with any complaints.  Foss stated that 
 
         she accompanied claimant to the door when claimant was leaving 
 
         the plant at the end of the shift.
 
         
 
              Claimant stated that, when she returned to work in February, 
 
         she was given a sitting job, but that from time to time, she got 
 
         up and walked back and forth to get boxes.
 
         
 
              Foss testified that, in July of 1986, she was in Webster 
 
         City at a Casey's store and observed claimant together with her 
 
         husband, Wayne.  Foss stated that Wayne was using the telephone 
 
         and that she observed claimant walk without crutches, a cane or 
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE   5
 
         
 
         
 
         any apparent difficulty.  Claimant did not recall seeing Foss at 
 
         the Casey's store, stated that if she were there, she would have 
 
         been walking with a cane, and that if anyone had been using a 
 
         phone, it would have been her rather than her husband.
 
         
 
              Wayne Hibbs, Jr., claimant's spouse, testified at the 
 
         hearing.  His testimony in general corroborated claimant's 
 
         testimony regarding her problems, complaints and restricted 
 
         activity level.
 
         
 
              Claimant has been treated and evaluated by a number of 
 
         physicians for her various symptoms.  She has been hospitalized 
 
         several times and extensive diagnostic tests have been 
 
         conducted.
 
         
 
              Wayne Janda, M.D., an orthopaedic surgeon, was the primary 
 
         physician in charge of treating claimant's knee.  On September 
 
         14, 1981, Dr. Janda had performed arthroscopic surgery on 
 
         claimant's right knee where she was found to have chondromalacia 
 
         of the lateral femoral condyle and patella (exhibit A-7).  On 
 
         January 1, 1983, claimant was seen by Dr. Janda with complaints 
 
         of pain in her right knee which she could not attribute to any 
 
         particular cause or incident.  On January 7, 1983, claimant 
 
         reported that the pain had become unbearable, even with use of an 
 
         immobilizer and crutches.  Dr. Janda's records note that she had 
 
         improvement on January 27, 1983 (exhibit F, pages 2 and 3).
 
         
 
              The injury which is the subject of this litigation occurred 
 
         on December 6, 1983.  Claimant was hospitalized and had 
 
         arthroscopic surgery on her right knee on  January 5, 1984.  The 
 
         internal examination of the knee performed during surgery found 
 
         no abnormalities other than chondromalacia (exhibits A-20; F, 
 
         pages 26 and 27).  After following claimant's case, Dr. Janda, on 
 
         August 22, 1985, rated claimant as having a five percent 
 
         impairment of the right lower extremity, of which two and 
 
         one-half percent was a result of the December 6, 1983 injury 
 
         (exhibit F, pages 46-51).  Dr. Janda stated that claimant's knee 
 
         problems were related to her preexisting condition and the 
 
         December 6, 1983 injury, in approximately a 50-50 ratio.  Dr. 
 
         Janda found no impairment in claimant's back and declined to 
 
         relate claimant's back complaints to the December 6, 1983 injury.  
 
         On May 29, 1985, Dr. Janda indicated that he was unable to give 
 
         an impairment rating to claimant at that time (exhibit F, page 
 
         45).
 
         
 
              Steven G. Taylor, M.D., an orthopaedic surgeon, examined 
 
         claimant's leg in July, 1985.  It was his impression that 
 
         claimant had pain originating from chondromalacia in the patella 
 
         femoral joint of her right knee.  Dr. Taylor did not express an 
 
         opinion regarding permanent impairment or the duration of her 
 
         recovery period.
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              There is no bona fide dispute in the record regarding the 
 
         fact of injury occurring to claimant's right knee as she has 
 
         alleged.  The disputes in the case involve whether or not the 
 
         injuries proximately caused by that December 6, 1983 incident 
 
         include psychological injury, back injury, hip injury and injury 
 
         to claimant's circulatory system, in the form of thrombophlebitis 
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE   6
 
         
 
         
 
         and pulmonary.emboli.
 
         
 
              It is therefore determined that Pam Hibbs sustained a two 
 
         and one-half percent permanent partial disability of her right 
 
         leg as a result of the injuries she sustained on December 6, 1983 
 
         which entitles her to receive 5.5 weeks of compensation for 
 
         permanent partial disability under the provisions of Iowa Code 
 
         section 85.34(2)(o).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 6, 1983 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE   7
 
         
 
         
 
         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).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756 (1956).  
 
         If the claimant had a preexisting condition or disability that is 
 
         aggravated, accelerated, worsened or lighted up so that it 
 
         results in disability, claimant is entitled to recover.  Nicks v 
 
         Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812 (1962).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              When an injury is limited to a scheduled member, the loss is 
 
         measured functionally, not industrially.  Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983).
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects (or compensatory change), result in permanent impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
         Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
         
 
              For injury resulting from trauma to a scheduled member to be 
 
         compensated industrially, the claimant must prove that there has 
 
         been permanent, physical injury and impairment accompanied by 
 
         derangement or change beyond the scheduled member and that the 
 
         permanent condition was proximately caused by the injury to the 
 
         scheduled member.  Lauhoff Grain v. McIntosh, 395 N.W.2d 834 
 
         (Iowa 1986); Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 
 
         130 N.W.2d 667 (1964); Schell v. Central Engineering Co., 232 
 
         Iowa 421, 426, 4 N.W.2d 399 (1942).  Where the permanent injury 
 
         is a circulatory ailment, the disability is to be evaluated 
 
         industrially, even though the symptoms may be primarily 
 
         manifested in a scheduled member.  Blacksmith v. All-American, 
 
         Inc., 290 N.W.2d 348 (Iowa 1980); Barton v.,Nevada Poultry Co., 
 
         253 Iowa 285, 110 N.W.2d 660 (1961).
 
              
 
              Claimant seeks to have her disability compensated 
 
         industrially on the basis of complaints she has regarding her 
 
         back and hips.  Paul From, M.D., a specialist in internal 
 
         medicine and other physicians in the record have attributed 
 
         claimant's back problems to her altered gait.  Claimant has been 
 
         diagnosed as having a back sprain with radiculitis in her right 
 
         leg.  A CT scan has shown mild central spinal stenosis and slight 
 
         bulging of her L5-Sl disc (exhibit A-17).  No physician has 
 
         related claimant's stenosis or any objectively determinable 
 
         abnormality in claimant's hips or spine to the December, 1983 
 
         injury.  The assessment of claimant's back, hip and knee problems 
 
         as made by Dr. Janda is accepted as correct over any conflicting 
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE   8
 
         
 
         
 
         evidence in the record due to his status as the orthopaedic 
 
         surgeon who was primarily responsible for treatment of her 
 
         condition and his familiarity with claimant's preexisting 
 
         condition.  Accordingly, it is determined that claimant has 
 
         failed to prove, by a preponderance of the evidence, that the 
 
         injury of December 6, 1983 is a proximate cause of any permanent 
 
         disability affecting her back or hips.  It is further found that 
 
         claimant has failed to prove, by,a preponderance of the evidence, 
 
         that any permanent impairment or disability exists in claimant's 
 
         back or hips.
 
         
 
              Claimant seeks to have her disability evaluated industrially 
 
         on the basis of alleged pulmonary emboli.  Evidence in the record 
 
         from the medical practitioners consistently indicates that a 
 
         person who has surgery on a leg, who wears a cast or who 
 
         otherwise has a leg immobilized is at risk for developing deep 
 
         vein thrombosis (clotting) and pulmonary emboli.  It is clear 
 
         that pulmonary emboli is a very serious condition which can be 
 
         fatal.  If claimant did, in fact, develop thrombophlebitis and 
 
         pulmonary emboli, the evidence clearly indicates that the 
 
         condition would probably have been proximately caused by the 
 
         December 6, 1983 injury since claimant's knee surgery and 
 
         immobility of her leg resulted from that injury.  The critical 
 
         issue in the case is whether or not claimant ever actually 
 
         developed a pulmonary embolism, thrombophlebitis, deep vein 
 
         thrombosis or any other clotting disorder.
 
         
 
              Claimant presented herself with complaints of chest pain on 
 
         a number of occasions.  The first appears to have been December 
 
         15, 1983 (exhibit D-1, page 4).  A chest x-ray showed some 
 
         abnormality in the lower one-third of claimant's left lung, but 
 
         it was not diagnostic (exhibit D-1, pages 3 and 15).  Claimant 
 
         had been fitted with the knee immobilizer on December 12, 1983 
 
         (exhibit F, page 3).
 
         
 
              Claimant exhibited similar complaints when she was 
 
         hospitalized at the Belmond Community Hospital on May 31, 1984.  
 
         The x-ray report indicated no change since a prior examination 
 
         six to seven months earlier (exhibit D-3, page 14).  Dr. Coker's 
 
         notes indicate that claimant's pain had resolved and that she was 
 
         discharged on June 1, 1984 with an appointment for a lung scan 
 
         having been made (exhibit D-3, page 17).  A lung perfusion scan 
 
         was performed at St. Joseph Mercy Hospital and showed a lack of 
 
         perfusion of the lateral segment of the left lower lobe that was 
 
         determined to be consistent with pulmonary embolus of the left 
 
         lower lobe (exhibit A-21, page 8).
 
         
 
              Exhibit A-16 shows claimant having been admitted to St. 
 
         Joseph Mercy Hospital on August 30, 1984.  Another lung perfusion 
 
         scan was performed which was interpreted as showing a high 
 
         probability of pulmonary embolus to the left lower lobe (exhibit 
 
         A-16, page 9).  Venous doppler studies, however, showed a low 
 
         probability of deep acute venous thrombosis in claimant's lower 
 
         extremities (exhibit A-16, page 10).  Claimant was seen by Bruce 
 
         Harlan, M.D., who diagnosed claimant as having pulmonary embolism 
 
         of her left lung (exhibit A-16, page 2).  Dr. Harlan related 
 
         claimant's clotting problem to inactivity.  On March 26, he 
 
         reported that her lung scan was negative and that he also found 
 
         no evidence of deep vein thrombosis in either leg.  On May 14, 
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE   9
 
         
 
         
 
         1987, Dr. Harlan issued a report which indicated that he did not 
 
         know if claimant suffered from any permanent condition, but that 
 
         there was no reason why she could not return to work.  On June 
 
         10, 1986, Dr. Harlan indicated that claimant had recovered from 
 
         her pulmonary embolism in February of 1985 (exhibit F, pages 
 
         42-43, 52 and 53).
 
         
 
              On November 20, 1984, claimant was again hospitalized with 
 
         complaints of shortness of breath and left chest pain.  A lung 
 
         scan showed some perfusion defects in the left upper and lower 
 
         lobes and also in the right lower lung.  It was interpreted as 
 
         showing a high probability of pulmonary emboli (exhibit A-19, 
 
         page 6).  Impedance plethysmography and venous doppler 
 
         examination showed no evidence of acute deep vein thrombosis in 
 
         claimant's legs (exhibit A-19, page 7).
 
         
 
              Ventilation and perfusion images obtained on February 21, 
 
         1985 showed no evidence of pulmonary embolus (exhibit A-21, page 
 
         2).
 
         
 
              On June 8, 1985, claimant was transferred from Belmond 
 
         Hospital to Iowa Methodist Medical Center with complaints of 
 
         chest pain.  A pulmonary angiogram was performed which showed no 
 
         evidence of pulmonary embolism.  A lung perfusion scan was 
 
         normal.  Randall R. Hanson, M.D., a physician who is 
 
         board-certified in internal medicine with a subspecialty of 
 
         pulmonary medicine, managed claimant's case (exhibit I-1, pages 
 
         13, 31 and 32).  It is noted that an immunology report appears in 
 
         the record which was interpreted as showing a nonspecific 
 
         staining pattern that is seen in a number of collagen vascular 
 
         disorders, most frequently systemic lupus erythematosus, 
 
         scleroderma and mixed connective tissue disease as well as 
 
         rheumatoid arthritis and some noncollagen vascular diseases and 
 
         in individuals without any identifiable disease process (exhibit 
 
         I-1, page 40).
 
         
 
              On December 2, 1985, a perfusion and ventilation scan was 
 
         performed which were interpreted as showing multiple perfusion 
 
         defects in both lungs without matching the ventilating defects 
 
         that were compatible with multiple pulmonary emboli (exhibit J, 
 
         page 22).  A subsequent scan performed on December 19, 1985 was 
 
         interpreted as normal (exhibit J, page 23).
 
         
 
              Claimant presented herself with chest pain to the Hamilton 
 
         County Hospital in Webster City, Iowa on December 31, 1985 and 
 
         was transferred to Mercy Hospital Medical Center in Des Moines, 
 
         Iowa.  Perfusion and ventilation lung imaging was performed which 
 
         showed a defect in claimant's left lung, but it was determined to 
 
         show a low probability for pulmonary embolism (exhibit K, page 
 
         16).  A pulmonary angiogram was performed which was interpreted 
 
         as being normal (exhibit K, page 17).  A venogram of the right 
 
         lower leg was performed which revealed no abnormalities.  
 
         Pulmonary function study was inconclusive (exhibit K, page 20).  
 
         Claimant's care was primarily managed by Donald Burrows, M.D., 
 
         who is board-certified in internal medicine with a subspecialty 
 
         in pulmonary medicine.  At the time of discharge, Dr. Burrows 
 
         indicated:
 
         
 
              Old x-ray scans & angiogram was obtained from previous 
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE  10
 
         
 
         
 
              hospitalizations and it was my impression that the lung 
 
              scans were normal in the past secondary to airway 
 
              disease which represented her asthma and abuse of 
 
              tobacco.  It seemed unlikely that she probably ever had 
 
              a PE, however, this could not be certain since there 
 
              was not repeat pulmonary angiographies with these 
 
              episodes.
 
         
 
         (Exhibit K, page 2)
 
         
 
              Paul From, M.D., a board-certified specialist in internal 
 
         medicine, examined claimant on May 23, 1986 and reviewed records 
 
         regarding her treatment.  Dr. From concluded that claimant had 
 
         experienced pulmonary emboli that occurred at one or two 
 
         occasions, but that she had not experienced constant recurrence 
 
         of the condition and that she had no residuals from the 
 
         condition.  He felt that it was not necessary for her 
 
         anti-coagulant medication to be continued (exhibit 4, pages 
 
         9-13).  Dr. From did not review claimant's ventilation and 
 
         perfusion scans or the angiograms (exhibit 4, page 32).
 
         
 
              Dr. Burrows explained that the angiogram is the most 
 
         reliable test for identifying pulmonary emboli.  He explained 
 
         that a perfusion scan that is performed without an accompanying 
 
         ventilation scan is not highly reliable (exhibit Z, pages 12-16).  
 
         Dr. Burrows stated that claimant absolutely had no pulmonary 
 
         embolism on January 6, 1986 (exhibit Z, page 25).  He expressed 
 
         the opinion that she did not have pulmonary emboli during the 
 
         period of from March, 1985 until January, 1986 (exhibit Z, pages 
 
         37 and 38).  Dr. Burrows concluded that it was unlikely that 
 
         claimant had experienced any pulmonary embolism prior to March, 
 
         1985, but that he could not be certain of such fact.  He was 
 
         certain that her pulmonary emboli, if she ever had the condition, 
 
         was not recurrent (exhibit Z, pages 40 and 41).  Dr. Burrows felt 
 
         that there was a 10%-15% chance that claimant had actually 
 
         experienced pulmonary embolism in 1984 (exhibit Z, page 41).
 
         
 
              Dr. Burrows stated that claimant should be capable of 
 
         engaging in all types of activities from a pulmonary standpoint 
 
         (exhibit Z, pages 58 and 59).  Dr. Burrows explained that 
 
         claimant does have asthma and obstructive airway disease that is 
 
         due to the use of cigarettes (exhibit Z, pages 17, 24 and 49).  
 
         Dr. Burrows explained that the abnormalities seen in claimant's 
 
         perfusion and ventilation scans were compatible with airway 
 
         disease that resulted from smoking (exhibit Z, page 17).
 
         
 
              Dr. Burrows emphasized that, since pulmonary embolism is a 
 
         potentially lethal disease, it was not unreasonable for the 
 
         physicians who had initially treated claimant and diagnosed a 
 
         pulmonary embolism condition to have done so and treated it, even 
 
         though the diagnosis was made without use of all available tests 
 
         (exhibit Z, pages 60 and 61).
 
         
 
              Randall R. Hanson, M.D., noted that claimant did not have 
 
         pulmonary emboli when he saw her in June, 1985 (exhibit BB, page 
 
         10).  Dr. Hanson noted that claimant's symptoms were the same on 
 
         all occasions, even when the possibility of pulmonary emboli had 
 
         been ruled out and that accordingly the accuracy of the diagnosis 
 
         of pulmonary embolism that had been previously made was 
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE  11
 
         
 
         
 
         questionable (exhibit BB, page 13).  Dr. Hanson felt that 
 
         claimant could work and that she had not permanent impairment 
 
         from a pulmonary standpoint (exhibit BB, pages 16 and 17).
 
         
 
              Drs.  Burrows and Hanson have both actively treated claimant 
 
         and have equally high levels of professional certification with 
 
         their subspecialty of pulmonary medicine.  Drs. From and Harlan 
 
         both found that claimant had pulmonary embolism, but that it had 
 
         resolved.  Neither identified any residual disability as a result 
 
         of the condition.  Drs. Burrows and Hanson questioned whether or 
 
         not the diagnosis of pulmonary embolism that had been previously 
 
         made was ever actually correct.  The claimant has the burden of 
 
         proof and it is determined that the claimant has failed to 
 
         establish, by a preponderance of the evidence, that she ever 
 
         suffered from a pulmonary embolism.  The physical symptoms which 
 
         she manifested which apparently were a major factor in initially 
 
         suspecting the alleged condition appear to have been 
 
         substantially identical at times when the diagnostic tests 
 
         clearly showed that she did not have it.  The abnormalities noted 
 
         on the perfusion scans and ventilation scans can, according to 
 
         Dr. Burrows, be explained by claimant's asthma and smoking.  The 
 
         assessment of this case made by Dr. Burrows is adopted as being 
 
         correct.
 
         
 
              The record clearly establishes that the claimant has had a 
 
         history of emotional and psychological problems prior to the 
 
         accident of December 6, 1983.  Claimant was evaluated by Todd 
 
         Hines, a licensed clinical psychologist, who found that claimant 
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE  12
 
         
 
         
 
         had an histrionic personality disorder.  He expressed the opinion 
 
         that the disorder was aggravated by her 1983 injury to the extent 
 
         that she was psychologically disabled at the time he examined her 
 
         in May, 1986.  Dr. Hines recommended further treatment of 
 
         claimant's condition (exhibit 3-A, pages 17-25 and 63; exhibit 
 
         3-B, pages 27 and 28).
 
         
 
              Claimant was also examined by Michael Taylor, M.D., a 
 
         board-certified psychologist.  Dr. Taylor found that claimant 
 
         suffered from no disabling major psychiatric disorder (exhibit 
 
         AA, pages 18-23).  Dr. Taylor indicated that claimant does have a 
 
         personality disorder, but that it is unchanged from what it was 
 
         prior to the time of injury (exhibit AA, pages 36-42).  The 
 
         opinion expressed by Dr. Taylor is accepted as correct in view of 
 
         his status as a board-certified psychiatrist.
 
         
 
              It is therefore determined that Pam Hibbs has no 
 
         psychological or emotional disability that was proximately caused 
 
         by the December 6, 1983 injury.  It is expected that any 
 
         injury,,even to a scheduled member, carries with it some 
 
         emotional distress, but that is considered in the scheduled 
 
         member system adopted by the legislature, at least to the extent 
 
         that the condition does not rise to the severity of producing 
 
         actual disability from gainful employment.
 
         
 
              In considering this case, the opinions of the specialists, 
 
         the physicians to whom claimant had been referred for treatment 
 
         and evaluation, are generally given greater weight than the 
 
         opinions of Dr. Coker or Albert J. Kollasch, M.D., claimant's 
 
         family physicians.  It is quite remarkable that all of the 
 
         internal medicine specialists, Drs.  Harlan, Hanson, Burrows and 
 
         From, have recommended that claimant's anti-coagulative 
 
         medication be discontinued, but her family physicians have chosen 
 
         to maintain its use.
 
         
 
              Claimant's entitlement to healing period is governed by 
 
         section 85.34(l) of The Code.  In accordance with Thomas v. 
 
         William Knudson & Son, Inc., 349 N.W.2d 124, 126 (Iowa App. 
 
         1984), it is determined that claimant's healing period ended on 
 
         August 22, 1985 when Dr. Janda assigned an impairment rating.  It 
 
         is noted that he had previously indicated that he was unable to 
 
         assign a rating at the end of May, 1985.
 
         
 
              In considering this case, the appearance and demeanor of all 
 
         witnesses who testified at hearing was observed and considered in 
 
         light of the other evidence in the case.  Michelle Frye, Jackie 
 
         Smith, Jane Stahl, Kelly Allen, Cathy Cullinan and particularly, 
 
         Shelly Foss are found to be fully credible witnesses.  Claimant 
 
         sat without evidencing any apparent discomfort throughout her 
 
         direct. examination during the late morning of the hearing but, 
 
         upon commencement of cross-examination, she abruptly began to 
 
         exhibit obvious indications of discomfort.
 
         
 
              In accord with the previous determinations made in this 
 
         case, defendant is not responsible for treatment of the alleged 
 
         or misdiagnosed pulmonary embolism conditions, or for any 
 
         orthopaedic problems subsequent to the end of the healing period 
 
         on August 22, 1985.  Treatment of the alleged pulmonary embolism 
 
         condition subsequent to Dr. Harlan's release of the claimant in 
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE  13
 
         
 
         
 
         March, 1985 is not covered, although prior treatment is the 
 
         expense of the employer since the diagnosis was supported by the 
 
         information that was known and available to the treating 
 
         physicians at that time.  Pote v. Mickow, file number 694639, 
 
         Review-reopening Decision (June 17, 1986); Butcher v. Valley 
 
         Sheet Metal, IV Iowa Industrial Commissioner Report, 49 (App. 
 
         Decn. 1983).
 
         
 
              The expenses for which defendant is responsible for payment 
 
         are as follows:
 
         
 
              Iowa Methodist Medical Center              $  278.02
 
              McFarland Clinic, P.C.                        104.00
 
              Des Moines Orthopedic Surgeons                 97.00
 
              Independent Medical Surgical Group            529.00
 
              Radiology Professional Corporation            182.20
 
              Radiologist of Mason City                   1,100.25
 
              Surgical Associates of North Iowa             309.00
 
              Steele Memorial Clinic                        320.00
 
              Corner Drug Store Company                     569.29
 
              Redder Drug                                   117.90
 
              Belmond Community Hospital
 
                             (exhibit 9, page 170)        2,091.14
 
              St. Joseph Mercy Hospital                  10,792.44
 
              Sickroom Service                               69.95
 
              ITS Home Care                                 118.80
 
              Miller Medical Service                         65.00
 
         
 
              The employer's contention that claimant's claim is barred as 
 
         a result of her failure to disclose her preexisting knee problems 
 
         on her preemployment physical examination constitutes a defense 
 
         in some states, but it is one that has not yet been recognized in 
 
         Iowa.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The injury claimant sustained on December 6, 1983 was 
 
         limited to her right knee.
 
         
 
              2.  Subsequent to December 6, 1983, claimant experienced 
 
         pain and discomfort in various parts of her body and emotional 
 
         distress.
 
         
 
              3.  Any disability that resulted from any physical or 
 
         psychological pain, discomfort or distress that may have resulted 
 
         from the December 6, 1983 was temporary in nature and produced no 
 
         permanent impairment or permanent disability, other than the two 
 
         and one-half percent permanent impairment of claimant's right leg 
 
         as determined by Dr. Janda.
 
         
 
              4.  The final assessments made by Drs. Janda, Burrows and 
 
         Michael Taylor are correct.
 
         
 
              5.  Michelle Frye, Jackie Smith, Jane Stahl, Kelly Allen, 
 
         Shelly Foss and Cathy Cullinan are fully credible witnesses.
 
         
 
              6.  The reliability of the testimony provided by claimant 
 
         and her husband is not well established.
 
         
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE  14
 
         
 
         
 
              7.  Following the injury on December 6, 1983, claimant was 
 
         medically incapable of performing work in employment 
 
         substantially similar to that she performed at the time of injury 
 
         until August 22, 1985 when Dr. Janda determined that she had 
 
         reached the point it was medically indicated that further 
 
         significant improvement from the injury was not anticipated and 
 
         an impairment rating was assigned.
 
         
 
              8.  Expenses incurred prior to August 22, 1985 for 
 
         claimant's orthopaedic problems are reasonable treatment for the 
 
         injury.
 
         
 
              9.  Treatment for the alleged pulmonary embolism condition 
 
         that was provided prior to claimant's release from Iowa Methodist 
 
         Medical Center on June 13, 1985 constitutes reasonable treatment 
 
         for the injury.
 
         
 
             10.  The following medical expenses were incurred in 
 
         obtaining reasonable treatment for the injury of December 6, 
 
         1983:
 
         
 
              Iowa Methodist Medical Center            $  278.02
 
              McFarland Clinic, P.C.                      104.00
 
              Des Moines Orthopedic Surgeons               97.00
 
              Independent Medical Surgical Group          529.00
 
              Radiology Professional Corporation          182.20
 
              Radiologist of Mason City                 1,100.25
 
              Surgical Associates of North Iowa           309.00
 
              Steele Memorial Clinic                      320.00
 
              Corner Drug Store Company                   569.29
 
              Redder Drug                                 117.90
 
              Belmond Community Hospital
 
                             (exhibit 9, page 170)      2,091.14
 
              St. Joseph Mercy Hospital                10,792.44
 
              Sickroom Service                             69.95
 
              ITS Home Care                               118.80
 
              Miller Medical Service                       65.00
 
         
 
              11.  Claimant has been fully paid for all transportation 
 
         expenses
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant's healing period, under the provisions of 
 
         section 85.34(l), commences on December 6, 1983 and runs through 
 
         August 22, 1985, a period of 89 1/7 weeks.
 
         
 
              3.  Claimant is entitled to receive 5.5 weeks of 
 
         compensation for a two and one-half percent permanent partial 
 
         disability of her right leg payable commencing August 23, 1985.
 
         
 
              4.  Medical expenses incurred by authorized physicians in 
 
         treatment of a condition which, at the time, is believed by 
 
         authorized physicians to be work-related, are the responsibility 
 
         of the employer, even though it is subsequently determined that 
 
         the condition is not work-related.
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE  15
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendant pay claimant 
 
         eighty-nine and one-seventh (89 1/7) weeks of compensation for 
 
         healing period commencing December 6, 1983 at the stipulated rate 
 
         of two hundred forty-nine and 78/100 dollars ($249.78) per week.
 
         
 
              IT IS FURTHER ORDERED that defendant pay claimant five point 
 
         five (5.5) weeks of compensation for permanent partial disability 
 
          at the stipulated rate of two hundred forty-nine and 78/100 
 
         dollars ($249.78) per week commencing August 23, 1985.
 
         
 
              IT IS FURTHER ORDERED that the defendant is entitled to 
 
         credit for all amounts previously paid and shall paid any past 
 
         due, accrued amounts in a lump sum together with interest 
 
         pursuant to section 85.30 of The Code.
 
         
 
              IT IS FURTHER ORDERED that defendant pay the following 
 
         medical expenses:
 
         
 
              Iowa Methodist Medical Center            $   278.02
 
              McFarland Clinic, P.C.                       104.00
 
              Des Moines Orthopedic Surgeons                97.00
 
              Independent Medical Surgical Group           529.00
 
              Radiology Professional Corporation           182.20
 
              Radiologist of Mason City                  1,100.25
 
              Surgical Associates of North Iowa            309.00
 
              Steele Memorial Clinic                       320.00
 
              Corner Drug Store Company                    569.29
 
              Redder Drug                                  117.90
 
              Belmond Community Hospital
 
                            (exhibit 9, page 170)         2,091.14
 
              St. Joseph Mercy Hospital                  10,792.44
 
              Sickroom Service                               69.95
 
              ITS Home Care                                 118.80
 
              Miller Medical Service                         65.00
 
         
 
              IT IS FURTHER ORDERED that the defendant shall receive 
 
         credit for all amounts previously paid.  Nothing herein requires 
 
         payments in excess of the actual charges.
 
         
 
              IT IS FURTHER ORDERED that the defendant pay the costs of 
 
         this action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that the defendant file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 29th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         
 
         
 
         HIBBS V. EATON CORPORATION
 
         PAGE  16
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry W. Dahl
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Allan Bjork
 
         Attorney at Law
 
         1300 Des Moines Building
 
         Des Moines, Iowa 50309
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1108.20, 1402.30, 1402.40
 
                                              1600, 1802, 1803, 2501.
 
                                              Filed November 29, 1988
 
                                              MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAM HIBBS,
 
         
 
              Claimant,
 
                                                  File No.  753666
 
         vs.
 
                                               A R B I T R A T I O N
 
         EATON CORPORATION,
 
                                                  D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1108.20, 1402.30, 1402.40, 1600, 1802, 1803, 2501
 
         
 
              Claimant injured her knee in a clearly compensable accident 
 
         which resulted in a two and one-half percent impairment of the 
 
         leg.  Claimant also sought compensation for total disability 
 
         based upon alleged pulmonary emboli, back and hip problems and 
 
         psychological problems.  It was found that claimant's injury was 
 
         limited to her leg.  It was held that claimant failed to 
 
         establish the existence of pulmonary emboli at any time and that, 
 
         even if any had occurred, she had no residual impairment or 
 
         disability from it.  The same was true with the alleged back, hip 
 
         and psychological problems.  The opinions of board-certified 
 
         specialists who treated the claimant were given greater weight 
 
         than the opinions of individuals who had only examined the 
 
         claimant or her family physicians.
 
         
 
              Defendant unsuccessfully asserted that claimant's failure to 
 
         disclose a preexisting injury and surgery to the knee that was 
 
         injured in this case barred any recovery.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM EMSHOFF,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         PETROLEUM TRANSPORTATION                      File No. 753723
 
         SERVICES,
 
                                                         A P P E A L
 
              Employer,
 
                                                       D E C I S I 0 N
 
         and
 
         
 
         GREAT WEST CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from a review-reopening decision awarding 
 
         claimant benefits for permanent total disability.  Claimant was 
 
         found to have made a prima facie showing that he is an odd-lot 
 
         employee.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening proceeding, claimant's exhibits A through C and 
 
         defendants' exhibits 1 through 11.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issues on appeal:
 
         
 
              1.  Does a causal relationship exist between the injury and 
 
         any disability?
 
         
 
              2.  Is claimant an odd-lot employee?
 
         
 
              3.  Did claimant sustain a permanent total disability
 
         as a result of his injury?
 
         
 
              4.  Is claimant entitled to compensation for depression?
 
         
 
              5.  May claimant recover the fees of Dr. R. Schuler 
 
         Gooding?
 
         
 
                         REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be reiterated 
 
         herein.
 
         
 

 
         
 
         
 
         
 
         EMSHOFF V. PETROLEUM TRANSPORTATION SERVICES
 
         Page   2
 
         
 
         
 
              Briefly stated, claimant sustained a work-related injury on 
 
         December 21, 1983 when he struck his head on a cement beam.  The 
 
         blow did not render claimant unconscious; however, he was stunned 
 
         and fell to his knees.  Following the injury claimant complained 
 
         of dizziness, nausea, and sensitivity to light.  The following 
 
         day claimant went to see his doctor N. A. Massih, M.D., who 
 
         diagnosed claimant's condition as post concussion syndrome.  Dr. 
 
         Massih referred claimant to R. Schuyler Gooding, M.D., who 
 
         concurred with Dr. MassihOs diagnosis of post concussion 
 
         syndrome, but characterized the concussion that claimant 
 
         sustained as severe.
 
         
 
              Dr. Gooding released claimant to return to work on January 
 
         31, 1984.  Claimant continued to work until June 1984 when he 
 
         felt that he was no longer capable of continuing his work as a 
 
         truck driver for defendant-Petroleum Transportation Services.  On 
 
         July 19, 1984 Dr. Gooding performed a total myelogram on claimant 
 
         which indicated L4-5 stenosis and root defects at C5-6.  Claimant 
 
         subsequently underwent a decompressive laminectomy at L4-5 on 
 
         July 25, 1984 and an anterior C5-6 disectomy on November 1, 1984.  
 
         Dr. Gooding attributes the need for these surgeries to the injury 
 
         claimant sustained on December 21, 1983 which Dr. Gooding opines 
 
         lit up the degenerative problems in claimant's back and neck.  
 
         Dr. Gooding further opines that claimant has permanent impairment 
 
         to the lower back of 5 to 10 percent and 10 to 15 percent to the 
 
         neck.
 
         
 
              Joel T. Cotton, M.D., who examined claimant briefly on two 
 
         occasions does not agree that claimant suffered a concussion on 
 
         December 21, 1983 or that claimant's back and neck surgeries are 
 
         related to the work injury on December 21, 1983.
 
         
 
              Claimant has had a history of headaches and dizziness prior 
 
         to the December 1983 injury; however, Dr. Massih states that 
 
         those problems were of a different nature than the headaches and 
 
         dizziness which claimant now experiences.
 
         
 
              Claimant, at the time of the injury in December 1983, was 53 
 
         years old and has worn a pacemaker since 1980.  Claimant has been 
 
         a truck driver for Petroleum Transportation Services for eleven 
 
         years.  He had been working in various consumer sales positions 
 
         prior to 1969 when he began driving trucks.  Vocational testing 
 
         shows that claimant has very high verbal comprehension skills.  
 
         However, James T. Rogers, a vocational rehabilitation counselor 
 
         who has been helping claimant attempt to find work, notes that 
 
         claimant is quite depressed.  Rogers opines that claimant's 
 
         depressive problem will have to be ameliorated before claimant 
 
         will be employable.
 
         
 
              Anita Howell, manager of Crawford Rehabilitation and Health 
 
         Service, conducted a vocational evaluation for claimant and 
 
         suggests a number of sales positions for which claimant would be 
 
         qualified.  However, she admits that sales positions can cause a 
 
         great deal of pressure for some people.
 
         
 
              Dr. Gooding also opines that persons suffering from post 
 
         concussion syndrome have very real problems concentrating, 
 
         reasoning logically, making appropriate judgments and handling 
 
         stress.
 

 
         
 
         
 
         
 
         EMSHOFF V. PETROLEUM TRANSPORTATION SERVICES
 
         Page   3
 
         
 
         
 
         
 
              Claimant's wife states that she is a bookkeeper for Bluffs 
 
         Neurological Associates, P.C., where Dr. Gooding practices and 
 
         that she advised her husband's attorney that she did not want to 
 
         be involved in the case and that all communications with Dr. 
 
         Gooding would have to go through his secretary.  However, she 
 
         admits that she wrote a note to Dr. Gooding which states:
 
         
 
              8-3-84 Dr. Gooding: Shelly Gallner would like for you to 
 
              write another short letter to him stating that Bill's 
 
              present hospitalization & surgery was definitely due to his 
 
              workers' comp. injury.  He said your letter re Gail Herling 
 
              was a good one for reference.  Thanx! Carley
 
         
 
         (Defendants' Exhibit 10)
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and evidence presented.
 
         
 
                                     ANALYSIS
 
         
 
              The first issue defendants raise concerns the causal 
 
         relationship between the injury that claimant sustained on 
 
         December 21, 1983 and his subsequent disability.  The deputy 
 
         correctly adopted the opinions concerning causation of Drs.  
 
         Gooding and Massih over those of Dr. Cotton.  The extent and 
 
         nature of their contacts with claimant make their opinions more 
 
         reliable than those of Dr. Cotton.
 
         
 
              The next three issues raised by defendants concern the 
 
         nature and extent of claimant's disability and will be considered 
 
         together.  The deputy found that claimant cannot perform 
 
         complicated and stressful jobs and that the sales jobs proposed 
 
         by Anita Howell were complicated and stressful.  The deputy also 
 
         found that claimant's lumbar and cervical problems prevented his 
 
         return to truck driving.  Additionally, the deputy found that
 
         
 
         
 
         claimant has applied for sales positions but has not been hired 
 
         apparently on account of his physical, mental and emotional 
 
         condition.  Based on these findings, the deputy held that 
 
         claimant had made a prima facie showing that he is an odd-lot 
 
         employee and that he is permanently totally disabled.  However, 
 
         there is no evidence in the record which indicates whether 
 
         claimant has, in fact, been denied employment on account of his 
 
         present disability.  Although claimant's attorney asked Howell 
 
         the following questions:
 
         
 
              Q.  Mrs. Howell, are you aware that the Kirby Company 
 
              refused Mr. Emshoff employment because of his weight 
 
              limitation?
 
         
 
              A.  No. It was my understanding that they indicated they 
 
              would like to hire him.
 
         
 
              Q.  Are you aware that Mr. Emshoff applied at two automobile 
 
              dealerships and was refused employment?
 

 
         
 
         
 
         
 
         EMSHOFF V. PETROLEUM TRANSPORTATION SERVICES
 
         Page   4
 
         
 
         
 
         
 
              A.  No, I was not.
 
         
 
              Q.  Are you aware that he applied for employment at 
 
              Michael's Carpet and Furniture and was refused employment?
 
         
 
              A.  No, I was not.
 
         
 
         (Transcript II, pp. 77-78)
 
         
 
              No evidence was introduced through claimant or any other 
 
         witness that claimant has actually applied for employment at the 
 
         places mentioned by claimant's attorney or that claimant has been 
 
         refused employment.  James Rogers gave the following testimony 
 
         concerning an attempt to place claimant in a job:
 
         
 
              Q.  Okay.  Have you attempted to find him a job?
 
         
 
              A.  Yes, we have.
 
         
 
              Q.  Okay.  You told us when you did that.
 
         
 
              A.  As a matter of fact, because we were successful as 
 
              Ricardo's, our placement specialist knows this owner, Mr. 
 
              Caria (phonetic), and he sent Bill there, and Bill did make 
 
              an application.  I can't tell you what happened to that, but 
 
              Mr. Byers told him to call back and to, quote -- I have this 
 
              in the record -- quote, aggressively sell himself.  That's 
 
              all I have on that.
 
         
 
              Q.  Okay.  What else have you done to find him a job?
 
         
 
         
 
              A.  Well, this was on 5/15, and I have not personally done 
 
              anything else.  I cannot tell you what Work Net has done or 
 
              what he's done on his own or what our placement specialist 
 
              has done.  I did want to just reiterate that our placement 
 
              specialist did tell me not along [sic] ago, several days 
 
              ago, that he was sort of concerned about the possible 
 
              depressive business and wondered what effect that might have 
 
              on potential employment.
 
         
 
         (Rogers Deposition, pp. 22-23)
 
         
 
              Claimant gave the following testimony concerning his attempt 
 
         to find employment:
 
         
 
              Q.  Now, Mr. Emshoff, have you recently seen a vocational 
 
              counselor with the State of Iowa?
 
         
 
              A.  Yes.
 
         
 
              Q.  And who is that?
 
         
 
              A.  Jim Rogers.
 
         
 
              Q. And what, if anything, is he doing for you at this time?
 
         
 
              A.  Nothing.
 

 
         
 
         
 
         
 
         EMSHOFF V. PETROLEUM TRANSPORTATION SERVICES
 
         Page   5
 
         
 
         
 
         
 
              Q.  Did he get you involved in any testing or attempt to 
 
              find you some employment?
 
         
 
              A.  Yes.
 
         
 
              Q.  Do you believe at this point, this time, that you could 
 
              work?
 
         
 
              A.  No.
 
         
 
              Q.  Why not?
 
         
 
              A.  I am limited on the certain types of work I can do as 
 
              far as lifting is concerned.  Even if I could find a job 
 
              that would -- to where I would not have to lift or would not 
 
              have to stand or would not have to sit in one place for a 
 
              long period of time, I still have the problem with my head, 
 
              which they say they have no medication to control or to heal 
 
              it. At home, when noise builds up, I will have to leave my 
 
              family, go and shut the door into the bedroom, go into 
 
              another room, 
 
         
 
         
 
         
 
         
 
              get out of the way, get away from the noise, if I possibly 
 
              can.  If I were working on a job, I would not be able to do 
 
              that, and I am positive that I would either be fired or walk 
 
              off the job before the day would be over.  I'm perfectly 
 
              willing to go to work.  I want to go to work, but I feel 
 
              that if I did find a job, it would be at most one day long.
 
         
 
         (Tr. I, pp. 44-45)
 
         
 
              In Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105-106 
 
         (Iowa 1985) the supreme court stares the following concerning the 
 
         burden of proof under the odd-lot doctrine:
 
         
 
                 In most jurisdictions, the odd-lot doctrine involves an 
 
              allocation of the burden of production of evidence that has 
 
              not been addressed in our prior cases.  Professor Larson 
 
              states the general rule as follows:
 
         
 
                      A suggested general-purpose principle on burden 
 
                   of proof in this class of cases would run as 
 
                   follows:  If the evidence of degree of obvious 
 
                   physical impairment, coupled with other facts such 
 
                   as claimant's mental capacity, education, 
 
                   training, or age, places claimant prima facie in 
 
                   the odd-lot category, the burden should be on the 
 
                   employer to show that some kind of suitable work 
 
                   is regularly and continuously available to the 
 
                   claimant.  Certainly in such a case it should not 
 
                   be enough to show that claimant is physically 
 
                   capable of performing light work, and then round 
 
                   out the case for non-compensability by adding a 
 
                   presumption that light work is available.  It is a 
 
                   well-known fact of modern economic life that the 
 

 
         
 
         
 
         
 
         EMSHOFF V. PETROLEUM TRANSPORTATION SERVICES
 
         Page   6
 
         
 
         
 
                   demand for unskilled and semiskilled labor has 
 
                   been rapidly declining with the advent of the age 
 
                   of mechanization and automation, and that the 
 
                   great bulk of the persistent hard-core 
 
                   unemployment of the United States is in these 
 
                   categories.
 
         
 
              2 A. Larson, supra, at 10-164.95 to 10-164.113.
 
         
 
            ...
 
         
 
                 We adopt the burden of proof allocation enunciated in 
 
              Professor Larson's statement of the general rule.
 
         
 
              We emphasize that this rule merely allocates the burden of 
 
              production of evidence.  It is triggered only when the 
 
              worker makes a prima facie case for inclusion in the odd-lot 
 
              category:
 
         
 
         
 
         
 
                      It is normally incumbent upon an injured 
 
                   [worker], at a hearing to determine loss of 
 
                   earning capacity, to demonstrate a reasonable 
 
                   effort to secure employment in the area of ... 
 
                   residence.  Where testimony discloses that a 
 
                   reasonable effort was made, the burden of going 
 
                   forward with evidence to show the availability of 
 
          
 
         
 
         
 
         
 
         
 
         EMSHOFF V. PETROLEUM TRANSPORTATION SERVICES
 
         Page   7
 
         
 
         
 
                   suitable employment is on the employer and 
 
                   carrier.
 
         
 
              Employers Mutual Life Ins. Co. v. Industrial Commissioner, 
 
              25 Ariz.App. 117, 119, 541 P.2d 580, 582 (1975).  The 
 
              evidence allocation is justified on the ground that the 
 
              employer ordinarily is in a better position than the worker 
 
              to determine whether the labor market offers opportunities 
 
              to persons in the odd-lot category.  See Ham v. Chrysler 
 
              Corp., 231 A.2d 258, 262 (Del. 1967).  The overriding reason 
 
              for requiring evidence of employment opportunities is 
 
              because there is no presumption that merely because the 
 
              worker is physically able to do certain work such work is 
 
              available.  See Niles Police Dept. v. Industrial Commission, 
 
              83 Ill.2d 528, 534-35, 48 Ill.Dec. 212, 216, 416 N.E.2d 243, 
 
              246 (1981).
 
         
 
                 We therefore hold that when a worker makes a prima facie 
 
              case of total disability by producing substantial evidence 
 
              that the worker is not employable in the competitive labor 
 
              market, the burden to produce evidence of suitable 
 
              employment shifts to the employer.  If the employer fails to 
 
              produce such evidence and the trier of fact finds the worker 
 
              does fall in the odd-lot category, the worker is entitled to 
 
              a finding of total disability.
 
         
 
         Id. at 105-106.
 
         
 
              It is clear from the preceding language that before the 
 
         burden can shift to the employer to prove that some kind of 
 
         suitable work is regularly and continuously available to the 
 
         claimant, the claimant must demonstrate a reasonable effort to 
 
         secure employment in the area of residence as part of his prima 
 
         facie showing that he is an odd-lot employee.  The claimant has 
 
         not met that burden from the evidence presented.  The only 
 
         indication that claimant may have unsuccessfully applied for any 
 
         employment comes from the questions by his attorney in his 
 
         examination of Anita Howell.  The answers from Howell did not 
 
         assist claimant's cause.
 
         
 
         
 
         
 
         
 
         
 
              As the issue of the degree of claimant's industrial 
 
         disability remains, this case is remanded for a determination of 
 
         the degree of claimant's industrial disability which is 
 
         consistent with this opinion.  Further testimony concerning 
 
         whether claimant is an odd-lot employee shall not be considered.
 
         
 
              The final issue defendants raise concerns the fairness and 
 
         reasonableness of the fee of Dr. Gooding.  Defendants raised this 
 
         issue at the time of the prehearing conference and reasserted it 
 
         at the review-reopening hearing.   Claimant offered no evidence 
 
         on the fairness and reasonableness of Dr. Goodings charges other 
 
         than an itemized account of what the actual charges were.  
 
         Claimant has the burden of establishing that the medical expenses 
 
         were fair and reasonable.  Claimant has not met that burden 
 
         particularly in light of the closeness of association between 
 

 
         
 
         
 
         
 
         EMSHOFF V. PETROLEUM TRANSPORTATION SERVICES
 
         Page   8
 
         
 
         
 
         claimant and Dr. Gooding through claimant's wife.   Therefore, 
 
         this issue is remanded for claimant to present evidence 
 
         concerning the fairness and reasonableness of the fees charged by 
 
         Dr. Gooding.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That this case is remanded for further proceedings 
 
         consistent with this appeal decision.
 
         
 
         
 
              Signed and filed this 31st day of March, 1987.
 
         
 
         
 
         
 
         
 
                                                  ROBERT C. LANDESS
 
                                                  INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 Third Avenue
 
         P.O. Box 1588
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. R. Jeffrey Lewis
 
         Mr. Anthony A. Longnecker
 
         Attorneys at Law
 
         2600 Ruan Center
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1402.40-1402.60-1804-4100
 
                                               Filed March 31, 1987
 
                                               ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         WILLIAM EMSHOFF,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
         PETROLEUM TRANSPORTATION                     File No. 753723
 
         SERVICES,
 
                                                        A P P E A L
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         GREAT WEST CASUALTY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40 - 1402.60 - 1804 - 4100
 
         
 
              Claimant must demonstrate a reasonable effort to secure 
 
         employment in the area of his residence as part of his prima 
 
         facie showing that he is an odd-lot employee.  That burden was 
 
         not satisfied where the only indication that claimant may have 
 
         unsuccessfully applied for any employment comes from the 
 
         questions by his attorney in his examination of vocational 
 
         rehabilitation counselor Anita Howell.
 
         
 
              Defendants raised and preserved the issue of the fairness 
 
         and reasonableness of the fee of R. Schuyler Gooding, M.D., 
 
         throughout this proceeding.  Claimant has the burden of 
 
         establishing that that fee was fair and reasonable and that 
 
         burden was not met by merely presenting an itemized account of 
 
         what the actual charges were.