BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LARRY McMILLEN,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No.  761229
 
         
 
         ROYAL BUICK,                            A R B I T R A T I 0 N
 
         
 
              Employer,                             D E C I S I 0 N
 
         
 
         and
 
         
 
         UNIVERSAL UNDERWRITERS INS. CO.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Larry 
 
         McMillen, claimant, against Royal Buick, employer, and Universal 
 
         Underwriters, insurance carrier, defendants, for benefits as a 
 
         result of an injury which occurred on March 19, 1984.  A hearing 
 
         was held on July 14, 1987 at Council Bluffs, Iowa and the case 
 
         was fully submitted at the close of the hearing.  The record 
 
         consists of the testimony of Larry McMillen (claimant), Sharon 
 
         McMillen (claimant's wife), James T. Rogers (claimant's 
 
         vocational rehabilitation specialist), Ronald J. Eischen 
 
         (defendants vocational rehabilitation specialist), joint exhibits 
 
         one through 46, claimant's exhibit one and defendants' exhibit 
 
         A.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matter.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the claimant sustained an injury on March 19, 1984 
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              That the injury was the cause of some temporary disability 
 
         and also the cause of some permanent disability.
 
         
 
              That the type of permanent disability is industrial 
 
         disability to the body as a whole.
 
         
 
              That the rate of compensation is $234.75 per week.
 
              That claimant's entitlement to medical benefits is no 
 
         longer in dispute.
 
         
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page   2
 
         
 
         
 
              That defendants do not seek credit for any previous 
 
         payment of benefits under an employee nonoccupational group 
 
         health plan.
 
         
 
              That defendants are entitled to a credit for all workers' 
 
         compensation benefits paid prior to the decision in this case 
 
         at the rate of $234.75 per week.
 
         
 
              That there are no bifurcated proceedings.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              What is claimant's entitlement to temporary disability 
 
         benefits during a period of recovery.
 
         
 
              What is claimant's entitlement to permanent disability 
 
         benefits, and more specifically whether claimant is entitled to 
 
         permanent total disability benefits either as an odd lot employee 
 
         or otherwise.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Claimant testified that he was born on January 6, 1936.  He 
 
         was 48 years old at the time of the injury and 51 years old at 
 
         the time of the hearing.  Claimant called attention to the fact 
 
         he was wearing a TENS unit, which he has worn since 1984 to mask 
 
         his pain.  Claimant is a high school graduate.  He also has 
 
         received some college credit for attending General Motors 
 
         courses.  Claimant began working packing groceries in high 
 
         school.  He then began working in automobile dealerships which 
 
         continued on into full-time employment after high school.  Past 
 
         employments include maintenance repair mechanic, parts department 
 
         counterman and manager and automobile dealership general service 
 
         manager.  As a hobby, claimant designs garages and has one of the 
 
         most complete wood working shops in Council Bluffs.  Formerly, he 
 
         played golf, tennis and volleyball prior to this injury which 
 
         occurred on March 19, 1984.  Claimant testified that he has not 
 
         been able to work in his woodworking shop due to this injury.
 
         
 
              Claimant started to work for this employer in late 1982 or 
 
         early 1983 as parts and service manager.  Because of an internal 
 
         dispute claimant stepped down from this job and became an 
 
         automobile salesman.  The sales job did not turn out to be as 
 
         remunerative as he thought it was going to be.  Claimant 
 
         testified that employer wanted him to return to the service 
 
         manager job just before this injury occurred.  This injury has 
 
         prevented him from taking the service manager job (Transcript 
 
         pages 30-32).
 
         
 
              At the time of the injury, on March 19, 1984, claimant was 
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page   3
 
         
 
         
 
         working as an automobile salesman.  There was a lot of snow that 
 
         day.  They were moving cars inside but the cars kept getting 
 
         stuck.  While pushing a car claimant slipped, came down on his 
 
         knee and jammed his back real bad causing severe pain in his 
 
         lower back.
 
         
 
              Claimant testified that Robert M. Cochran, M.D., had 
 
         performed an earlier surgery on his back on October 29, 1982.  
 
         Back then, claimant lost two and one-half to three months from 
 
         work after the surgery and then returned to work without any pain 
 
         or disability or any problems what so ever until the present 
 
         injury.
 
         
 
              After this injury claimant was able to work for about five 
 
         days but then went to see his former surgeon, Dr. Cochran, 
 
         because he felt so terrible.  He stated that the pain was 
 
         unbearable.  Shots did not work and claimant was hospitalized for 
 
         a myelogram, CT scan and a second surgery.  After the second 
 
         surgery claimant had severe pain in his left buttock and hip that 
 
         ran down into his left leg.  Since the last surgery his fourth 
 
         and fifth toes on the left foot are always numb.  The front of 
 
         his right leg is numb from the top of his leg to his knee.  
 
         Claimant testified that he also has bowel and bladder problems.  
 
         At this point in his testimony claimant broke down emotionally.  
 
         A short recess was held for claimant to recover.  Claimant 
 
         testified that he suffered real bad pain in his lower back down 
 
         into his legs.  He has shooting pains into his groin.  When he 
 
         tries to sleep at night, his throat closes off because of the 
 
         tube that they put down his throat at the time of his second 
 
         surgery for this injury.  Claimant demonstrated in the courtroom 
 
         that he could only walk very slowly and very carefully.  He 
 
         stated that when he feels good he can walk about one and one-half 
 
         blocks.  Standing increases his pain.  He can only sleep a couple 
 
         of hours at a time.  He can sit in his own chair at home for 
 
         about one-half hour.   He has to lay down four to five times a 
 
         day.  He does not lift at all.  He is currently taking two pain 
 
         killers which do not kill the pain but only reduce it.
 
         
 
              Claimant testified that he could not work a steady job at 
 
         all because his idea of work is "dedication", that is, working 
 
         eighteen hours a day, six or seven days a week.  Claimant 
 
         admitted that he had never gone out and looked for any work since 
 
         the date of this accident (Tran. p. 48).  Claimant said that he 
 
         did not believe that he could be a dependable employee due to his 
 
         pain.  Ron Eischen, defendants' vocational rehabilitation 
 
         specialist, asked claimant to start back to work a few hours at a 
 
         time.  Claimant told Eischen that he could pick up the phone and 
 
         get a job right now, but did not think that he could do the job, 
 
         and then he would lose his reputation in automobile dealership 
 
         circles.
 
         
 
              Claimant testified that his physical condition has gotten 
 
         worse rather than better since he last saw Eischen approximately 
 
         one and one-half years ago --- much worse.  Claimant added that 
 
         he is getting worse all of the time.  He testified that he has 
 
         gone to pieces since then.  The pain is more severe and goes down 
 
         his leg farther.  Claimant testified that he also talked to 
 
         another vocational rehabilitation specialist retained by his own 
 
         counsel by the name of Jim Rogers.
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page   4
 
         
 
         
 
         
 
              Claimant said that his wife drives the car 99 percent of the 
 
         time.  He has only driven a couple of times since the injury.  
 
         Claimant said that he could not perform the job of security guard 
 
         or self-service gas station attendant.  Claimant testified that 
 
         he has not been able to travel with his wife when she went to 
 
         Germany and Florida to see his grandchildren.  She went without 
 
         him because he cannot travel.
 
         
 
              Claimant admitted that he did not complete the pain clinic 
 
         because he refused to enter the part about a mental acceptance of 
 
         pain.  Instead, he wanted to get rid of his pain which he knew 
 
         they could do, but they were not doing it.  Claimant was under 
 
         the impression that there was a surgical solution to his pain and 
 
         that he was not receiving it.
 
         
 
              Claimant also conceded that before he left the pain clinic 
 
         he could ascend and descend twelve flights of steps even though 
 
         now he can only walk about a block.  Claimant also tacitly 
 
         admitted that the pain center terminated his treatment because he 
 
         would not cooperate with them.  He also admitted that he refused 
 
         to try to work on a part-time basis because he did not think that 
 
         he would dependable.  He added that his reason for refusing to 
 
         work was because he could not see a doctor who would get rid of 
 
         his pain (Tran. p. 59).
 
         
 
              Claimant testified that he had not seen Dr. Cochran for over 
 
         a year.  He stated that he uses a TENS unit, not because a doctor 
 
         has prescribed it, but rather because it works and relieves his 
 
         pain.
 
         
 
              Claimant acknowledged that he was receiving about $1,300.00 
 
         to $1,350.00 per month in tax free benefits from a combination of 
 
         workers' compensation benefits and income disability benefits 
 
         from a private insurance policy.  He further testified that 
 
         before the injury his income was approximately $1,000.00 to 
 
         $1,100.00 dollars per month (Tran. pp. 63, 68 & 69).  Claimant 
 
         admitted that he made one vacation trip to Florida with his wife 
 
         since the injury but that his activities were quite limited after 
 
         he arrived.
 
         
 
              Claimant testified that he hoped to be able to work again 
 
         someday, but he thought he was totally disabled at the time of 
 
         the hearing.
 
         
 
              Claimant was asked if he would work with doctors and 
 
         vocational rehabilitation specialists toward returning to active 
 
         and gainful employment again.  Claimant indicated that he would 
 
         not do so unless and until he got rid of his pain.
 
         
 
              When claimant finished his testimony, his counsel requested 
 
         permission for claimant to leave the court room and go home 
 
         because claimant wasn't going to be able to last the day.  
 
         Permission was granted.
 
         
 
              Sharon McMillen, claimant's wife of 25 years, testified that 
 
         she has been employed for 22 years and earns $30,000 per year.  
 
         She described her husband as an active individual prior to this 
 
         injury.  Now, he can do very little.  They used to walk two miles 
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page   5
 
         
 
         
 
         a day, but since he became worse, she now has to help him home if 
 
         they try to go around the block.  She testified that claimant's 
 
         daily activities include back exercises, he walks up and down the 
 
         driveway and puts the clothes into the washer and dryer.  She 
 
         corroborated that his pain keeps him from sleeping at night.  She 
 
         also confirmed that his first back surgery in 1982 did not 
 
         interrupt his life-style.  She affirmed that claimant's condition 
 
         has deteriorated in the last year or so.  She added that she has 
 
         to do almost everything alone while claimant stays home by 
 
         himself a majority of the time.
 
         
 
              At the close of his wife's testimony, claimant's counsel 
 
         again requested permission for claimant to leave the hearing to 
 
         go home because he was in intractable, excruciating pain.  
 
         Permission was again granted.
 
         
 
              James T. Rogers testified that he is the owner and operator 
 
         of his own company as a professional rehabilitation counselor.  
 
         He interviewed claimant and examined claimant's medical and 
 
         employment history.  He determined that claimant was motivated to 
 
         return to work.  Rogers testified that he did not believe 
 
         claimant could return to work as a car salesman or perform what 
 
         is defined as light work because he cannot do walking, standing 
 
         or getting into and out of cars.  He did not feel claimant can be 
 
         a salesman and be around customers because he is incontinent.  He 
 
         did not think claimant was capable of performing full time, 
 
         gainful employment, eight hours a day, five days a week, 50 weeks 
 
         a year because of the severity of his pain and his functional 
 
         restrictions.
 
         
 
              Rogers testified that he did not know if claimant's bowel 
 
         and bladder incontinence was related to this injury.  Rogers 
 
         admitted that he was incorrect by reporting that Dr. McKinney 
 
         said that claimant was unemployable due to his pain, except in 
 
         the most trivial pursuits, because Dr. McKinney never made such a 
 
         statement.  Rogers agreed that a client who refused to engage in 
 
         work hardening until he was 100 percent pain free would be a very 
 
         difficult person to help.  Rogers granted that he may have 
 
         overlooked the report of the physical therapist who said that 
 
         claimant refused to try to work until he was pain free, but he 
 
         did not think that this was significant.  Rogers acknowledged 
 
         that claimant's complaints of severe pain were subjective and not 
 
         supported by objective medical evidence or an anatomical 
 
         explanation.  Rogers agreed that no doctor told claimant that he 
 
         could not work at all.  Rogers also admitted that he did not give 
 
         claimant any psychological tests to see if claimant's subjective 
 
         complaints were due to secondary financial gain motives although 
 
         such tests do exist and are available to use.
 
         
 
              Ronald J. Eischen testified that he is a professional 
 
         rehabilitation consultant and the proprietor of his own firm.  He 
 
         saw claimant several times and had examined basically the same 
 
         medical and employment data that Rogers had examined.  He 
 
         participated in the pain clinic experience with claimant.  He 
 
         said that claimant cooperated with the program up to a certain 
 
         point, that is the point when it was time to start back to work 
 
         maybe as little as one hour at a time, which is described as work 
 
         hardening.  Rogers described that the program is designed to 
 
         gradually restore an employee to full employment.  He said that 
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page   6
 
         
 
         
 
         claimant refused to participate in the work hardening portion of 
 
         the program because he was not completely free of pain.  Eischen 
 
         said that claimant's position was that as soon as he had no pain 
 
         at all, he would go out and get his own job.  The goal of the 
 
         pain center is to teach claimant to function at the highest 
 
         possible level while still dealing with active pain.
 
         
 
              Eischen testified that claimant's ability to climb twelve 
 
         flights of steps and to perform all of his physical exercises did 
 
         not match up with claimant's complaints that he could barely walk 
 
         up and down his driveway.  Eischen testified that he was hired 
 
         because a previous vocational rehabilitation specialist was not 
 
         able to arrive at a good working relationship with claimant.  
 
         After claimant refused to participate in the work hardening 
 
         program, the treatment at the pain center ceased because there 
 
         was nothing more to offer if claimant was not going to 
 
         participate in the program.  Eischen stated that his professional 
 
         involvement in the case ended at that time too.
 
         
 
              Eischen testified that claimant was rehabilitatable if 
 
         claimant would have participated in the pain program at the 
 
         University of Nebraska Medical Center.  By dropping out of the 
 
         program, claimant voluntarily extended the nature of his 
 
         disability.  The witness said that there are a number of sales 
 
         jobs that claimant could perform within Dr. McKinney's 
 
         restrictions.  Eischen said that claimant could be a parts 
 
         counter clerk or a service writer in a garage.  Claimant's sales 
 
         background is a transferable skill.  Irrespective of whether 
 
         claimant's bladder and bowel problems are work related or not, 
 
         claimant can be trained to work with these problems without 
 
         embarrassment.  Such persons can be successfully placed in 
 
         employment.  Eischen added that he first learned of these bowel 
 
         and bladder problems from claimant's attorney one and one-half 
 
         years after the surgery in 1986.  These problems were not 
 
         documented in any of the medical evidence.
 
         
 
              Eischen said that claimant could be returned to meaningful 
 
         and gainful employment.  He said that claimant could perform his 
 
         old automobile sales job if he would cooperate.  He said that 
 
         claimant was not permanently and totally disabled because 
 
         claimant was employable full time.
 
         
 
              Eischen granted that work hardening was not successful for 
 
         every person.  He said that he believed claimant did have pain; 
 
         he did not know how severe it was; but what claimant was saying 
 
         and doing were incongruous.  He granted that claimant now walks 
 
         with a limp which he did not do previously.  Eischen conceded 
 
         that pain is a distraction and makes it difficult to concentrate 
 
         while trying to work.  Nevertheless, claimant was functioning in 
 
         the pain program until he decided not to cooperate with it.  This 
 
         occurred at the point in time where claimant was asked to return 
 
         to work within the limits of his ability.
 
         
 
              Rogers testified in rebuttal, that in his opinion, claimant 
 
         could not perform the job of auto parts counter clerk or service 
 
         writer.  Rogers based his opinion on the Dictionary of 
 
         Occupational Titles (DOT).  Eischen testified that he also 
 
         followed the DOT but that he did not believe the DOT was the 
 
         ultimate end and final authority on what a given person can or 
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page   7
 
         
 
         
 
         cannot do.
 
         
 
              Eischen said that a vocational rehabilitation consultant did 
 
         not determine disability.  He added that he determines 
 
         employability.  Rogers said that as a vocational rehabilitation 
 
         consultant he was able to make a determination of total 
 
         disability because he made this decision several times when he 
 
         was employed as a vocational rehabilitation consultant for the 
 
         state of Iowa.
 
         
 
               Rogers testified that he rejected Dr. Morrison's opinion 
 
         that claimant could return to work because Dr. Morrison's opinion 
 
         was not consistent with Rogers' own information and experience in 
 
         this case.  Rogers granted that no doctor told claimant that he 
 
         could not or should not participate in the work hardening 
 
         program.  Rogers knew of nothing in the record that would make 
 
         claimant's failure to participate in the work hardening program 
 
         reasonable, other than claimant's own subjective complaint of 
 
         pain.
 
         
 
              The following is a brief summary of the medical evidence. 
 
         Claimant saw Dr. Cochran, an orthopedic surgeon at Methodist 
 
         Hospital in Omaha, on March 23, 1984.  Claimant's admitting 
 
         diagnosis was as follows.
 
         
 
              Lumbar strain.
 
              Possible ruptured lumbar disc.
 
              History of emphysema x 9-10 years.
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page   8
 
         
 
         
 
              Congenital hemophilia requiring coagulants on any surgical 
 
              procedures.
 
              Status post laminectomy in October, 1982.
 
         
 
         [Ex. 46(2)]
 
         
 
              When claimant was discharged on April 30, 1984, Dr. 
 
         Cochran's diagnosis was recurrent lumbar disc injury (Ex. 45).
 
         
 
              The record shows that claimant returned to work from April 
 
         2, 1984 to June 20, 1984 [Exs. 38(2) & 43(l)].
 
         
 
              Claimant was hospitalized again for recurrence of his lumbar 
 
         low back pain on June 20, 1984 [Ex. 43(l)].  Claimant complained 
 
         of numbness and tingling in the left leg into the left lateral 
 
         two toes.  A myelogram showed a disc fragment at L-5, S-1.  
 
         Surgery was performed on June 26, 1984 and the extruded disc 
 
         fragment was removed.  Claimant was discharged on July 2, 1984 
 
         (Ex. 41).
 
         
 
              Dr. Cochran said that the protruded intervertebral disc at 
 
         L-5 was caused by pushing the car in March of 1984 (Ex. 40).  
 
         Later in 1984, Dr. Cochran's notes show that claimant continued 
 
         to have back pain, this time on the right after the surgery, and 
 
         he also suffered from depression [Ex. 38(4)].  On March 19, 1985 
 
         claimant completed back school, wore a TENS unit and performed 
 
         exercises twice a day (Ex. 37).
 
         
 
              Claimant was readmitted to Methodist Hospital on April 23, 
 
         1985 for another myelogram (Exs. 35 & 36).  Charles H. Waters, 
 
         III, M.D., an orthopedic surgeon, was asked to give a second 
 
         opinion.  Dr. Waters said on April 25, 1985 that x-rays and the 
 
         myelogram showed a left lateral defect of fairly small size at 
 
         L-5, S-1 that this was probably post-surgical epideral scar 
 
         changes which were secondary to contraction of the disc area.  
 
         The right side looked clear.  Dr. Waters explained to the 
 
         patient, Dr. Cochran and Jack Lewis, M.D., claimant's personal 
 
         physician that there was nothing that a third disc surgery would 
 
         benefit.  Dr. Waters added that the patient's absence of relief 
 
         in a back brace made fusion surgery undesirable because it was 
 
         unlikely to be successful (Exs. 32-34).
 
         
 
              Dr. Cochran said that this hospitalization and myelogram 
 
         showed no evidence of arachnoiditis, spinal stenosis or a new 
 
         herniation.  He did not know what was causing this severe 
 
         disabling pain.  Dr. Cochran sent claimant to see John C Goldner, 
 
         M.D., a neurologist.
 
         
 
              Claimant saw Dr. Goldner on June 14, 1985.  Dr. Goldner 
 
         mentioned claimant's prior back problems in 1971 and 1982 on the 
 
         left side and commented that claimant did return to work after 
 
         these problems (Ex. 19 & 26-29).  Dr. Goldner made these 
 
         findings.
 
         
 
                 It was my impression on June 14, 1985, that Mr. 
 
              McMillen had musculoskeletal low back pain with 
 
              probable residual right L3 or L4 radicular sensory 
 
              symptoms.  An EMG and nerve conduction study was done 
 
              at the Nebraska Methodist Hospital on June 18, 1985.  
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page   9
 
         
 
         
 
              This was entirely normal.  I discussed these results 
 
              with Mr. McMillen and reported them to Dr. Cochran.  I 
 
              told them both that unfortunately I had no 
 
              recommendations relative to further treatment.  I 
 
              believe he will have chronic musculoskeletal low back 
 
              problems and that he has a 20% permanent partial 
 
              impairment based on limitation of movement, pain, and 
 
              the two previous lumbar laminectomies that have been 
 
              done.  His neurological findings now are different than 
 
              they were in 1971 in that his current findings suggest 
 
              a right radicular problem where as his 1971 findings 
 
              suggested a left radicular problem.  He will certainly 
 
              be limited in the work that he can do from the 
 
              standpoint of his chronic low back pain.  He will be 
 
              limited relative to lifting and to the amount of 
 
              activity he can do in sitting or standing for any 
 
              length of time.  I would recommend that you contact Dr. 
 
              Cochran relative to his opinion as to the details of 
 
              what Mr. McMillen can and cannot do since Dr. Cochran 
 
              is Mr. McMillen's orthopedic surgeon.  We would be glad 
 
              to discuss this further with you at any time.
 
         
 
         (Ex. 19)
 
         
 
              An independent medical examination was performed by Michael 
 
         J. Morrison, M.D., on July 16, 1985 for employer.  He reviewed 
 
         that claimant had been seen by Dr. Cochran, Dr. Waters and Dr. 
 
         Goldner.  A CT scan, myelogram, EMG and nerve conduction study 
 
         were all normal.  Treatment had been medication, physical therapy 
 
         and brace immobilization which aggravated claimant's symptoms.  
 
         X-rays taken by Dr. Cochran were unremarkable except for 
 
         claimant's previous back surgery.  Dr. Morrison recommended 
 
         certain exercises along with bicycle riding and swimming which 
 
         should return claimant to work in four to six weeks as a car 
 
         salesman (Ex. 24).
 
         
 
              Dr. Morrison referred claimant to Ron Eischen and the pain 
 
         management center at the University of Nebraska Medical Center in 
 
         August of 1985 where claimant was treated by Giuseppe Siracusano, 
 
         a registered physical therapist.  Siracusano reported that 
 
         claimant did well until it was suggested that he work.  The 
 
         registered physical therapist also reported that claimant was 
 
         looking for a surgical solution to his pain problem.  Siracusano 
 
         reported as follows to Dr. Cochran on November 20, 1985.
 
         
 
                 Mr. McMillen has made significant improvements in 
 
              his overall flexibility and exercise endurance.  He has 
 
              progressed to walking three times per day and climbing 
 
              [sic] 12 flights of stairs twice daily.  It was at this 
 
              point that a progressive return to a work environment 
 
              was suggested.  This suggestion has raised many 
 
              concerns which Mr. Mcmillen has openly expressed.  As 
 
              discussions of his progressive return to work became 
 
              more specific, he has experienced increased 
 
              difficulties following through with his endurance and 
 
              flexibility exercises.  There has also been an increase 
 
              in the frequency of his pain behaviors and complaints.
 
                 It was suggested by Mr. Eischen that there
 
              should be a conference between Mr. and Mrs. McMillen, 
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  10
 
         
 
         
 
              Mr. Eischen, and myself so that the issues surrounding 
 
              a progressive return to work be openly discussed.  Mr. 
 
              McMillen's return to work has been clouded by his 
 
              feeling that there is something diagnostically or 
 
              surgically that can be done to take away his back pain.  
 
              Mr. McMillen has reported that he is unwilling to 
 
              progress until these issues are resolved.  Mr. Eischen 
 
              said he wanted to discuss this case with you.
 
         
 
         (Ex. 22)
 
         
 
              F. M. Skultety, M.D., a neurosurgeon at the University of 
 
         Nebraska Medical Center, said on October 7, 1985 that there was 
 
         no indication for surgery.
 
         
 
                 At the present moment this appears to be a 
 
              musculoskeletal problem with chronic back pain.  There 
 
              is no indication for surgery.  I think physical therapy 
 
              is the only appropriate treatment and would authorize 
 
              it for a reasonable period of time as long as the 
 
              patient continues to improve.  On the basis of the 
 
              comments he made about not being able to return to work 
 
              he may actually be better treated in the full pain unit 
 
              program, but this was not discussed.
 
         
 
         (Ex. 23).
 
         
 
              On November 22, 1985, Raymond J. Breed, M.S., R.P.T.,
 
         director of physical and occupational therapy at the University 
 
         of Nebraska, recommended that claimant try part-time if not 
 
         full-time work activity.  Breed said:
 
         
 
                 The structural evaluation demonstrates that the 
 
              patient has gained good flexibility in all areas and 
 
              the patient feels that he has made good progress, but 
 
              feels that he is still not 100%.  Mr. McMillen [sic] 
 
              still has complaints of discomfort in his low back, 
 
              especially when he has to stand in one place for any 
 
              length of time.  Mr. McMillen [sic] also describes some 
 
              unusual symptoms associated with some physical 
 
              activities, which I cannot explain.
 
         
 
                 It is my opinion that the client appears physically 
 
              prepared to resume at least part-time, if not full-time 
 
              work activity.  I think it would also be appropriate 
 
              that Mr. McMillen [sic] continue to participate with 
 
              the Pain Management Unit, as well as obtained Pain 
 
              Management counseling.
 
         
 
         (Ex. 21)
 
         
 
              The rehabilitation treatment at the university hospital 
 
         terminated because they felt claimant was ready to return to work 
 
         and claimant did not.  Claimant refused to work until he received 
 
         complete pain relief.  Siracusano, of the Pain Management Center, 
 
         wrote the following report to Dr. Skultety of the neurosurgery 
 
         department on January 10, 1986.
 
         
 
                 Mr. McMillen had been making slow and steady 
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  11
 
         
 
         
 
              improvement until October.  At this time it seemed as 
 
              if he could return to work.  The concept of a 
 
              work-hardening program was introduced to Mr. McMillen 
 
              by both the physical therapist and Mr. Eischen.  After 
 
              that time Mr. McMillen's progress in physical 
 
              functioning slowed significantly.  Additionally, there 
 
              were exercises that he failed to do.
 
                 Communications with Mr. Eischen and Mr. McMillen 
 
              increased some understanding that Mr. McMillen did not 
 
              feel ready to return to work.  There was an increase in 
 
              Mr. McMillen's desire to confer with more doctors in 
 
              order to find the cause of his low back pain.  During 
 
              the time the Pain Management Center was closed for the 
 
              Christmas Holidays, Mr. McMillen had enlisted the 
 
              advice of an attorney and had seen several more 
 
              doctors.  Some of the doctors he had consulted 
 
              prescribed medications to help him sleep at night.
 
                 The last physical therapy visit was on January 10, 
 
              1986.  At this time there  was an increase in pain 
 
              behavior and pain talk.  Mr. McMillen was much more 
 
              convinced that a return to work was not right for him 
 
              until he had complete pain relief.  It appears that a 
 
              physical therapy program designed to help Mr. McMillen 
 
              return to work will be fruitless at this time.  Mr. 
 
              McMillen was seen for a total of 16 physical therapy 
 
              treatments.   A similar report will be sent to Mr. Ron 
 
              Eischen.
 
         
 
         (Ex. 17)
 
         
 
              On January 9, 1985 claimant was examined by Lynell W. 
 
         Klassen, M.D., chief of the section of rheumatology and 
 
         immunology of the Department of Internal Medicine at the 
 
         University of Nebraska, for chronic low back pain exacerbated by 
 
         physical activity.  Dr. Klassen said that claimant gave a history 
 
         of episodic back pain since age 20.  Dr. Klassen brought to light 
 
         for the first time in a medical report that claimant complained 
 
         of bowel and bladder problems; however, Dr. Klassen did not 
 
         associate these with the injury.  Dr. Klassen reported
 
         
 
                 Two complaints spontaneously given to me, but not 
 
              otherwise noted in his past record, involves bowel and 
 
              bladder incontinence.  He reports that over the past 
 
              six months he has had increasing difficulty with 
 
              episodes of loss of sphincter tone and urinary 
 
              incontinence.  The bowel incontinence can occur any 
 
              time, night or day.  The bladder incontinence usually 
 
              occurs after he goes from a sitting to standing 
 
              position.  He reports having an uncontrolled bowel 
 
              movement several times a week.
 
         
 
         (Ex. 18)
 
         
 
              Dr. Klassen concluded as follows "My impression is that Mr. 
 
         McMillen has a primary musculoskeletal/mechanical etiology for 
 
         his low back pain.  I can find no evidence of an inflammatory 
 
         spondylitis or sacroilitis." (Ex. 18).  Dr. Klassen added that he 
 
         had nothing specific to add to the therapeutic approaches that 
 
         have been tried in the past (Ex. 18).
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  12
 
         
 
         
 
         
 
              On January 22, 1986 Dr. Morrison concluded that claimant had 
 
         reached maximum medical improvement and that no further 
 
         diagnostic testing was in order.  He said that claimant could do 
 
         light work or salesman type of work that would allow him to sit 
 
         or get up at his leisure (Ex. 15).  On February 6, 1986 Dr. 
 
         Morrison said claimant's permanent partial impairment would be 
 
         from 10-15 percent of the whole body because of the necessity of 
 
         having a lumbar laminectomy with some persistent residual pain 
 
         (Ex. 14).  Dr. Morrison said claimant could do light work, 
 
         lifting a maximum of 20 pounds occasionally and frequently 
 
         lifting or carrying 10 pounds (Ex. 16).
 
         
 
              Even though Dr. Morrison recommended no further diagnostic 
 
         testing he nevertheless, did order a magnetic resonance imaging 
 
         scan (MRI) on March 18, 1986 which suggested a focal protrusion 
 
         of disc material midline at the L-5, S-1 level.  Robert H. 
 
         McIntire, Jr., M.D., reported:
 
         
 
                 These multiple images demonstrate the vertebral 
 
              bodies to appear normal.  Prominent degenerative disc 
 
              disease is noted at the L5-Sl level.   The remainder of 
 
              the discs are thought to show reasonably normal signal 
 
              intensity.  There is thought to. be a focal protrusion 
 
              of the disc material midline at the L5-Sl level.  This 
 
              appears to extend slightly to the right and to the 
 
              left.  No evidence of focal protrusion or herniation is 
 
              noted at any other level.  No intradural defects are 
 
     
 
         
 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  13
 
         
 
         
 
              identified.
 
         
 
         (Ex. 13)
 
         
 
              This report prompted Dr. Cochran on April 18, 1986 to ask 
 
         Dr. Morrison to refer claimant to one more evaluator (Ex. 12).  
 
         On April 28, 1986 claimant was referred to Daniel L. McKinney, 
 
         M.D., a neurosurgeon (Ex. 11).
 
         
 
              Dr. McKinney saw claimant on May 21, 1986.  Dr. McKinney 
 
         reported that claimant was comfortable while reclining.  He can 
 
         only stand 15 minutes or sit 45 minutes without pain.  He thought 
 
         claimant could probably work as an automobile salesman because 
 
         that would allow him to change positions frequently (Ex. 10).  
 
         Claimant continued to have pain and Dr. McKinney hospitalized 
 
         claimant for another myelogram on July 1, 1986 (Ex. 9).  Dr. 
 
         McKinney suspected a degenerative lumbar intervertebral disc (Ex. 
 
         8).  The myelogram disclosed assymetry of the nerve roots and the 
 
         caudal sac at L-5, S-1.  He could not say with certainty that a 
 
         degenerative disc was present, but it was a possibility (Ex. 7).
 
         
 
              On August 14, 1986 Dr. McKinney wrote to claimant's counsel 
 
         that the slight irregularity could be residual scarring secondary 
 
         to the two previous surgeries at that level.  He felt that the 
 
         chance of surgery helping claimant at this time was too slim to 
 
         recommend it.  He believed claimant had a 15 percent permanent 
 
         partial disability to the body as whole.  He added that he did 
 
         not think that claimant was employable because he had developed 
 
         chronic pain syndrome and will need rehabilitation in this area 
 
         before he is employable (Ex. 6).
 
         
 
              On August 22, 1986 Dr. Cochran wrote to claimant's  counsel 
 
         that he last saw claimant on April 14, 1986.  He had no 
 
         explanation for claimant's continued pain.  He did not believe 
 
         claimant was a candidate for any further surgery (Ex. 5).
 
         
 
              On September 8, 1986 Dr. McKinney wrote to defendants' 
 
         counsel that claimant's limitations were no prolonged periods of 
 
         standing, sitting or frequent bending or lifting.  He said he had 
 
         no anatomic or physiologic explanation for claimant's loss of 
 
         bowel or bladder control or difficulty with sexual function.  In 
 
         fact, claimant had not previously mentioned sexual dysfunction 
 
         (Ex. 4).
 
         
 
              On September 16, 1986 Dr. McKinney made his last report.
 
         
 
                 I would anticipate that Mr. Larry McMillen could 
 
              probably perform the duties of a car salesman without 
 
              causing damage to his lumbar spine.  This type of duty, 
 
              as I understand it, would allow him to change positions 
 
              frequently and I believe he could probably do this 
 
              provided he did not have to do any lifting of weights 
 
              greater than 10 pounds or have to push automobiles on 
 
              or off a showroom floor.  His ability to work would of 
 
              course be dependent upon Mr. McMillen's overall comfort 
 
              and tolerance of his pain.
 
         
 
         Ex. 2)
 
         
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  14
 
         
 
         
 
              On March 18, 1987 Dr. Cochran, who never rated claimant for 
 
         this injury, nevertheless, told defendants' counsel that he 
 
         believed that claimant would have a ten percent permanent 
 
         impairment of the body as a whole as a result of the earlier L-5, 
 
         S-1 surgery which occurred on October 29, 1982 (Ex. 1).
 
         
 
              Rogers made a written report on September 9, 1986 to 
 
         claimant's counsel that claimant had gotten much worse physically 
 
         since he had last seen his doctors.  Rogers believed that 
 
         claimant was not employable due to his pain (Ex. 3).
 
         
 
              In his pretrial disposition on March 13, 1986, claimant 
 
         testified that he had applied for social security disability 
 
         benefits (Ex. 1, p. 20).  Also, he gave a detailed description of 
 
         his pain complaints at that time to his back, buttocks, legs, 
 
         toes, throat, groin, lack of bowel control, urinary incontinence 
 
         and sexual dysfunction.  Claimant attributed all of these 
 
         problems to the injury of March 19, 1984 and the surgery of June 
 
         26, 1984 (Ex. 1, pp. 21-28).
 
         
 
              Claimant also admitted that the combination of workers' 
 
         compensation and income disability benefits was more than he was 
 
         earning when he was working.  He denied that he was financially 
 
         better off because when he was working he had a car furnished and 
 
         group insurance benefits and bonuses (Ex. 1, p. 42 & 43).
 
         
 
              Claimant could not say that any of his many doctors have 
 
         ever told him not to work (Ex. 1, pp. 43 & 44).  He conceded
 
         that he never asked any of the doctors to go back to work (Ex. 1, 
 
         p. 52).  Claimant testified that he was not under a doctors care 
 
         at the time of the deposition on March 13, 1986 (Ex. 1, p. 45).
 
         
 
              Claimant testified in his deposition that he needs a TENS 
 
         unit all of the time even though it has not been medically 
 
         prescribed by a doctor.  His whole day is in his house, where he 
 
         can alternate standing, sitting and laying down.  He is forced to 
 
         lay down four or five times a day from five minutes to one-half 
 
         hour until the pain goes away.  His sleep habits at night are 
 
         very irregular.  He only sleeps two hours at any one time.  
 
         Claimant testified that he could not sell cars because he has to 
 
         lie down.  Claimant could not think of any job that he is able to 
 
         do (Ex. 1, pp. 52-58).
 
         
 
              This hearing was scheduled to last two and one-half hours 
 
         according to the estimate of each attorney given to the 
 
         prehearing deputy at the time of the prehearing conference.  
 
         Claimant's attorney estimated it would take two hours to present 
 
         his case.  Defendants' attorney estimated that it would take 
 
         one-half hour to present his case.  The hearing actually consumed 
 
         six hours due to the extensive examination and re-examination of 
 
         the two expert witnesses.  The examination of these two experts 
 
         included direct, cross, re-direct, re-cross, further re-direct, 
 
         and further re-cross, rebuttal and sur-rebuttal.  Due to the 
 
         extensive and intensive examination of these two expert 
 
         witnesses, the hearing deputy ordered a transcript of the record 
 
         and ordered defendants to pay the initial transcript costs until 
 
         the decision assessed the costs of the case.
 
         
 
              The court reporter reported to the industrial commissioner 
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  15
 
         
 
         
 
         that defendants' attorney refused to pay for the transcript 
 
         because (1) the deputy did not have the authority to order a 
 
         transcript and apportion the costs and (2) the court reporter's 
 
         fee was excessive and exorbitant.  Official notice is taken of 
 
         the correspondence in the industrial commissioner's file from the 
 
         court reporter to the industrial commissioner which includes 
 
         copies of the correspondence of defendants counsel with the court 
 
         reporter.  Iowa Administrative Procedure Act 17A.14(4).
 
         
 
              Defendants have paid claimant $19,962.85 in temporary 
 
         disability benefits and $18,031.00 in permanent disability 
 
         benefits and $21,497.33 in medical benefits prior to hearing.  
 
         Permanent disability benefits were continuing to claimant at the 
 
         time of the hearing (Defendants I Ex. A) .
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 18, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         25
 
         
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  16
 
         
 
         
 
              Claimant is entitled to healing period benefits from the 
 
         date he was first forced to leave work and see Dr. Cochran on 
 
         March 23, 1984 [Ex. 38(l)] until Dr. Cochran returned claimant to 
 
         work on April 2, 1984 [Ex. 38(2)].  Claimant is entitled to 
 
         healing period benefits again for the period of time from June 
 
         20, 1984, when he was hospitalized by Dr. Cochran for surgery 
 
         [Ex. 43(l)], until Dr. Morrison stated that claimant had reached 
 
         maximum medical improvement on January 22, 1986 (Ex. 15) [Iowa 
 
         Code section 85.34(l)].
 
         
 
              As for industrial disability claimant was 48 years old at 
 
         the time of the injury.  He should have been at the peak of his 
 
         earning career but he had suffered two reverses prior to this 
 
         injury.  His long term employer of 20 years went out of business 
 
         and he had to find a new job with this employer.  In this new 
 
         job, with this employer, an internal dispute arose and claimant 
 
         was asked to step down from service manager and become an 
 
         automobile salesman.  Claimant testified that selling cars did 
 
         not turn out to be as lucrative as he thought it was going to 
 
         be.
 
         
 
              Claimant's formal education is a high school education, but 
 
         his many experiences and positions in automobile dealerships 
 
         provided him with a very good practical, social and business 
 
         education.
 
         
 
              Claimant was awarded a permanent functional impairment 
 
         rating of ten to 15 percent for this injury by Dr. Morrison 
 
         because of the necessity of a lumbar laminectomy with some 
 
         persistent residual pain (Ex. 14).  Dr. McKinney assessed a 15 
 
         percent permanent functional impairment rating as a result of 
 
         this injury in 1984 (Ex. 6).  Dr. Goldner awarded a 20 percent 
 
         permanent functional impairment rating which included both 
 
         laminectomies [Ex. 19(2)].  Dr. Cochran estimated that the 
 
         permanent functional impairment from the first laminectomy, which 
 
         occurred in 1982, would be ten percent (Ex. 1).  Subtracting Dr. 
 
         Cochran's ten percent for the first surgery from Dr. Goldner's 20 
 
         percent for both surgeries leaves a theoretical ten percent 
 
         permanent functional impairment rating for this injury.  Dr. 
 
         Cochran did not express a permanent functional impairment rating 
 
         for this injury.  A ten to 15 percent permanent functional 
 
         impairment rating for a lumbar laminectomy is not an unusually 
 
         high impairment rating.
 
         
 
              The operative phrase in industrial disability is loss of 
 
         earning capacity.  Ver Steegh v. Rolscreen Co., IV Iowa 
 
         Industrial Commissioner Report 377 (1984).  Claimant contends 
 
         that he cannot return to his old job of selling cars which was 
 
         the job he was performing at the time of this injury.  His 
 
         testimony is corroborated by Rogers, his own vocational 
 
         rehabilitation specialist.  Claimant did not sustain the burden 
 
         of proof by a preponderance of the evidence on this point.  Dr. 
 
         Morrison, Dr. McKinney and Eischen believed and stated that 
 
         claimant could return to selling cars because there is no lifting 
 
         and claimant can alternate standing and sitting.  Eischen also 
 
         stated that selling was a transferable skill and that claimant 
 
         could also sell other products.  In addition, Eischen mentioned 
 
         certain minimum wage employments such as security guard and 
 
         self-service gas station attendant that claimant could perform.
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  17
 
         
 
         
 
         
 
              None of the many doctors who examined claimant testified 
 
         that claimant was unable to work or that he could not perform his 
 
         old job of automobile salesman.  None of the many physicians who 
 
         examined claimant testified that claimant was permanently and 
 
         totally disabled or even suggested it.
 
         
 
              The weight of the evidence is that claimant could return to 
 
         his former employment of selling automobiles.
 
         
 
              With respect to whether claimant is permanently and totally 
 
         disabled, claimant testified that he could have a job simply by 
 
         making one telephone call.  Yet, he never did make that one 
 
         telephone call nor, did he make any other effort to obtain 
 
         employment of any kind.
 
         
 
              Claimant's insistance on being pain free before attempting 
 
         to work is not a privilege afforded to injured workers by the 
 
         workers' compensation law.  Claimant's insistance that he be able 
 
         to work 18 hours per day, seven days a week is not a requirement 
 
         of the workers' compensation law.  Claimant's insistance that a 
 
         surgical procedure existed that could make him pain free was not 
 
         reasonable in light of the evidence presented at the hearing.  
 
         Dr. Cochran, Dr. Waters and Dr. McKinney, all three competent 
 
         surgeons, examined claimant, tested claimant, weighed and 
 
         considered the possibility of additional surgery and each one of 
 
         them recommended against it.  Dr. Morrison, Dr. Goldner and Dr. 
 
         Klassen all examined claimant and studied his history and stated 
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  18
 
         
 
         
 
         that there was nothing further that they could offer in the way 
 
         of treatment of any kind that would benefit claimant.  Objective 
 
         testing by way of x-rays, CT scans, myelograms and magnetic 
 
         resonance imaging showed only some possible epideral scarring at 
 
         L-5, S-1 which was probably due to his previous surgeries and did 
 
         not justify any further or additional surgery.  None of these 
 
         doctors defined any explanation for claimant's continued symptoms 
 
         of disabling pain other than this mild epideral scarring which 
 
         was believed to be the result of his two prior surgeries at the 
 
         level of L-5, S-1.
 
         
 
              Back complaints were not new to claimant.  Dr. Klassen 
 
         reported that claimant has had episodic back pain since age 20 
 
         (Ex. 18).  Claimant admitted in his testimony that he had 
 
         suffered periodic back problems from time to time.  Dr. Goldner 
 
         reported that he saw claimant in 1971 for left lumbar 
 
         radiculopathy [Ex. 29(l)].
 
         
 
              Claimant had very little or no motivation to return to work 
 
         from a financial point of view.  Claimant testified that when he 
 
         was working he earned between $1,000.00 and $1,100.00 dollars per 
 
         month.  He also testified that the combination of his workers' 
 
         compensation benefits and the benefits from his privately owned 
 
         income disability policy total $1,300.00 to $1,350.00 per month. 
 
          Claimant testified that both of these items were tax free 
 
         income.  As defense counsel pointed out claimant would actually 
 
         lose money if he returned to work.  In addition, claimant's wife 
 
         earns $30,000.00 in full-time employment and she has been 
 
         employed for 22 years.  Claimant countered that he had the use of 
 
         a car and certain employee benefits and bonuses when he worked.  
 
         Be that as it may, there is a very strong disincentive to work if 
 
         you can obtain $200.00 to $350.00 more per month tax free by not 
 
         working, especially if your back hurts all of the time and you 
 
         have gotten out of the habit of going to work everyday.  
 
         Claimant's motivation toward returning to work is further 
 
         revealed by his application for social security disability 
 
         benefits.
 
         
 
              Particularly damaging to claimant's case was the testimony 
 
         of Siracusano on November 25, 1985 that when a progressive return 
 
         to work was planned, claimant demonstrated a decrease in 
 
         tolerance for the endurance and flexibility exercises and an 
 
         increase in the frequency of his pain behaviors and complaints, 
 
         even though he had been climbing 12 flights of steps per day and 
 
         had been walking three times a day (Ex. 22).  Siracusano 
 
         testified that when the concept of work hardening was introduced, 
 
         claimant's progress slowed, he wanted to see more doctors, he 
 
         retained an attorney and he did not want to return to work until 
 
         he had complete pain relief (Ex. 17).
 
         
 
              Breed thought that claimant could return to work but 
 
         indicated that claimant thought he should be 100 percent well 
 
         before returning to work (Ex. 21).
 
         
 
              Therefore, it would appear that claimant could return to car 
 
         sales or service writer in the automobile dealership business; he 
 
         could perform other sales jobs; and that other less desirable 
 
         minimum wage types of jobs could be performed within claimant's 
 
         limitations if claimant would have tried to work; however, he 
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  19
 
         
 
         
 
         declined to try any employment of any kind.
 
         
 
              Claimant has not sustained the burden of proof by a 
 
         preponderance of the evidence that he is permanently and totally 
 
         disabled.  Diederich, 219 Iowa 587, 258 N.W. 899.  Nor can it be 
 
         said that claimant is permanently and totally disabled under the 
 
         odd lot doctrine as defined by the Iowa Supreme Court in the case 
 
         of Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985).  
 
         Claimant has not demonstrated a bona fide effort to return to 
 
         gainful employment in the area of his residence.  Therefore, he 
 
         has failed to make a prima face case of permanent total 
 
         disability under the odd lot doctrine.  Emshoff v. Petroleum 
 
         Trans.  Services, (Appeal Decision March 31, 1987).  Claimant has 
 
         no anatomical, organic or physical abnormalities that have been 
 
         identified by any of the medical practitioners which make a prima 
 
         face case for total disability.
 
         
 
              An employee making a claim for industrial disability will 
 
         benefit by a showing of some attempt to find work.  Hild v. 
 
         Natkin & Co., I Iowa Industrial Commissioner Report 144 (Appeal 
 
         Decision 1981); Beintema v. Sioux City Engineering Co., II Iowa 
 
         Industrial Commissioner Report 24 (1981); Cory v. Northeastern 
 
         States Portland Cement Co., Thirty-third Biennial Report of the 
 
         Industrial Commissioner 104 (1976).
 
              
 
              Since claimant has made no showing of any effort to find any 
 
         kind of employment, then there is no showing of what claimant can 
 
         do within the boundaries of his disability and limitations of 
 
         persistent pain.  Schofield v Iowa Beef Processors, Inc., II Iowa 
 
         Industrial Commissioner Report 334, 336 (1981).
 
         
 
              Defendant's serious offer of vocational rehabilitation 
 
         weighs in their behalf.  Schelle v. HyGrade Food Products, 
 
         Thirty-third Biennial Report of the Industrial Commissioner 121 
 
         (1977).  Claimant's failure to cooperate with vocational 
 
         rehabilitation is a factor to consider when determining the 
 
         amount of his industrial disability.  McKelvey v. Dubuque Packing 
 
         Co., Thirty-third Biennial Report of the Industrial Commissioner 
 
         227 (1976); Rapp v. Eagle Mills, Inc., Thirty-fourth Biennial 
 
         Report of the Industrial Commissioner 264 (1979); Curtis v. Swift 
 
         Independent Packing, IV Iowa Industrial Commissioner Report 88, 
 
         (1984).
 
         
 
              Claimant is not fully corroborated on the subject of pain.  
 
         No one has suggested that claimant is not suffering pain but the 
 
         degree of pain in not subject to independent verification.  Pain 
 
         that is not substantiated by clinical findings is no substitute 
 
         for impairment.  Waller v. Chamberlain Mfg, II Iowa Industrial 
 
         Commissioner Report 419, 425 (1981).  After extensive examination 
 
         and testing, the doctors could only pinpoint that claimant's pain 
 
         at the level of L-5, S-1 was possibly the result of epideral 
 
         scarring from the prior two surgeries.  None of the doctors had 
 
         any further treatment modalities to offer claimant.  Three 
 
         doctors recommended against any further surgery.  Claimant 
 
         himself had not sought any further medical treatment for over a 
 
         year.
 
         
 
              Claimant testified that he suffered breathing problems due 
 
         to an injury to his throat at the time of the surgery on June 26, 
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  20
 
         
 
         
 
         1984 for this injury.  He also claimed to suffer bowel and 
 
         bladder incontinence.  These problems were not mentioned in the 
 
         medical evidence until claimant saw Dr. Klassen on January 9, 
 
         1986, more than a year and one-half after the accident.  Claimant 
 
         has also alleged that he has sexual dysfunction in the nature of 
 
         impotency due to pain from this injury.  There is absolutely no 
 
         medical evidence or even a suggestion that the bowel, bladder or 
 
         sexual problems were caused by, or related to, this injury in any 
 
         way for any reason.
 
         
 
              Therefore, based upon all of the foregoing factors and all 
 
         of the factors that go into a determination of industrial 
 
         disability, it is decided that claimant has sustained a 35 
 
         percent industrial disability to the body as a whole.
 
         
 
              As far as a deputy's power or authority to order a 
 
         transcript Iowa Code section 86.19 provides as follows.
 
         
 
              The industrial commissioner, or a deputy commissioner,
 
              may appoint or may direct a party to furnish at the 
 
              party's initial expense a certified shorthand reporter 
 
              to be present and report, or to furnish mechanical 
 
              means to record, and if necessary transcribe 
 
              proceedings of any contested case under this chapter, 
 
              chapters 85 and 85A and fix the reasonable amount of 
 
              compensation for such service.  The charges shall be 
 
              taxed as costs and the party initially paying the 
 
              expense for the presence or transcription shall be 
 
              reimbursed.  The reporter shall faithfully and 
 
              accurately report the proceedings.
 
         
 
              The refusal of defendants' counsel to pay for the transcript 
 
         as he was ordered to do at the hearing was unreasonable and 
 
         without legal justification.  There is no evidence that the 
 
         charges of the court reporter are excessive or exorbitant.  
 
         Furthermore, this particular court reporter was selected by 
 
         defendants' counsel himself as a matter of his own free choice of 
 
         court reporter.  Moreover, the same court reporter reported and 
 
         transcribed claimant's deposition taken on March 13, 1986 and 
 
         there is no evidence of any dispute about excessive or exorbitant 
 
         charges for the deposition (Claimant's ex. 1).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was off work due this injury from March 23, 
 
         1984 to April 2, 1984 and again from June 20, 1984 to January 22, 
 
         1986.
 
         
 
              That claimant's permanent functional impairment has been 
 
         rated at approximately ten to 15 percent of the body as a whole 
 
         as a result of this injury
 
         
 
              That claimant was 48 years old at the time of the injury and 
 
         had a high school education.
 
         
 
              That no doctor testified that claimant should not return to 
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  21
 
         
 
         
 
         his old job as a automobile salesman.
 
         
 
              That Dr. Morrison and Dr. McKinney testified that claimant 
 
         could return to his old job as an automobile salesman.
 
         
 
              That vocational rehabilitation specialist Eischen testified 
 
         that claimant could return to his old job as an automobile 
 
         salesman.
 
         
 
              That two registered physical therapists said that claimant 
 
         could return to work to either full or part-time employment but 
 
         that claimant declined to try to return to work on any terms.
 
         
 
              That claimant sustained a 35 percent industrial disability 
 
         to the body as a whole.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made.
 
         
 
              That claimant is entitled to healing period benefits for the 
 
         two periods of time he was off work defined in the findings of 
 
         fact [Iowa Code section 85.34(1)] .
 
         
 
              That claimant is entitled to 175 weeks of permanent partial 
 
         disability benefits as industrial disability to the body as a 
 
         whole. [Iowa Code section 85.34(2)u].
 
         
 
              That defendants are legally obligated to provide the 
 
         industrial commissioner with a transcript and to pay the 
 
         reporter's fees for the transcript as ordered at the hearing by 
 
         the deputy industrial commissioner (Iowa Code section 86.19).
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant one point five seven one 
 
         (1.571) weeks of healing period benefits for the period from 
 
         March 23, 1984 to April 2, 1984 and another eighty-three (83) 
 
         weeks of healing period benefits for the period from June 20, 
 
         1984 to January 22, 1986, a total of eighty-four point five seven 
 
         one (84.571) weeks of healing period benefits at the rate of two 
 
         hundred thirty-four and 75/100 dollars ($234.75) per week in the 
 
         total amount of nineteen thousand eight hundred fifty three and 
 
         04/100 dollars ($19,853.04).
 
         
 
              That defendants pay to claimant one hundred seventy-five 
 
         (175) weeks of permanent partial benefits at the rate of two 
 
         hundred thirty-four and 75/100 dollars ($234.75) per week in the 
 
         total amount of forty-one thousand eighty-one and 25/100 dollars 
 
         ($41,081.25) commencing on January 22, 1986.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  22
 
         
 
         
 
         
 
              That defendants are entitled to a credit for all benefits 
 
         paid prior to hearing.
 
         
 
              That defendants pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33 and in particular, 
 
         pay the court reporter for the transcript of the hearing as 
 
         ordered by the deputy at the time of the hearing.
 
         
 
              That defendants file activity reports as requested by this 
 
         agency pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 5th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon Gallner
 
         Attorney at Law
 
         803 Third Avenue
 
         Council Bluffs, Iowa 51501
 
         
 

 
         
 
         
 
         
 
         McMILLEN V. ROYAL BUICK
 
         Page  23
 
         
 
         
 
         Mr. Ronald E. Frank
 
         Mr. Robert A. Wichser
 
         Attorneys at Law
 
         200 Century Professional Plaza
 
         7000 Spring Street
 
         Omaha, Nebraska 68106
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1402.40; 1802; 1803;
 
                                                  4100; 2907
 
                                                  Filed April 5, 1988
 
                                                  WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY McMILLEN,
 
         
 
              Claimant,
 
         
 
         vs                                           File No.  761229
 
         
 
         ROYAL BUICK,                              A R B I T R A T I 0 N
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         UNIVERSAL UNDERWRITERS INS. CO.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1402.40; 1802; 1803; 4100
 
         
 
              Claimant strained his degenerative back resulting in a 
 
         lumbar laminectomy.  Physicians awarded ten to 15 percent 
 
         permanent functional impairment.  Two doctors and one vocational 
 
         rehabilitation specialist said claimant could return to his old 
 
         job of selling cars.  Claimant refused to cooperate with work 
 
         hardening at the pain center and refused to try to do any kind of 
 
         work until he was entirely pain free.  Claimant was receiving 
 
         $200 to $350 more from workers' compensation and income 
 
         disability benefits than he was earning when he was injured.  
 
         Claimant's condition progressively deteriorated until he was 
 
         barely functional at all.  One and one-half years after the 
 
         injury he asserted that the injury was the cause of bowel and 
 
         bladder incontinence and also sexual dysfunction but there was 
 
         absolutely no medical evidence to support his claim.  Claimant 
 
         awarded 35 percent industrial disability.  Claimant was not 
 
         permanent total or odd-lot permanent total.
 
         
 
         2907
 
         
 
              The hearing was scheduled to last two and one-half hours but 
 
         lasted six hours due to the extensive and intensive interrogation 
 
         and examination of the opposing vocational rehabilitation expert 
 
         witnesses.  Deputy ordered a transcript and ordered defendants' 
 
         attorney to initially pay for it.  Defendants' attorney refused 
 
         to pay.   His refusal was found to be unreasonable and without 
 
                                                
 
                                                         
 
         legal justification in view of deputy's authority contained in 
 
         Iowa Code section 86.19.
 
 
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          LARRY McMILLAN,
 
         
 
               Claimant,
 
         
 
          VS.                                         File No. 761229
 
         
 
          ROYAL BUICK,                                R E V I E W -
 
         
 
               Employer,                              R E O P E N I N G 
 
         
 
          and                                         D E C I S I O N
 
         
 
          UNIVERSAL UNDERWRITERS GROUP,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE  CASE
 
         
 
              This is a proceeding in review-reopening upon claimant's 
 
         petition filed May 11, 1988.  Claimant suffered an injury to his 
 
         back on March 19, 1984, while pushing a motor vehicle in the 
 
         course of his employment.  After he filed a petition seeking 
 
         arbitration, a hearing was held on July 14, 1987, and a decision 
 
         filed on April 5, 1988.  The arbitration decision found that 
 
         claimant was not an odd-lot employee, although an extruded disc 
 
         fragment at L5,Sl was removed on June 26, 1984, and that he had 
 
         sustained a permanent partial disability of 35 percent for 
 
         industrial purposes.  Claimant was also awarded certain healing 
 
         period benefits.
 
         
 
              Hearing on the petition for review-reopening was thereafter 
 
         held in Council Bluffs, Iowa, on June 26, 1989.  The additional 
 
         record consisted of claimant's testimony and joint exhibits 3 
 
         through 55, inclusive (objections were sustained as to joint 
 
         exhibits 1 and 2).
 
         
 
                                      ISSUES
 
         
 
              The sole issues presented for determination are whether 
 
         claimant has experienced a change of condition since the prior 
 
         arbitration hearing and, if so, the extent of his current 
 
         industrial disability, including whether claimant is totally 
 
         disabled under the odd-lot theory or otherwise.
 
         
 
         
 
         McMILLAN v. ROYAL BUICK
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                 FINDINGS OF FACT
 
         
 
              The undersigned deputy, having heard the testimony and 
 
         considered all of the evidence, finds:
 
         
 
              The arbitration decision noted that claimant was 48 years 
 
         old at the time of injury and had a high school education.  
 
         Claimant had numerous experiences and positions in automobile 
 
         dealerships, primarily in parts and service departments.  
 
         However, he was working in sales at the time of his injury after 
 
         an internal dispute arose and he was asked to step down from his 
 
         position as service manager.
 
         
 
              The arbitration decision points out that claimant was rated 
 
         as having sustained a 10-15 percent functional impairment by 
 
         several physicians (claimant also had a previous lumbar 
 
         laminectomy, leading John C. Goldner, M.D., to assess a 20 
 
         percent functional impairment including both surgical 
 
         procedures).  It was further noted that claimant contended he 
 
         could not return to his old job of selling cars, but did not 
 
         sustain his burden of proof by a preponderance of evidence on 
 
         that point, as Michael J. Morrison, M.D., Daniel L. McKinney, 
 
         M.D., and a vocational rehabilitation expert employed by 
 
         defendants stated that claimant could return to that task because 
 
         it did not involve lifting and he could alternate standing and 
 
         sitting.  Claimant's vocational rehabilitation specialist 
 
         believed otherwise.  The decision noted that none of the many 
 
         doctors who examined claimant believed he was unable to work at 
 
         his old job of automobile salesperson or that he was totally 
 
         disabled. It was specifically found that claimant could return to 
 
         his former employment as a salesperson.  It was further noted 
 
         that claimant could not avail himself of the odd-lot theory of 
 
         recovery because he had not sought work.
 
         
 
              The arbitration deputy believed that claimant was 
 
         unreasonable in insisting upon being pain-free before attempting 
 
         to return to work and that he had little or no motivation to 
 
         return to work because a combination of workers, compensation and 
 
         private disability benefits totalled more per month than he had 
 
         been earning as a salesperson.
 
         
 
              The arbitration decision also strongly criticized claimant's 
 
         lack of motivation and pointed out that a registered physical 
 
         therapist testified to claimant demonstrating a decrease in 
 
         tolerance for endurance and flexibility exercises and an increase 
 
         in the frequency of pain behaviors and complaints when the 
 
         therapist began planning a progressive return to work through a 
 
         work hardening program.  Claimant was found to not be fully
 
         
 
         
 
         McMILLAN v. ROYAL BUICK 
 
         Page 3
 
         
 
         
 
         corroborated as to the extent of his pain complaints, which were 
 
         not subject to independent verification by clinical findings.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              At hearing, claimant appeared to this observer to be shaky, 
 
         tired-looking, and exhibited a flat affect.  He was frequently 
 
         unresponsive to questioning.  Claimant demonstrated his walking 
 
         ability at hearing.  He walks in a halting manner, holds his left 
 
         hip, and keeps his head down.  He was wearing a TENS unit to mask 
 
         pain and indicated that he now wears the unit almost always, 
 
         whereas he wore it only occasionally at the time of the 
 
         arbitration hearing.
 
         
 
              Claimant considers his condition to be worse than at the 
 
         time of the arbitration hearing.  His back is more painful and he 
 
         finds his activities severely limited.  For example, he can walk 
 
         only perhaps one-half block, and then not on uneven ground.  He 
 
         can sleep only perhaps two hours per night.  He suffers increased 
 
         numbness of the legs and now suffers from depression and memory 
 
         lapses (which may in part be attributable to prescribed mood 
 
         altering medications).  Claimant described his pain as "terrible" 
 
         on a good day, such as the date of hearing, but "unbearable" on a 
 
         bad day.  Claimant described his average day as made up of such 
 
         minimal activities as wishing for the onset of night, walking on 
 
         his driveway, alternately standing, sitting and lying in the sun, 
 
         and occasionally watching baseball games on television (he 
 
         becomes emotionally overwhelmed when watching more dramatic 
 
         television fare).  At the time of the arbitration hearing, 
 
         claimant was able to do some laundry and watch more television.
 
         
 
              Claimant described some minimal efforts to seek employment 
 
         since the arbitration hearing.  He has contacted several 
 
         automobile dealerships, even though he believes.he is unable to 
 
         return to automobile selling because of his inability to work on 
 
         a daily basis, get in and out of automobiles, or to present 
 
         himself in an appropriately upbeat frame of mind for a 
 
         salesperson.  Claimant also worked for approximately three hours 
 
         answering the telephones for an animal laboratory known as 
 
         Amatec, but found himself unable to perform the work because of 
 
         numbness afflicting his leg, so he left.  However, on 
 
         cross-examination, claimant admitted that-his attempts to obtain 
 
         work occurred within the two or three months immediately prior to 
 
         the hearing (which was scheduled five months before it was held).  
 
         Claimant noted that defendants have authorized only Dr. McKinney 
 
         as a treating physician and that Dr. McKinney has advised him 
 
         that he is unable to work.  Although Dr. McKinney has suggested 
 
         to him that he seek psychological care, claimant apparently did 
 
         not do so until
 
         
 
         
 
         McMILLAN v. ROYAL BUICK 
 
         Page 4
 
         
 
         
 
         shortly before hearing (the report of a psychologist, exhibit 2, 
 
         was excluded from evidence as untimely).  However, claimant 
 
         agreed on cross-examination that he had made no specific requests 
 
         for a different treating physician since being turned down in 
 
         1986 and agreed that Dr. McKinney did not make any specific 
 
         referral for psychological or psychiatric evaluation.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has seen Dr. McKinney on only about two occasions 
 
         since the earlier hearing and has not had medical treatment 
 
         otherwise.
 
         
 
              During the course of hearing, claimant frequently stood and 
 
         required brief recesses for both physical and emotional reasons.  
 
         He agreed on cross-examination that this was also true at the 
 
         arbitration hearing, and that he had left that hearing early 
 
         because of what his attorney described as intractable and 
 
         excruciating pain.  Nonetheless, the undersigned finds claimant 
 
         to have been a credible witness and does not believe that he 
 
         intentionally magnified his symptoms at hearing.
 
         
 
              Daniel McKinney, M.D., a board-certified neurosurgeon, 
 
         testified by deposition on June 7, 1989.  Since the previous 
 
         hearing, Dr. McKinney saw claimant on May 6, 1988 and March 27, 
 
         1989.  Dr. McKinney wrote claimant's counsel on November 29, 1988 
 
         to note that examination showed no change over claimant's 
 
         previous status.  He did not believe claimant's condition had 
 
         actually deteriorated and continued to rate his impairment at 15 
 
         percent of the body as a whole.
 
         
 
              However, by the time of his deposition, Dr. McKinney's 
 
         opinion had changed.  He now believes that claimant's persistent 
 
         pain and depression (which he specifically found to be caused by 
 
         pain and symptoms secondary to the work injury) now prevent 
 
         claimant from being gainfully employed for the foreseeable 
 
         future.
 
         
 
              Dr. McKinney's clinical findings were unchanged with respect 
 
         to claimant's physical impairment.  However, he increased his 
 
         impairment rating from 15 percent to 25 percent based on the 
 
         persistence of symptoms and increased .depression and believed 
 
         there had been a material and substantial change in claimant's 
 
         condition since 1986 in that claimant had failed to improve with 
 
         respect to his chronic pain as the majority of similarly situated 
 
         individuals do.  Whereas Dr. McKinney believed that claimant 
 
         could probably perform the duties of a car salesman in 1986, he 
 
         no longer believed that possible, although such work would not 
 
         actually cause structural damage to the spine.
 
         
 
         
 
         
 
         McMILLAN v. ROYAL BUICK
 
         Page 5
 
         
 
         
 
              Dr. McKinney felt that the majority of claimant's depressive 
 
         symptoms relate to chronic complaints of back pain and leg pain, 
 
         but agreed on cross-examination that disappointment emanating 
 
         from the previous arbitration decision could be a factor, 
 
         although not quantifiable.  He did refer to claimant's 
 
         psychological difficulties as "legitimate."
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                CONCLUSIONS OF LAW
 
         
 
              Pursuant to Iowa Code section 86.14(2), in a proceeding to 
 
         reopen an award for payments, inquiry is to be made into whether 
 
         or not the condition of the employee warrants an end to, 
 
         diminishment of, or increase of compensation previously awarded.  
 
         A change in condition must be shown to justify changing the 
 
         original award.  Henderson v. Iles, 250 Iowa 787, 96 N.W.2d 321 
 
         (1959).  It is not proper to merely redetermine the condition of 
 
         the employee as adjudicated by the former award.  Stice v. 
 
         Consol. Indus. Coal Co., 228 Iowa 1031, 291 N.W.2d 452 (1940).
 
         
 
              A mere difference of opinion of experts or competent 
 
         observers as to the degree of disability arising from the 
 
         original injury is insufficient to justify a different 
 
         determination on a petition for review-reopening; there must be 
 
         substantial evidence of a worsening of the condition not 
 
         contemplated at the time of the first award.  Bousfield v. 
 
         Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
         change in condition may be found where claimant has failed to 
 
         improve to the extent initially anticipated, Meyers v. 
 
         Holiday Inn of Cedar Falls, Iowa, 272 N.W.2d 24 (Iowa App. 1978).  
 
         Additionally, in cases not involving scheduled members, a change 
 
         in earning capacity subsequent to the original award which is 
 
         proximately caused by the original injury may constitute a change 
 
         in condition.  Blacksmith v. All-American, Inc., 290 N.W.2d 348 
 
         (Iowa 1980).
 
         
 
              The evidence in this case establishes that claimant has 
 
         experienced a change in condition since the earlier award within 
 
         the meaning of the cited authorities.  At the time of the 
 
         arbitration hearing, no physician had opined that claimant was 
 
         unable to return to work selling automobiles (although this job, 
 
         itself, was fairly recent; most of claimant's experience was in 
 
         parts and service, which one would expect to be more physically 
 
         demanding).  Now, the authorized and treating physician has 
 
         opined that claimant is unable to return to that work.  
 
         Claimant's impairment rating has been increased to 25 percent by 
 
         the treating physician.  Claimant credibly reports more severe 
 
         and debilitating pain.  Claimant has developed depressive 
 
         symptomatology which is causally related to the work injury
 
         
 
         
 
         
 
         McMILLAN v. ROYAL BUICK 
 
         Page 6
 
         
 
         
 
         (although Dr. McKinney concedes that he has limited expertise in 
 
         this field, he is a licensed and practicing board-certified 
 
         physician and his opinion stands unrefuted).  Psychological 
 
         impairments caused by a work injury have long been deemed 
 
         compensable.  Deaver v. Armstrong Rubber Co., 170 N.W.2d 455 
 
         (Iowa 1969).  Although claimant's motivation leaves something to 
 
         be desired, it is understandable that a state of high motivation 
 
         is difficult to maintain in the face of intractable lumbar pain, 
 
         especially when complicated by long-term depression and major 
 
         losses in the general ability to enjoy and participate in life.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Even though it is a fair inference that most of claimant's 
 
         job seeking activities were precipitated by the upcoming hearing 
 
         date, he has been unsuccessful in several attempts to find work 
 
         in his field of expertise.  Claimant attempted to work in a 
 
         position so sedentary as that of telemarketer, but failed to last 
 
         even half a day because numbness in his legs developed.  In any 
 
         event, defendants have made no effort to assist claimant's 
 
         rehabilitation since the arbitration hearing.
 
         
 
              It is therefore held that claimant has established the 
 
         requisite change in condition to support a modified award in 
 
         review-reopening.  Accordingly, it is appropriate to consider his 
 
         current industrial disability.
 
         
 
              In Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899 
 
         (1935), the Iowa court found that claimant suffered a compression 
 
         fracture and was 59 years of age, had worked as a streetcar 
 
         motorman for 30 years, and had little education.  The court noted 
 
         that to suppose such a person could become a stenographer, 
 
         lawyer, clerk or bookkeeper was to suppose the impossible, for a 
 
         man of his age with no education was not capable of securing or 
 
         filling any such position.  From the standpoint of his ability to 
 
         go back to work to earn a living for himself and his family, 
 
         Diederich's disability was a total disability.
 
         
 
              Claimant in this case has a high school diploma.  Claimant 
 
         was 48 years old at the time of injury, 5 years before the 
 
         hearing in this case.  Essentially all his work experience for 33 
 
         years was in the automotive industry in parts and service 
 
         departments and, recently, as a salesperson.  Because his 
 
         intractable pain has not abated, the treating physician, a 
 
         board-certified neurosurgeon, has opined that claimant is now 
 
         unable to return to that work.  Even though claimant's recently 
 
         developed skills as a salesperson may be transferrable, his 
 
         inability to work a full day or to remain in one posture for any 
 
         length of time renders him unsuited for other such work.  
 
         Claimant's
 
         
 
         
 
         
 
         McMILLAN v. ROYAL BUICK 
 
         Page 7
 
         
 
         
 
         depression, also caused by the work injury, further disables him 
 
         from competitive employment.  Claimant has now been off work 
 
         since January, 1986, and given his history of two back surgeries 
 
         with continued disability, he surely is of greatly lessened 
 
         attractiveness as a potential employee, even if he were able to 
 
         return to work.
 
         
 
              Considering all these factors in particular and the record 
 
         in general, it is held that claimant has established that he is 
 
         now permanently and totally disabled without need of recourse to 
 
         the odd-lot theory of recovery adopted in Guyton v. Irving Jensen 
 
         Co., 373 N.W.2d 101 (Iowa 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was awarded permanent partial disability benefits 
 
         in the arbitration decision.  The most appropriate date for 
 
         conversion to permanent total disability is March 27, 1989, when 
 
         claimant was last seen by Dr. McKinney, whose opinion has been 
 
         given great weight in this decision.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant permanent total 
 
         disability benefits at the stipulated rate from March 27, 1989, 
 
         during such time as claimant remains totally disabled.
 
         
 
              Defendants shall be entitled to credit for all weekly 
 
         benefit payments made pursuant to the arbitration decision 
 
         herein.
 
         
 
              The costs of this action shall be assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 16th day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID RASEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         McMILLAN v. ROYAL BUICK
 
         Page 8
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
         803 Third Avenue
 
         P.O. Box 1588
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. Ronald E. Frank
 
         Mr. Robert A. Wichser
 
         Attorneys at Law
 
         200 Century Professional Plaza
 
         7000 Spring Street
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Omaha, Nebraska 68106
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1402.40, 1804
 
                                         Filed May 16, 1990
 
                                         DAVID RASEY
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
          LARRY McMILIAN,
 
         
 
               Claimant,
 
         
 
          VS.                                         File No. 761229
 
         
 
          ROYAL BUICK,                                 R E V I E W -
 
         
 
               Employer,                              R E O P E N I N G
 
         
 
          and                                           D E C I S I O N
 
         
 
          UNIVERSAL UNDERWRITERS GROUP,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40, 1804
 
         
 
              In review-reopening proceeding, claimant was found to have 
 
         experienced a change in condition in that his back injury had 
 
         failed to improve to the extent expected by the treating surgeon.  
 
         He was awarded permanent total disability.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SUSAN M. SMITH,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 761319
 
         ARMSTRONG RUBBER COMPANY,
 
         
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Susan M. 
 
         Smith against Armstrong Tire & Rubber Company, employer, and The 
 
         Travelers Insurance Company, insurance carrier.  The case was 
 
         heard and fully submitted on June 23, 1988 at Des Moines, Iowa.  
 
         The record in the proceeding consists of testimony from Susan M. 
 
         Smith and claimant's exhibits 1 and 2.  Official Notice was taken 
 
         of the AMA Guides to the Evaluation of Permanent Impairment.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties at the time of hearing 
 
         are determination of claimant's entitlement to compensation for 
 
         any permanent partial disability and determination of claimant's 
 
         entitlement to payment for expenses of an independent medical 
 
         examination under the provisions of Iowa Code section 85.39.  It 
 
         was stipulated that the claimant had sustained an injury which 
 
         arose out of and in the course of her employment and that she had 
 
         been paid all compensation for temporary total disability or 
 
         healing period which was due as a result of the injury.  All 
 
         other pertinent matters in the case were established by 
 
         stipulation of the parties.
 
         
 
                               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 ail 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.
 
         
 
              Susan M. Smith is a 37-year-old, married lady who commenced 
 
         employment with Armstrong on November 17, 1980.  She left that 
 
         employment on December 31, 1987.  By virtue of a retraining 
 
         program, she has recently started a new job working for major 
 
         Appliance Parts.
 
         
 
              Smith testified that she had enjoyed excellent health, in 
 
         general, and in particular with regard to her hands and arms 
 
         before commencing work at Armstrong.  Smith testified that, at 
 
         Armstrong, she worked primarily as a first-stage tire builder, a 
 
         position which requires extensive use of the hands and arms.
 
         
 
              Claimant testified that she developed pain and numbness in 
 
         her hands and arms and sought medical care.  She eventually had 
 
         surgery performed by Scott B. Neff, D.O., in the nature of carpal 
 
         tunnel releases on both the right and left hands.  Following a 
 
         relatively normal period of recovery, she returned to employment 
 
         at Armstrong, performing the same work as she had performed prior 
 
         to obtaining treatment for the carpal tunnel condition.
 
         
 
              Claimant testified that, when she returned to work, her 
 
         wrist was quite tender and stiff and that she continued to have 
 
         difficulty with dropping things.  She related that, at times, she 
 
         had her hands and wrists wrapped in order to alleviate her 
 
         symptoms.
 
         
 
              Claimant testified that, currently, she experiences numbness 
 
         and tingling in her little finger and ring finger and that she 
 
         experiences sharp pains in her elbows.  She related that it 
 
         affects both extremities, but is primarily in the right.  
 
         Claimant also stated that her grip is weak and that she has 
 
         difficulty manipulating small objects.  She related having 
 
         problems performing activities such as using scissors and opening 
 
         jars.  She stated that she does not have any limitation of the 
 
         range of motion of her hands.
 
         
 
               Scott B. Neff, D.O., was the orthopaedic surgeon who 
 
         treated claimant's carpal tunnel syndrome.  In a report dated 
 
         January 22, 1986, issued to claimant's attorney, Dr. Neff 
 
         stated:
 
         
 
              Based on what we have been able to prove at this time, 
 
              I do not think that she has any documentable [sic] 
 
              impairment of any significant nature.
 
         
 
         (Exhibit 1, page 26).
 
         
 
              Claimant was also thereafter evaluated by Jerome G. Bashara, 
 
         M.D.  Dr. Bashara found that claimant lacked five degrees of full 
 
         dorsiflexion of both wrists and approximately ten degrees of 
 
         palmar flexion of both wrists.  His neurological examination was 
 
         normal.  Dr. Bashara assigned claimant a three-percent permanent 
 
         impairment rating of each upper extremity due to the carpal 
 
                                                
 
                                                         
 
         tunnel syndrome (exhibit 1, page 32).
 
         
 
              Claimant was most recently evaluated by Joseph M. Doro, 
 
         D.O., a physician with Neurological Associates of Des Moines, 
 
         P.C.  Dr. Doro noted patchy decrease in pinprick distally in both 
 
         hands which involved the median, ulnar and radial distributions. 
 
          He found no other abnormalities (exhibit 1, page 34).  Dr. Doro 
 
         indicated that claimant has recovered from her carpal tunnel 
 
         syndrome and has no any residual permanent partial disability 
 
         from it (exhibit 1, page 35).  In view of Dr. DoroOs tests and 
 
         claimant's complaints, the injury likely involves the ulnar 
 
         nerve.
 
         
 
              Claimant incurred an expense in the amount of $175.00 for 
 
         the evaluation by Dr. Bashara (exhibit 1, page 29; exhibit 2).  
 
         The charge from Dr. Bashara in the amount of $375.00 shown on 
 
         exhibit 2 is unexplained in the record.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              This case involved no specific incident of acute trauma.  
 
         Carpal tunnel syndrome in this case, and frequently in other 
 
         cases, is a cumulative trauma type of injury.  Accordingly, the 
 
         date of injury in this case is determined to be March 27, 1984, 
 
         the date of disablement.  McKeever Custom Cabinets v. Smith, 379 
 
         N.W.2d 366 (Iowa 1985).
 
         
 
              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).
 
         
 
              Where an injury is limited to a scheduled member, the loss 
 
         is measured functionally, not industrially.  Graves v. Eagle 
 
         Iron Works, 331 N.W.2d ll6 (Iowa 1983).  Where two members are 
 
         affected by the same injury, any permanent partial disability is 
 
         compensated under the provisions of Iowa Code section 
 
         85.34(2)(s). Simbro v. DeLong's Sportswear, 332 N.W.2d 886 (Iowa 
 
         1983).  "Loss of means loss of use.  Moses v. National Union Coal 
 
         Mining Co., 194 Iowa 819, 184 N.W. 746 (1921).  The burden of 
 
         proof of the existence and extent of permanent partial disability 
 
         rests upon the claimant.
 
         
 
              Dr. Doro clearly and concisely states that, in his opinion, 
 
         claimant has no permanent partial disability.  Dr. Neff's 
 
         statement speaks of no documentable impairment of any significant 
 
         nature.  Dr. Bashara assigns a three-percent impairment to each 
 
         upper extremity.  Claimant complains of residual weakness, 
 
         numbness and tingling.  Claimant's appearance and demeanor were 
 
         observed as she testified and she is found to be a fully credible 
 
         witness with regard to the nature and existence of her residual 
 
         complaints.  A review of the exhibits in the record shows that 
 
                                                
 
                                                         
 
         she has voiced those same complaints fairly consistently since 
 
         the surgery was performed.  Dr. Bashara seems to base his 
 
         impairment rating upon loss of range of motion, although neither 
 
         of the other two physicians has confirmed the existence of any 
 
         loss of range of motion.  While claimant herself denied having 
 
         any limitation of motion, it cannot be ascertained whether or not 
 
         she would be able to distinguish a small loss from her own casual 
 
         observation.  Claimant's complaints are corroborated by the 
 
         findings of sensory abnormalities as were made by Dr. Doro in his 
 
         physical examination (exhibit 1, page 34).  Regardless Of 
 
         whatever ratings are in the record, the claimant does have some 
 
         loss of her ability to use her hands due to numbness, tingling 
 
         and some loss of grip strength when her current condition is 
 
         compared to her condition as it existed prior to the time she 
 
         commenced employment with Armstrong Rubber Company.
 
         
 
              In the instant case, none of the physicians have indicated 
 
         what guidelines or standards were used in reaching their 
 
         impairment ratings.  Division of Industrial Services Rule 343-2.4 
 
         makes the AMA guides a permissible standard, but it does not make 
 
         them the exclusive standard.  Lauhoif Grain v. McIntosh, 395 
 
         N.W.2d 834 (Iowa 1986); Soukup v. Shores Co., 222 Iowa 272, 268 
 
         N.W. 598 (1936).
 
         
 
              Chapter 1 of the AMA guides provides ratings which are based 
 
                   
 
                                                         
 
         primarily upon range of motion while chapter 2 provides 
 
         impairment ratings based upon neurological abnormalities.  A 
 
         review of chapter 2, in particular tables 4 and 5 found at pages 
 
         73 and 74, if applied to claimant's case, supports a finding of 
 
         minimal impairment.  Accordingly, it is therefore determined that 
 
         claimant has a one-percent permanent partial disability of the 
 
         left hand and a two-percent permanent partial disability of the 
 
         right hand.  This finding is based upon claimant's credibility as 
 
         determined at hearing and as corroborated by the findings of 
 
         sensory abnormalities by Dr. Doro and the consistency with which 
 
         she has related her complaints.  This finding is not considered 
 
         to be inconsistent with the opinion expressed by Dr. Neff, since 
 
         a one- or two-percent impairment is not particularly 
 
         significant.
 
         
 
              When the impairments are converted into a disability or 
 
         impairment of the body as a whole, a one-percent impairment of 
 
         the hand is equal to a one-percent impairment of the upper 
 
         extremity and a two-percent impairment of the hand is equal to a 
 
         two-percent impairment of the upper extremity (AMA guides, table 
 
         9, page 10).   A one-percent or two-percent impairment of the 
 
         upper extremity is equivalent to a one-percent impairment of the 
 
         whole person (table 20, page 23).  When applied to the combined 
 
         values chart, the resuit is a two-percent impairment of the whole 
 
         person.  Under section 85.34(2)(s), this entitles claimant to 
 
         receive ten weeks of compensation for permanent partial 
 
         disability.
 
         
 
              Section 85.27 of The Code gives an employer the right to 
 
         select the providers of medical care for an injured employee.  
 
         When the claimant in this case reported her injuries to the 
 
         employer's personnel, she was directed to go to her own 
 
         physician.  Such directive was, in essence, the employer's 
 
         choice.  It had the impact of making claimant the employerOs 
 
         representative or agent for purposes of selecting authorized care 
 
         and treatment.  Defendants voluntarily paid the expenses with Dr. 
 
         Neff, apparently without any objection.  Their action in the way 
 
         this case was handled had the effect of making Dr. Neff a 
 
         physician that was retained by the defendants.  Coble v. Metro 
 
         Media, Inc., 34th Biennial Report, Iowa Industrial Commissioner, 
 
         71 (1979); Munden v. Iowa Steel & Wire, 33rd Biennial Report, 
 
         Iowa Industrial Commissioner, 99 (1977).  Dr. Neff expressed an 
 
         opinion of no documentable impairment of any significant nature.  
 
         Such is sufficient to constitute a rating for purposes of section 
 
         85.39. Kilness v. Ebasco Serv., Inc., 34th Biennial Report, Iowa 
 
         Industrial Commissioner, 161 (1979); Coble v. Metro Media, Inc., 
 
         34th Biennial Report, Iowa Industrial Commissioner, 70 (1979)  
 
         Accordingly, claimant in this case is entitled to recover the 
 
         reasonable expense of an evaluation by a physician of her choice; 
 
         she exercised that right by seeking an evaluation from Dr. 
 
         Bashara.  The charge for that evaluation, in the amount of 
 
         $175.00, is found to be reasonable.  The cost of the report of 
 
         the results of the evaluation is impliedly a part of the cost of 
 
         the evaluation and is likewise limited by the standard of 
 
         reasonableness.  Defendants are therefore responsible for payment 
 
                                                
 
                                                         
 
         to claimant for the expenses of an evaluation under the 
 
         provisions of section 85.39 of The Code in the amount of 
 
         $175.00.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Susan M. Smith has a two-percent permanent partial 
 
         disability of her right hand and a one-percent permanent partial 
 
         disability of her left hand as a result of injuries she sustained 
 
         in tier employment with the Armstrong Rubber Company on or about 
 
         March 27, 1984.
 
         
 
              2.  The permanent impairment was proximately caused by the 
 
         injury of March 27, 1984.
 
         
 
              3.  The employer directed claimant to seek treatment from 
 
         physicians of her own choice.
 
         
 
              4.  The employer voluntarily paid the physicians claimant 
 
         chose without objection.
 
         
 
              5.  The charges from Dr. Bashara (Iowa Orthopaedics) in the 
 
         amount of $175.00 are reasonable.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant has a two-percent permanent partial disability 
 
         to the whole person which, under the provisions of Iowa Code 
 
         section 85.34(2)(s) entitles her to receive ten weeks of 
 
         compensation for permanent partial disability.
 
         
 
              3.  Scott B. Neff, D.O., was a physician retained by the 
 
         employer by virtue of the employerOs directive to claimant to 
 
         choose her own physician and the employer's action in voluntarily 
 
         paying Dr. Neff for his services.
 
         
 
              4.  Claimant is entitled to recover $175.00 as and for the 
 
         cost of an independent medical examination under the provisions 
 
         of Iowa Code section 85.39.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant ten 
 
         (10) weeks of compensation for permanent partial disability at 
 
         the stipulated rate of three hundred twenty-two and 14/100 
 
         dollars ($322.14) per week payable commencing June 15, 1984.  The 
 
         entire amount is past due and payable in a lump sum, together 
 
         with interest pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant one 
 
                                                
 
                                                         
 
         hundred seventy-five and 00/100 dollars ($175.00) for the cost of 
 
         an independent medical examination pursuant to Iowa Code section 
 
         85.39.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3
 
         
 
         
 
              Signed and filed this 28th day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert W. Pratt
 
         Attorney at Law
 
         1913 Ingersoll Avenue
 
         Des Moines, Iowa 50309
 
         
 
         Mr. David M. Swinton
 
         Attorney at Law
 
         100 Court Avenue
 
         Suite 600
 
         Des Moines, Iowa 50309
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40, 1803, 2502
 
                                                 Filed June 28, 1988
 
                                                 MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SUSAN M. SMITH,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 761319
 
         ARMSTRONG RUBBER COMPANY,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1402.40, 1803, 2502
 
         
 
              Claimant's injury was bilateral carpal tunnel syndrome.  
 
         Physicians had rated "no significant impairment," three percent 
 
         of each upper extremity and no permanent partial disability.  
 
         Claimant complained of residual numbness, tingling, loss of grip 
 
         strength and loss of fine manual dexterity.  Claimant's 
 
         complaints were corroborated by the histories she provided to the 
 
         various physicians.  A neurological examination showed some 
 
         sensory abnormalities in claimantOs hands.  ClaimantOs complaints 
 
         were found to be true and correct.  She was found to have a 
 
         one-percent permanent partial disability of her left hand and a 
 
         two-percent permanent partial disability of her right hand.  When 
 
         converted and combined, she was found to have a two-percent 
 
         permanent partial disability of the body as a whole, which 
 
         entitled her to ten weeks of compensation under section 
 
         85.34(2)(s).
 
         
 
              When claimant reported her injuries, she was directed to go 
 
         to her own physician.  Such was held to make claimant the 
 
         employer's authorized representative for purposes of selecting 
 
         medical care.  The employer voluntarily and without objection 
 
         paid the physician's fees as charged.  Such was held to make the 
 
         treating physician a physician retained by the employer for 
 
         purposes of section 85.39 examinations.  Claimant was held 
 
         entitled to an independent evaluation under section 85.39.
 
         
 
         
 
                                                         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40, 1803
 
                                                 Filed September 26, 1988
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY BEBO,
 
                                                File No.  761330
 
             Claimant,
 
         
 
         vs.                                 A R B I T R A T I 0 N
 
         
 
         JOHN MORRELL & CO.,
 
                                                D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.40, 1803
 
         
 
              Claimant awarded ten percent industrial disability based on 
 
         permanent functional impairment ratings of 5 and 15 percent 
 
         respectively.  Claimant suffered a possible or equivocal 
 
         herniated nucleus pulposus and was precluded from doing heavy, 
 
         strenuous work in the future.  However, claimant did return to 
 
         his old light duty job after the injury making boxes and 
 
         performed it for two years until the plant closed and he chose to 
 
         resign rather than transfer.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DON SCHUBERT,
 
         
 
              Claimant,
 
                                                    File No. 761337
 
         
 
         vs.
 
                                                 A R B I T R A T I O N
 
         
 
         JOHN MORRELL & COMPANY,                    D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding brought by Don Schubert, claimant, 
 
         against John Morrell & Company, self-insured, employer.  The case 
 
         came upon a petition for arbitration for benefits as a result of 
 
         an injury which occurred on April 2, 1984.  The case was heard by 
 
         the undersigned on August 18, 1988.  The case was fully submitted 
 
         at the completion of the hearing.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of claimant's exhibits 1 and 2, and 
 
         defendant's exhibits A-1 and A-2.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained work related injuries to his left thumb 
 
         and hand on April 2, 1984 when he smashed his left thumb between 
 
         the controls of a guardrail and a jack.  Claimant was referred to 
 
         the hand clinic at Mayo by his local physician, Dr. Neuro, in 
 
         Estherville, Iowa.  Two surgeries were performed at Mayo.
 
         
 
              After the surgeries were performed, claimant was given a 
 
         functional impairment rating of the hand of 17.5 percent by W. P. 
 
         Cooney, M.D., of the Mayo Clinic.  Claimant was released for work 
 
         by Dr. Cooney.
 
         
 
              Claimant did not return to the work force.  He retired in 
 
         lieu of employment.  After the functional impairment rating of 
 
         17.5 percent, claimant was seen by C. B. Carignan, Jr., M.D., for 
 
         purposes of evaluation only.
 
         
 
                                      ISSUE
 
         
 
              Whether claimant has sustained a permanent partial 
 
         disability to his left hand, and if so, the nature and extent of 
 
         that disability.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 

 
         
 
         
 
         
 
         SCHUBERT V. JOHN MORRELL & COMPANY
 
         PAGE   2
 
         
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on April 2, 1984 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 2, 1984 is causally related 
 
         to the disability on which he now bases his claim.  Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  Lindahl v. 
 
         L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
               However, expert medical evidence must be considered with 
 
         all other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              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).
 
         
 
              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, 222 Iowa 
 
         272, 268 N.W. 598 (1936).
 
         
 
                                     ANALYSIS
 
         
 
              The sole question which is addressed here is the nature and 
 
         extent of any scheduled member disability to the left hand.  W. 
 
         P. Cooney, M.D., of the Mayo Clinic, treated claimant and 
 
         performed surgery on claimant's left hand.  Approximately nine 
 
         months after claimant's surgery, Dr. Cooney evaluated claimant's 
 
         impairment.  In his letter of March 18, 1986, he writes:
 
         
 
              Mr. Schubert is status post fusion of his left thumb 
 
              MCP joint in June of 1985.  He has done very well and 
 
              reports only minimal tenderness in the thumb with 
 
              prolonged use of the hand.  His range of motion has 
 
              increased somewhat to 30 degrees of flexion.  His 
 
              extension is +20 in the IP joint.  His web space 
 
              measurements are 12.5 on the left and 15 on the right.  
 
              Palmar abduction is 35 degrees and planar abduction is 
 
              30 degrees and his grip strength is increased to 30 kg 
 

 
         
 
         
 
         
 
         SCHUBERT V. JOHN MORRELL & COMPANY
 
         PAGE   3
 
         
 
         
 
              on the left from 16 kg on his last visit.  His grip 
 
              strength on the right is 45 kg ....
 
         
 
              ...I recognize the problems of loss of grasp of small 
 
              and large objects because of the fusion of the thumb 
 
              joint.  Based on our permanent impairment tables there 
 
              is a 35 percent permanent impairment of the thumb 
 
              related to fusion of that joint.  The thumb represents 
 
              50 percent of the hand, therefore, the total permanent 
 
              impairment of the hand is 17.5 percent ....
 
         
 
              On July 31, 1987, Dr. Cooney reevaluated claimant.  In Dr. 
 
         Cooney's letter of September 10, 1987, he writes:
 
         
 
              ... He was seen in June of 1984 and had advancement of 
 
              the radial collateral ligament stabilized with a 
 
              K-wire.  Went on to develop continued symptoms of pain 
 
              and disability and in June of 1985 an arthrodesis of 
 
              left thumb MCP joint using a tension band wire 
 
              technique.  Results of that surgery have been a solid 
 
              fusion of the thumb.  There has been some loss of 
 
              motion, however, at the IP joint which has a range of 
 
              motion of 30 degrees hyperextension and 25 degrees of 
 
              flexion for a total range of motion of 55 degrees.  
 
              There is relatively good motion at the thumb CMC joint.  
 
              Pinch strength measures 2 kg tip pinch on the elft 
 
              [sic], 3.5 to 4 on the right, while key pinch measures 
 
              4 kg on the left versus 8.5 on the right.
 
         
 
              ... My impression of the patient's permanent impairment 
 
              has not changed since March of 1986 at which time a 
 
              disability permanent impairment of 35 percent of the 
 
              thumb related to fusion of that joint was determined.
 
         
 
              Claimant was dissatisfied with the impairment rating lie 
 
         received from Dr. Cooney.  As a result, claimant was seen by C. 
 
         B. Carignan, Jr., M.D., for purposes of examination and 
 
         evaluation.  Dr. Carignan, in a letter to claimant's attorney 
 
         dated June 17, 1987, evaluates claimant as follows:
 
         
 
              The Metacarpo-Phalangeal [sic] joint of the left thumb 
 
              is ankylosed at 35 degrees of flexion, equivalent to 
 
              57% impairment of the thumb.
 
         
 
              The Carpo-metacarpal [sic] shows 10 degrees loss of 
 
              extension equivalent to 5% functional impairment of the 
 
              thumb and also 10 degrees loss of flexion equivalent to 
 
              5% functional impairment of the thumb.
 
         
 
              In addition there is an estimated 20% loss of strength 
 
              in the left thumb equivalent to an additional 5% 
 
              impairment of the thumb.
 
         
 
              This amounts to a total of 72% impairment of the thumb 
 
              which is equivalent to a 29% impairment of the hand, 
 
              which is equivalent to a 26% impairment of the left 
 
              upper extremity, which is equivalent to 16% functional 
 
              impairment of the whole person due, with reasonable 
 
              medical certainty, to residuals from the injury   Of 
 
              April 2, 1984 sustained at John Morrell, in 
 
              Estherville.
 
         
 
              Apparently the discrepancies between the two impairment 
 

 
         
 
         
 
         
 
         SCHUBERT V. JOHN MORRELL & COMPANY
 
         PAGE   4
 
         
 
         
 
         ratings lie in the fact that Dr. Cooney measured the range of 
 
         motion of the interphalangeal joint, and the metacarpophalangeal 
 
         joint.  Dr. Cooney did not measure the range of motion of the 
 
         third joint, the carpometacarpal joint.  All he said was, 
 
         "relatively good motion of the thumb CMC joint."  Dr. Carignan, 
 
         on the other hand measured all three joints and Dr. Carignan also 
 
         assessed a five percent loss of impairment because of the 20 
 
         percent loss of strength.
 
         
 
              Dr. Cooney did not measure the third joint.  He did not 
 
         assess an additional five percent impairment loss for a 20 
 
         percent loss of strength.  Dr. Carignan did find the 20 percent 
 
         loss of strength.  Claimant's testimony corroborates the loss of 
 
         strength finding.  He stated he cannot grip a screwdriver with 
 
         his thumb.  He also testified fie is unable to bend his left 
 
         thumb around his fingers.  Finally, claimant revealed, he is 
 
         unable to use his thumb when hammering, sawing, operating a 
 
         screwdriver, and he has limited use of the thumb when shoveling.
 
         
 
              According to the Guides to the Evaluation of Permanent 
 
         Impairment of the American Medical Association at page 5, the 
 
         proper method for calculating the impairment of the thumb is as 
 
         follows:
 
         
 
         
 
              1.  Calculate separately and record impairment of thumb 
 
              contributed by each joint.
 
         
 
              2.  Combine impairment values, using combined values 
 
              chart, to ascertain impairment of thumb contributed by 
 
              all joints.
 
         
 
              3.  Consult Table 6 (Thumb) to ascertain impairment of 
 
              hand contributed by thumb.
 
         
 
              Using the AMA Guides as the method for calculating any 
 
         impairment, it appears the following values for restricted motion 
 
         of each joint are:
 
         
 
              interphalangeal joint           5%
 
              metacarpophalangeal joint      57%
 
              carpometacarpal joint           5%
 
                            sub Total        67%
 
              loss of strength                5%
 
                                 Total       72%
 
         
 
              Table 6 of the AMA Guides determines the impairment of the 
 
         hand as contributed by the thumb.  According to Table 6, 72% 
 
         impairment of the thumb converts to 29% impairment of the hand.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  On April 2, 1984, claimant was injured while 
 
         working for defendant.
 
         
 
              CONCLUSION A.  On April 2, 1984, claimant received an injury 
 
         arising out of and in the course of his employment with 
 
         defendant.
 
         
 

 
         
 
         
 
         
 
         SCHUBERT V. JOHN MORRELL & COMPANY
 
         PAGE   5
 
         
 
         
 
              FINDING 2.  As a result of that injury, claimant sustained 
 
         injuries to his left thumb and hand.
 
         
 
              CONCLUSION B.  Claimant met his burden of proving a causal 
 
         connection between his injury on April 2, 1984 and his left thumb 
 
         and hand complaints.
 
         
 
              FINDING 3.  Claimant has a 29 percent permanent impairment 
 
         to the hand as a result of his April 2, 1984 injury.
 
         
 
              CONCLUSION C.  Claimant has met his burden of proving he is 
 
         entitled to fifty-five and one-tenth (55.1) weeks of permanent 
 
         partial disability benefits because of the April 2, 1984 injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant fifty-five and 
 
         one-tenth (55.1) weeks of permanent partial disability benefits 
 
         at a rate of two hundred sixty-five and 44/100 dollars ($265.44) 
 
         per week.
 
         
 
              Defendant shall receive credit for benefits paid.
 
         
 
              Accrued benefits are to be made in a lump sum together with 
 
         statutory interest at the rate of ten percent (10%) per year 
 
         pursuant to section 85.30, Code of Iowa, as amended.
 
         
 
              Costs are taxed to defendant pursuant to Division of 
 
         Industrial Services rule 343-4.33.
 
         
 
              Defendant shall file a final report upon payment of this 
 
         award.
 
         
 
         
 
              Signed and dated this 24th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        MICHELLE A. McGOVERN
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         826 1/2 Lake St.
 
         P. O. Box 455
 
         Spirit Lake, Iowa  51360
 
         
 
         Mr. Dick H. Montgomery
 
         Attorney at Law
 
         Professional Bldg.
 
         P. O. Box 7038
 
         Spencer, Iowa 51301
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1100; 1803.1
 
                                                Filed October 24, 1988
 
                                                MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DON SCHUBERT,
 
         
 
              Claimant,
 
                                                 File No. 761337
 
         vs.
 
                                              A R B I T R A T I O N
 
         JOHN MORRELL & COMPANY,
 
                                                 D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1100
 
         
 
              It was determined that claimant sustained an injury which 
 
         arose out of and in the course of employment with employer.
 
         
 
         1803.1
 
         
 
              Claimant awarded 29 percent permanent partial disability to 
 
         the hand as a result of the injury.
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELIZABETH ANN ECKSTEIN,
 
         
 
              Claimant,
 
                                                   File No. 761607
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         CHENHALL PERSONNEL SERVICES,
 
         INC.,                                      D E C I S I 0 N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      JAN 25 1990
 
         THE TRAVELERS INSURANCE OF
 
         DES MOINES,                         IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Elizabeth Ann 
 
         Eckstein, claimant, against Chenhall Personnel Services, Inc., 
 
         and its insurance carrier, The Travelers Insurance Company, 
 
         defendants.  The case was heard by the undersigned on the 4th day 
 
         of January, 1990.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record also consists of joint exhibits 1-7.
 
         
 
                                      ISSUE
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on January 4, 1990, the issue presented by the parties 
 
         is:
 
         
 
              1.  Whether claimant is entitled to permanent partial or 
 
         total disability benefits.
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury 
 
         is stipulated;
 
         
 
              2.  That claimant sustained an injury on March 31, 1984, 
 
         which arose out of and in the course of employment with employer;
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              3.  That the alleged injury is a cause of temporary 
 
         disability during a period of recovery;
 
         
 
              4.  That all temporary total disability/healing period 
 
         benefits due and owing have been paid in full;
 
         
 
              5.  That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         a scheduled member disability to the right foot; that the 
 
         commencement date for permanent partial disability, in the event 
 
         such benefits are awarded, is stipulated to be the 7th day of 
 
         June, 1984;
 
         
 
              6. In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $121.10 per week; and,
 
         
 
              7.  All requested benefits under section 85.27 have been 
 
         paid by defendants.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 45 years old.  She was hired by Chenhall 
 
         Personnel.  Chenhall would then contract with various third 
 
         parties.  These third parties would use claimant's services at 
 
         their place of business where claimant would perform various 
 
         labor tasks.
 
         
 
              On the day in question, claimant had been contracted out to 
 
         Honda where she was engaged in pulling stock from shelves. 
 
         Claimant was using a special cart with a footstool equipped on 
 
         the end.  She was standing on the third step of the footstool and 
 
         was reaching for a box from one of the shelves.  The cart began 
 
         moving and claimant attempted to grab one of the shelves for 
 
         balance. Instead of balancing herself, claimant fell on her right 
 
         ankle.
 
         
 
              Claimant was carried downstairs.  She was treated at Mercy 
 
         Hospital in Davenport, Iowa.  A cast was placed on her right 
 
         lower extremity.  Richard L. Kreiter, M.D., P.C., treated 
 
         claimant.  He diagnosed claimant as having:  "Possible small 
 
         avulsion from the medical aspect of the talus and small area of 
 
         calcification distal tip of lateral malleolus."
 
         
 
              Dr. Kreiter released claimant to return to work on June 6, 
 
         1984.  In July of 1988, Dr. Kreiter wrote claimant's attorney.  
 
         The physician opined:  "on physical examination, there is very 
 
         little impairment, however, a bone scan would show early 
 
         degenerative changes and she would have a rather significant 
 
         problem."
 
         
 
              Later, Dr. Kreiter opined in a letter dated October 10, 
 
         1988:
 
         
 
              I am writing again in regard to information on Elizabeth 
 
              Eckstein.  I find it, at the present time, difficult to give 
 
              an honest permanent impairment rating because Elizabeth has 
 
              full motion in her ankle and subtalar joints and her x-rays 
 
              really look quite good.  This does not mean that she does 
 
              not have some early degenerative changes developing in her 
 
              foot that are not yet apparent on x-ray.  It is for this 
 
              reason that I advised a focal bone scan with special 
 
              emphasis on joints of the feet, to see if she is developing 
 
              any changes in them.  Should she then, it would be much 
 
              easier for me to rate an honest impairment rating.  At the 
 
              present time, most of the evaluation has been subjective.  I 
 
              would be happy to see her again and order the bone scan and 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              then make the disability rating.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
              Finally, in April of 1989, Dr. Kreiter opined:
 
         
 
              [E]vidently the MRI of the ankle was normal.  I do believe 
 
              that she has vaguely a tendonitis, however, a bone scan 
 
              would tell us if she has any early arthritic changes within 
 
              the joint.  I still feel that that is the best study.
 
         
 
              At her hearing, claimant testified she has had problems with 
 
         her ankle since she was released to return to work.  She reported 
 
         her ankle swells when she engages in excessive walking and 
 
         standing and that often the ankle becomes very hot to the touch. 
 
         Claimant indicated she experiences a throbbing in her ankle once 
 
         it begins to swell.  Claimant stated her foot locks up and there 
 
         is cramping from the ankle to two and one-half inches above the 
 
         ankle.  Additionally, claimant stated she wears corrective shoes 
 
         with a lace top; she wears a jobst stocking and uses heat and ice 
 
         packs on her ankle.  Claimant also noted for the record that she 
 
         had sustained a prior injury to her right foot.  The injury 
 
         occurred in February of 1978.
 
         
 
              Claimant testified she voluntarily terminated her treatment 
 
         with Dr. Kreiter in 1989.  This was attributed to a personality 
 
         conflict between claimant and Dr. Kreiter.  Claimant stated she 
 
         had no additional plans for treatment by another orthopedic 
 
         surgeon.
 
         
 
                                  APPLICABLE LAW
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on March 31, 1984, which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W. 35, 38 (1934) discussed 
 
         the definition of personal injury in workers' compensation cases 
 
         as follows:
 
         
 
              While a personal injury does not include an occupational 
 
              disease under the Workmen's Compensation Act, yet an injury 
 
              to the health may be a personal injury.  [Citations 
 
              omitted.] Likewise a personal injury includes a disease 
 
              resulting from an injury....The result of changes in the 
 
              human body incident to the general processes of nature do 
 
              not amount to a personal injury.  This must follow, even 
 
              though such natural change may come about because the life 
 
              has been devoted to labor and hard work.  Such result of 
 
              those natural changes does not constitute a personal injury 
 
              even though the same brings about impairment of health or 
 
              the total or partial incapacity of the functions of the 
 
              human body.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   ....
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, not through the natural building up and 
 
              tearing down of the human body, but because of a traumatic 
 
              or other hurt or damage to the health or body of an 
 
              employee.  [Citations omitted.]  The injury to the human 
 
              body here contemplated must be something, whether an 
 
              accident or not, that acts extraneously to the natural 
 
              processes of nature, and thereby impairs the health, 
 
              overcomes, injures, interrupts, or destroys some function of 
 
              the body, or otherwise damages or injures a part or all of 
 
              the body.
 
         
 
              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 7 6, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              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 sec. 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist, 218 Iowa 724, 254 N.W. 35 (1934).  See also 
 
         Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139 (Iowa 1978); 
 
         Gosek v. Garmer and Stiles Co., 158 N.W.2d 731 (Iowa 1968); Barz 
 
         v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 
 
         N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963);  Yeager, 253 Iowa 369, 112 
 
         N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960). 
 
         See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist, 218 
 
         Iowa 724, 254 N.W. 35 (1934).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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).
 
         
 
              Permanent partial disabilities are classified as either 
 
         scheduled or unscheduled.  A specific scheduled disability is 
 
         evaluated by the functional method; the industrial method is used 
 
         to evaluate an unscheduled disability.  Martin v. Skelly Oil Co., 
 
         252 Iowa 128, 133, 106 N.W.2d 95, 98 (1960); Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (Iowa 1983); Simbro v. DeLong's Sportswear, 
 
         332 N.W.2d 886, 887 (Iowa 1983).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant was released to return to work on June 6, 1984.  
 
         The release was without any work restrictions.  Dr. Kreiter, the 
 
         treating orthopedic surgeon, found no functional impairment of 
 
         the lower extremity.  Dr. Kreiter also opined there was full 
 
         range of motion of the ankle and subtalar joints.  He determined 
 
         claimant's lower extremity was normal by objective standards per 
 
         a MRI.  Dr. Kreiter did determine that claimant's complaints of 
 
         pain were subjective in nature.
 
         
 
              On the other hand, claimant testified she has swelling of 
 
         the lower extremity after she stands or walks for excessive 
 
         periods of time.  Additionally, claimant stated she is required 
 
         to wear corrective shoes with a lace top for special support.  
 
         She also reported she is required to wear a jobst stocking.  
 
         Claimant was not required to wear the corrective shoes or the 
 
         support stockings prior to her injury on March 31, 1984.
 
         
 
              The undersigned notes that claimant is requesting this 
 
         division to substitute its judgment for that of the treating 
 
         physician.  Dr. Kreiter found no functional impairment.  This 
 
         issue has been addressed in the case of Leohr v. R & A Trucking, 
 
         file number 812964 (App. Decn. November 30, 1989).
 
         
 
              In the appeal decision, the industrial commissioner wrote:
 
         
 
              Claimant is correct in stating that the industrial 
 
              commissioner and deputy industrial commissioners are not 
 
              bound by the impairment ratings of physicians in assessing 
 
              disability for scheduled injuries.  However, a review of the 
 
              deputy's decision reveals that she properly considered the 
 
              law and the evidence presented.  In this case the deputy and 
 
              the undersigned determined a physicians [sic] rating of 
 
              impairment to be correct.  That does not mean that evidence 
 
              in another case might point to a different conclusion.
 
         
 
              In the present case, common sense dictates.  Here claimant 
 
         is required to wear corrective shoes and support stockings.  It 
 
         stands to reason that if claimant is without any functional 
 
         impairment, these are unnecessary.  However, since the shoes and 
 
         the stockings have been prescribed, claimant does have a 
 
         functional impairment.  Claimant has been wearing these devices 
 
         for nearly six years as means of support.  Claimant also has had 
 
         swelling for the same time period.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Therefore, in light of the foregoing, it is the 
 
         determination of the undersigned that claimant has a permanent 
 
         partial disability to the right foot of three percent.  This 
 
         finding is based upon 1) the aforementioned considerations; 2) 
 
         based upon the personal observation of claimant; 3) based upon 
 
         claimant's testimony at the hearing; and, 4) based upon agency 
 
         expertise (Iowa Administrative Procedures Act 17A.14(s))
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence and principles of law 
 
         presented, the following findings of fact and conclusions of law 
 
         are made:
 
         
 
              Finding 1.  Claimant sustained an injury to her right foot 
 
         on March 31, 1984, which the parties stipulated arose out of and 
 
         in the course of her employment.
 
         
 
              Finding 2.  Claimant has a loss of use of her right foot of 
 
         three percent.
 
         
 
              Finding 3.  As stipulated, claimant's rate of compensation 
 
         is $121.10 per week.
 
         
 
              Conclusion A.  Claimant has established that she is entitled 
 
         to permanent partial disability benefits of three percent of the 
 
         right foot.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants shall pay claimant permanent partial disability 
 
         benefits for four point five (4.5) weeks at the stipulated rate 
 
         of one hundred twenty-one and 10/100,dollars ($121.10) per week.
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Costs of the action are assessed against defendants pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file a claim activity report upon payment 
 
         of this award.
 
         
 
         
 
              Signed and filed this 25th day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. J. E. Tobey, III
 
         Attorney at Law
 
         512 East Locust St
 
         Davenport, IA  52803
 
         
 
         Ms. Vicki L. Seeck
 
         Mr. Richard McMahon
 
         Attorneys at Law
 
         600 Union Arcade Bldg
 
         111 East Third St
 
         Davenport, IA  52801
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1803
 
                                            Filed January 25, 1990
 
                                            MICHELLE A. McGOVERN
 
                                            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELIZABETH ANN ECKSTEIN,
 
         
 
              Claimant,
 
                                                    File No. 761607
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         CHENHALL PERSONNEL SERVICES,
 
         INC.,                                       D E C I S I 0 N
 
         
 
              Employer,
 
         
 
         and
 
         
 
         THE TRAVELERS INSURANCE OF
 
         DES MOINES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant sustained a three percent permanent partial 
 
         disability to the right lower extremity.  The treating physician 
 
         determined there was no functional impairment.  Nevertheless, 
 
         jobst stocking and corrective shoes were prescribed for claimant 
 
         by that physician.