1802; 1803; 3102; 3103
 
                                                  Filed January 14, 1988
 
                                                  WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         SHARON A. STONEBURNER,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   FILE NO. 765386
 
         MERIT BAKING COMPANY,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1802; 1803; 3102; 3103
 
         
 
              Claimant awarded healing period benefits from date of injury 
 
         until maximum medical improvement.  Only determination of maximum 
 
         medical improvement made by defendants' doctor.
 
         
 
             Claimant awarded 30 percent industrial disability of the body 
 
         as a whole.  Claimant could not return to her old job(s) on the 
 
         production line due to weight restrictions.  However, she refused 
 
         a myelogram to try to determine a medical basis for her continued 
 
         complaints of pain.  She was determined qualified for pain center 
 
         treatment but refused to attend.  She was offered vocational 
 
         rehabilitation but told the specialist she was unable to work.  
 
         She refused to be retrained or re-educated for new endeavors.  
 
         MMPI, psychologist and psychiatrist said she used sickness for 
 
         secondary gain in the marital relationship and to control 
 
         others.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         FRED KISCHER,
 
         
 
              Claimant,
 
                                                         File No. 765484
 
         VS.
 
                                                     A R B I T R A T I 0 N
 
         WILSON FOODS,
 
                                                        D E C I S I 0 N
 
              Employer,
 
              Self-insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Fred Kischer, 
 
         claimant, against Wilson Foods Corporation, employer, and 
 
         self-insured defendant for benefits as a result of an injury that 
 
         occurred on May 17, 1984.  A hearing was held in Storm Lake, Iowa 
 
         on March 30, 1988 and the case was fully submitted at the close 
 
         of the hearing.  The record consists of the testimony of Fred 
 
         Kischer (claimant), claimant's exhibits 1 through 13 and 
 
         defendant's exhibits A and B.  Defendant's attorney submitted an 
 
         excellent brief.  Claimant's attorney did not submit a brief.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         employer and claimant at the time of the injury;
 
         
 
              That claimant sustained an injury on May 17, 1984 which 
 
         arose out of and in the course of employment with employer;
 
         
 
              That temporary disability benefits have been paid and that 
 
         temporary disability is not an issue in this case at this time;
 
         
 
              That the injury is the cause of some permanent disability;
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event of an award of permanent partial 
 
         disability benefits, is February 26, 1985;
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $233.10 per week;
 
         
 
              That all requested medical benefits have been or will be
 
         paid by defendant;
 
         
 
              That defendant makes no claim for credit for benefits paid 
 

 
         
 
         
 
         
 
         KISCHER V. WILSON FOODS
 
         Page   2
 
         
 
         
 
         under an employee non-occupational group health plan prior to 
 
         hearing;
 
         
 
              That defendant is entitled to a credit for 15 weeks of 
 
         permanent partial disability benefits paid at the rate of 
 
         $230.00 per week prior to hearing beginning on November 21, 
 
         1985; and
 
         
 
              That there are no bifurcated claims.
 
         
 
                                       ISSUES
 
         
 
              The parties presented the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant is entitled to permanent partial disability 
 
         benefits, and if so, the nature and extent of benefits to which 
 
         he is entitled, including whether claimant is entitled to 
 
         scheduled member benefits or industrial disability benefits for 
 
         an injury to the body as a whole; and
 
         
 
              The issue of whether claimant is an odd-lot employee as 
 
         shown on the hearing assignment order was withdrawn by claimant 
 
         on the record at the time of the hearing.
 
         
 
                             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 July 15, 1953.  He 
 
         was 30 years old at the time of the injury and 34 years old at 
 
         the time of the hearing.  He graduated from high school in 1971 
 
         with average to below average grades in the lower part of his 
 
         class.  He did poor in science but did well in mathematics.  He 
 
         mixed mink feed on a fur farm for five years from 1971 to 1975.  
 
         He started to work for employer in February of 1975 at Cherokee 
 
         and has been there ever since except for the period of time from 
 
         approximately May of 1985 to May of 1986.  He has worked on both 
 
         beef kill and hog kill.  He has performed most of the jobs on the 
 
         kill floor.  Only five other employees have more seniority than 
 
         claimant.  Claimant testified that he has suffered a few episodes 
 
         of tendonitis and several cuts but none of these injuries has 
 
         resulted in a severe disabling injury.
 
         
 
              On May 17, 1984 claimant was working with regular trimmings. 
 
          Regular trimmings are pieces of fat with a small amount of meat 
 
         in them.  He was instructed to make up 80 pound boxes of regular 
 
         trimmings.  He prepared three and one-half pallets of boxes of
 
         regular trimmings with 30 boxes per pallet.  The next day he was 
 
         told that employer wanted 75 pound boxes instead of 80 pound 
 
         boxes.  The meat had frozen in the meantime.  So, claimant drove 
 
         a long rod or bar down into the corner of the boxes and chipped 
 
         out and removed five pounds per box.  Then, he reweighed the 
 
         boxes to ensure that they weighed 75 pounds.  Claimant testified 
 
         that he is left handed and that he did this chipping of the 
 

 
         
 
         
 
         
 
         KISCHER V. WILSON FOODS
 
         Page   3
 
         
 
         
 
         frozen regular trimmings with his dominant left arm.  He 
 
         experienced pain that same night while at work in his left 
 
         shoulder.  It was worse the following day and grew progressively 
 
         worse for the next few days (Exhibit 1).
 
         
 
              Claimant reported this injury to Mary Kitterman, plant 
 
         nurse, on May 21, 1984.  Kitterman sent claimant to see Mark 
 
         Peterson, a physician's assistant at the Cherokee Clinic on May 
 
         21, 1984 (Ex. 2).  Claimant testified and the form 2a verifies 
 
         that claimant lost about ten days work from May 18, 1984 to May 
 
         28, 1984 (Ex. 1, page 2).
 
         
 
              On July 17, 1984, claimant complained again of a strained 
 
         muscle in his left shoulder and was sent to see the company 
 
         physician, Keith 0. Garner, M.D. (Ex. 5).  Claimant testified 
 
         that he saw Dr. Garner many times in May, June and July of 1984.  
 
         He said that he was treated with Motrin, Icy Hot and physical 
 
         therapy.  Icy Hot was the only thing that helped by temporarily 
 
         soothing the pain in his left shoulder.
 
         
 
              Claimant demonstrated at the hearing by gestures that the 
 
         pain is in the top of his shoulder where it joins the neck.  From 
 
         there it shoots down into his chest, down into his back and up 
 
         into his head.
 
         
 
              Dr. Garner referred claimant to D. G. Paulsrud, M.D., an 
 
         orthopedic surgeon in Sioux City, who first saw claimant on 
 
         September 20, 1984 for pain in the periscapular area up into the 
 
         trapezius area and out into the subdeltoid region.  Dr. Paulsrud 
 
         said that claimant had a full range of motion but also described 
 
         some crepitation in the subdeltoid area.  X-rays were normal.  
 
         Dr. Paulsrud diagnosed rotator cuff tendonitis (Ex. 7, p. 2).
 
         
 
              On June 25, 1985, Dr. Paulsrud saw claimant again for the 
 
         same continuing complaints, diagnosed rotator cuff tendonitis 
 
         again and concluded that claimant is unsuited for heavy, 
 
         repetitive work using that arm (Ex. 7, p. 1).  On November 26, 
 
         1985, Dr. Paulsrud noted catching and aching in the shoulder with 
 
         motion.  He recommended claimant get retrained for some activity 
 
         that does not require heavy, repetitive use of this shoulder (Ex. 
 
         7, p. 3).  On December 12, 1985, Dr. Paulsrud reported that on 
 
         November 26, 1985 claimant had a full range of motion, some 
 
         crepitation in his rotator cuff, reflexes were equal and active, 
 
         no significant muscle atrophy, x-rays were normal and the doctor 
 
         
 
         
 
         diagnosed chronic rotator cuff tendonitis.  He stated that 
 
         claimant had a ten percent permanent partial impairment in his 
 
         left upper extremity (Ex. 7, p. 4).  He charged $35.00 for this 
 
         report (Ex. 7, p. 5).  Dr. Paulsrud reported one more time on 
 
         April 29, 1987 at which time he stated:
 
         
 
                 As you are aware, Frederick Kischer was seen in the 
 
              office again on February 3, 1987.  He returned again for 
 
              problems with recurring pain in his left shoulder.  He 
 
              reported that he had been hired and fired by Wilson Foods 
 
              two times since he was here last, due mainly to problems 
 
              involved with his shoulder.  The man does have chronic 
 
              rotator cuff tendonitis.  I believe he is in the wrong kind 
 

 
         
 
         
 
         
 
         KISCHER V. WILSON FOODS
 
         Page   4
 
         
 
         
 
              of work.  It is occupational.in origin.  His permanent 
 
              partial impairment remains the same.
 
         
 
         (Ex. 7, p. 6)
 
         
 
              Claimant testified that Dr. Garner also sent him to see 
 
         Oscar M. Jardon, M.D., at the University of Nebraska Medical 
 
         Center, Department of Orthopedic Surgery in Omaha.  Dr. Jardon 
 
         made reports on January 5, 1985 and January 30, 1985.  Dr. Jardon 
 
         suspected shoulder impingement syndrome (Ex. 6, p. 1).  An 
 
         arthrogram was normal, but Dr. Jardon added that he was unable to 
 
         get dye into the subachromial bursa.  An injection of the bursa 
 
         gave relief for two days.  He diagnosed chronic bursitis of the 
 
         subachromial and recommended conservative, concentrated physical 
 
         therapy and nonsteroid anti-inflammatory medications.  He said 
 
         that claimant could try to work but he recommended against a lot 
 
         of activity overhead and heavy lifting.  Dr. Jardon did not award 
 
         an impairment rating (Ex. 6, p. 2).
 
         
 
              Claimant said that he saw Tim K. Daniels, M.D., on June 16, 
 
         1986 on his own to see if there was anything else that he could 
 
         do about his shoulder.  He said that he got this name from Dr. 
 
         Garner.  Dr. Daniels recommended to claimant that he rest the 
 
         left shoulder to reduce the pain and inflammation (Ex. 11).
 
         
 
              Claimant's attorney sent him to see A. J. Wolbrink, M.D., at 
 
         the Park Clinic in Mason City on June 25, 1986.  He described 
 
         claimant's symptoms as pain in the shoulder, supraclavicular 
 
         area, pectoral region, deltoid region, trapezius and neck.  He 
 
         added that symptoms increased with work activities.  He reported 
 
         no paresthesias or neurologic deficit.  X-rays of the cervical 
 
         spine and left shoulder were normal.  Claimant had a nearly 
 
         normal range of motion.  Dr. Wolbrink concluded as follows:
 
         
 
                 It is my opinion that Mr. Kischer has tendonitis [sic] of 
 
              the rotator cuff of the left shoulder and possible tear of 
 
              the meniscus of the AC joint with some degeneration of that 
 
              joint.  He has some symptoms to the neck, but do not see 
 
              evidence of significant injury or arthrosis of the cervical 
 
              spine.
 
         
 
                 It would be my opinion that the rotator cuff problems and 
 
              the tear of the meniscus in the AC joint probably are 
 
              related to his work situation.  This may well have started 
 
              from the incident which he describes and has been a bit 
 
              progressive with time, continued use, as well as some 
 
              degeneration since then.
 
         
 
                 It is my opinion that, at the present time, Mr. Kischer 
 
              has a permanent impairment of 15% of the left upper 
 
              extremity due to his problems with this shoulder.  I should 
 
              note that Mr. Kischer is left handed.
 
         
 
         (Ex. 8, p. 3)
 
         
 
              In a final paragraph Dr. Wolbrink added:  "Mr.  Kischer will 
 
         always have some difficulty with this shoulder.  He should avoid 
 
         work above shoulder level.  Also, repetitive pulling or pushing 
 
         activities with the left arm will cause increased symptoms.O (Ex. 
 

 
         
 
         
 
         
 
         KISCHER V. WILSON FOODS
 
         Page   5
 
         
 
         
 
         8. p.4).
 
         
 
              Dr. Wolbrink charged $93.00 for this examination (Ex. 8, p. 
 
         1).
 
         
 
              Dr. Wolbrink gave a deposition on September 11, 1986.  He 
 
         said that claimant reported that he lost a lot of work due to the 
 
         shoulder injury and that he was also off work for one year due to 
 
         a labor dispute, but he was working at the time of his 
 
         examination (Ex. 10, pp. 2-4).  He gave claimant a copy of the 
 
         shoulder owner's manual (Clmt. ex. 10, deposition ex. 1).
 
         
 
              Dr. Wolbrink stated that claimant sustained a 15 percent 
 
         permanent functional impairment of the left upper extremity which 
 
         he said converts to nine percent of the whole man according to 
 
         the Guides to the Evaluation of Permanent Impairment published by 
 
         the American Medical Association (Ex. 10, p. 13).  Dr. Wolbrink 
 
         said that he relied only on the history that he took from 
 
         claimant.  He did not have any other history or records to review 
 
         (Ex. 10, p.p. 18 & 19).  He felt claimant should avoid work above 
 
         shoulder level and repetitive pulling and pushing with the left 
 
         arm (Ex. 10, p. 24).  Other than those restrictions claimant is 
 
         fully capable of working (Ex. 10, p. 26).
 
         
 
              Claimant was next referred to Scott B. Neff, D.O., by Dr. 
 
         Garner.  Claimant saw both Dr. Neff and Thomas W. Bower, a 
 
         physical therapy consultant, on November 6, 1986.  Bower reported 
 
         to Neff that he noted a popping on movement of the left shoulder 
 
         and definite subluxation of the clavicle (Ex. 9. pp. 1 & 2).  Dr. 
 
         Neff found that claimant had a full range of motion of both
 
         shoulders.  He found no evidence of left shoulder instability or 
 
         subachromial impingement (Ex. 9, p. 4).  He said that the other 
 
         doctors had missed the proper diagnosis.  Dr. Neff stated that he 
 
         believes that claimant had a sternoclavicular joint disease next 
 
         to the breastbone and that is where the clicking and popping 
 
         occurs (Ex. 9, pp. 4 & 5).  Dr. Neff recommended against surgery 
 
         (Ex. 9, pp. 5 & 7).  A bone scan and x-rays were essentially 
 
         normal (Ex. 9, p. 3).  Dr. Neff assessed that claimant had 
 
         sustained a five percent permanent functional impairment based on 
 
         muscle soreness and decreased motion (Ex. 9, p. 7).  Bower took 
 
         body measurements for claimant's permanent functional impairment 
 
         rating that was awarded by Dr. Neff.  Bower verified to 
 
         claimant's counsel that Dr. Neff was not present at the time 
 
         these tests were performed (Ex. 9, pp. 7 & 8).
 
         
 
              Claimant admitted that he did not take all of the physical 
 
         therapy that was offered to him.  He explained that it went on 
 
         for quite a long time and that it really did not help him a lot. 
 
          Sometimes he was sick when his appointments were scheduled.  
 
         Many appointments were scheduled in the mornings and he was not 
 
         able to attend after working all night.  Claimant also stated 
 
         that he did not have an Iowa driver's license and that it was not 
 
         always possible to find someone to drive him for the therapy 
 
         treatments.  Claimant admitted that he did not ask the employer 
 
         for transportation to the physical therapy treatments.
 
         
 
              Claimant denied that he told Dr. Garner that he had a 
 
         part-time job on February 25, 1985 as reflected in Dr. Garner's 
 
         notes (Ex. 2, p. 4).  Claimant testified that the year he was off 
 

 
         
 
         
 
         
 
         KISCHER V. WILSON FOODS
 
         Page   6
 
         
 
         
 
         work, from approximately May of 1985 to May of 1986, was not due 
 
         to his shoulder.  He added that he did no work of any kind during 
 
         that year until approximately two or three weeks before he 
 
         returned to work for employer on May 5, 1986.  At that time, he 
 
         tried to see if he could be a bartender serving drinks.  Then, he 
 
         got his old job back with employer at the plant and he returned 
 
         to work there.  Claimant said that he was fired for missing work 
 
         due to his shoulder from July of 1986 until October of 1986.  
 
         Defendant's exhibit B shows that claimant's termination on July 
 
         8, 1986 was a result of four unexcused absences within a twelve 
 
         month period.
 
         
 
              Claimant explained that approximately 80 percent of the 
 
         absences for sickness on his employee work record (Ex. A) were 
 
         for his shoulder but he may not have explained that as the reason 
 
         because he got fired once for missing work due to his shoulder.  
 
         He added that sometimes he was just sick (Def. ex.  A, pp- 1-3). 
 
          Another employee record, the nonwork-related medical service 
 
         record, shows that claimant received first aid for his left 
 
         shoulder approximately 11 times between May 21, 1986 and October 
 
         28, 1987 (Ex. 13).
 
         
 
              Claimant testified that he was now performing the floor boy
 
         job.  This job requires him to keep the floor clear of fat, skin 
 
         and other debris.  He cleans up the floor and dumps the debris 
 
         down the hatcher hole.  This job involves pushing a two wheel 
 
         cart that weighs approximately 300 to 350 pounds when empty.  It 
 
         weighs approximately 900 to 1100 pounds when full.  It causes him 
 
         pain to operate the cart but he can shift some of the work to his 
 
         right arm and shoulder.  It does not take much effort to get it 
 
         rolling and if it is balanced okay it doesn't take much effort to 
 
         make it go.  Sometimes it spills and he has to refill it. 
 
         Sometimes if it starts to spill, he can stop it if he catches it 
 
         soon enough. Other times if it starts to spill, there is nothing 
 
         he can do to stop it.  Sometimes he cannot stop it because of the 
 
         weakness in his left shoulder.
 
         
 
              Claimant testified that the floor boy job is one of the best 
 
         jobs that he could have now for his current shoulder condition.  
 
         Even if it is heavy, it is not repetitive.  However he has been 
 
         on the line a few times since May of 1984.  The last time, was in 
 
         the spring of 1987 as a pace boner (Ex. A, p. 5).
 
         
 
              Claimant said that he is more uncomfortable doing knife work 
 
         now than in the past.  He said that he saw Dennis Nitz, M.D., a 
 
         neurologist, who diagnosed mild early carpal tunnel of the right 
 
         hand as a resuit of a median nerve conduction study done on April 
 
         1, 1987 (Ex. 12).  He stated that this is another reason why he 
 
         is trying to avoid repetitive movements.  Dr. Garner referred 
 
         claimant to Dr. Nitz for these right arm complaints.
 
         
 
              Claimant explained that certain jobs pay bracket amounts in 
 
         addition to the base pay scale.  A bracket is worth five cents 
 
         per hour more.  An eight bracket job would then pay 40 cents per 
 
         hour more.  Pace boning was an eight bracket job.  Claimant 
 
         testified that the floor boy job paid brackets also, however, 
 
         they are not shown on the plant employee service record (Ex. A, 
 
         p, 5).  Claimant conceded that most of his work for employer was 
 
         zero bracket work.  This is verified by defendant's exhibit A, 
 

 
         
 
         
 
         
 
         KISCHER V. WILSON FOODS
 
         Page   7
 
         
 
         
 
         page 5.
 
          
 
              Claimant said that he could work on the line but he does not 
 
         want to, partly because of his left shoulder, partly because of 
 
         his mild early right hand carpal tunnel syndrome, and partly 
 
         because he doesnOt feel like he needs to work that hard with all 
 
         of his seniority.  He repeated that the floor boy job is the best 
 
         job for him now on account of his shoulder.  It is easier work 
 
         and it is easier on the body.
 
         
 
              Claimant testified that he has not pursued any formal 
 
         education or training since high school.
 
         
 
              Claimant admitted that he did not accept the injection that 
 
         was offered to him by Dr. Wolbrink because Dr. Wolbrink was only 
 
         to evaluate him.  Claimant denied that Dr. Neff offered to inject 
 
         his shoulder.  Dr. Neff only recommended a shot at some time in 
 
         the future.  Furthermore, Dr. Neff also was an evaluating 
 
         physician.  Claimant recalled that he did receive an injection 
 
         from Dr. Jardon.
 
         
 
              Claimant acknowledged that only five other employees were 
 
         senior to him in the plant.  This meant that there are many jobs 
 
         that he could bid into, including utility man.  He granted that 
 
         he might own a job on pace boning but he was not aware of it.  He 
 
         agreed that most of the line jobs can now be done right in front 
 
         of you.  He did not believe that he could do the shanking job now 
 
         due to his left shoulder.  Claimant concluded by saying that he 
 

 
         
 
         
 
         
 
         KISCHER V. WILSON FOODS
 
         Page   8
 
         
 
         
 
         works in pain now just about all of the time.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of May 17, 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 (l967).
 
         
 
              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).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              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
 
         
 

 
         
 
         
 
         
 
         KISCHER V. WILSON FOODS
 
         Page   9
 
         
 
         
 
              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 
 
         injures employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant has sustained an injury to the body as a whole.  
 
         Therefore, he is entitled to industrial disability benefits.  
 
         Claimant described that his pain is in the trapezius area where 
 
         his left shoulder meets his neck.  From there, it radiates down 
 
         the front of his body to the pectoral area, runs down his back in 
 
         the trapezius area and it migrates up into his head.  All of 
 
         these areas are in the body as a whole.  The first report of 
 
         injury describes a left shoulder injury.
 
         
 
              Mark Peterson, the physician's assistant, treated claimant's 
 
         left shoulder (Ex. 2, p. 1).  Dr. Garner treated claimant's left 
 
         shoulder (Ex. 2, pp. 2-7).  Dr. Paulsrud said that claimant's 
 
         problem was in the periscapuiar, trapezius and subdeltoid areas. 
 
         he diagnosed rotator cuff tendonitis (Ex. 7, pp. 1-6).  Dr. 
 
         Jardon diagnosed shoulder impingement syndrome and chronic 
 
         subachromial bursitis (Ex. 6, pp. 1 & 2).  Dr. Wolbrink described 
 
         the condition as affecting the smoulder, suprascapular, pectoral, 
 
         deltoid, trapezius and neck.  He diagnosed left rotator cuff 
 
         tendonitis and a possible tear of the acromiociavicular joint 
 
         (Ex. 8, pp. 1-3).  Mr. Bower referred to popping on movement of 
 
         the left shoulder and subluxation of the clavicle.  Dr. Neff 
 
         disagreed with the other doctors and diagnosed sternoclavicular 
 
         joint disease next to the breastbone (Ex. 9 pp. 1-5).  All of the 
 
         above described body parts are areas of the torso considered to 
 
         be parts of the body as a whole.  Lauhoff Grain v. McIntosh 395 
 
         N.W.2d 834 (Iowa 1986); Alm v. Morris Barrack Cattle Co., 240 
 
         Iowa 1174, 38 N.W.2d 161 (1949); Nazarenus v. Oscar Mayer Co., II 
 
         Iowa Industrial Commissioner Report 281 (1982); Godwin v. Hicklin 
 
         GM Power, II Iowa Industrial Commissioner Report 170 (1981).  
 
         None of the doctors mentioned the arm except to measure the 
 
         amount of permanent functional impairment in the shoulder, chest, 
 
         back and neck.  Therefore, it is determined that claimant has 
 
         sustained an injury to the body as a whole.
 
         
 
              Claimant was 30 years old at the time of the injury and 34 
 
         years old at the time of the hearing.  Claimant is young enough 
 
         to be retrained and learn new skills.  The feasibility of 
 
         retraining is one consideration in a determination of industrial 
 
         disability.  Conrad v. Marquette School, Inc., IV Iowa Industrial 
 
         Commissioner Report 74, 78 (1984).  At age 30-34, claimant is 
 
         relatively young.  His loss of future earnings from employment 
 
         due to his disability is not as severe as it would be in the case 
 
         of an older individual.  Walton v. B & H Tank Corporation, II 
 
         Iowa Industrial Commissioner Report 426 (1981).
 
         
 
              Claimant has the advantage of a high school education.  He 
 
         has learned various jobs over the years while working for 
 
         employer (Ex. A, pp. 4 & 5).  Claimant is senior to all but five 
 
         other employees in the plant.  Therefore, under the bidding 
 
         system, claimant has a wide range of choice of jobs at the plant.  
 
         The large number of different jobs that claimant has been able to 
 

 
         
 
         
 
         
 
         KISCHER V. WILSON FOODS
 
         Page  10
 
         
 
         
 
         perform at the plant is evidence of his adaptability, but most of 
 
         these skills are not transferable outside of the meat packing 
 
         industry.  Claimant testified that he was in the ideal job for 
 
         him now as a floor boy.
 
         
 
              Since the injury, claimant has been able to perform the ham 
 
         boning job that paid eight brackets or 40 cents per hour more 
 
         than the base pay.  He has chosen not to do repetitive work 
 
         because of advancing tendonitis and because with his seniority he 
 
         can earn good money with the least amount of abuse to his body.  
 
         Although claimant has not had permanent weight restrictions or 
 
         limitations mandatorily imposed on him, he has nevertheless, been 
 
         advised by physicians that he will continue to have trouble it he 
 
         does repetitive or heavy work.  Claimant has suffered tendonitis 
 
         a number of times.  He now has crepitus, catching and popping in 
 
         his left shoulder.  Dr. Paulsrud recommended that claimant be 
 
         retrained for some activity that does not require heavy use of 
 
         the shoulder (Ex. 7, p. 3).  Dr. Paulsrud said that he believes 
 
         claimant is in the wrong kind of work (Ex. 7, p. 6).  Dr. Jardon 
 
         recommended against activity overhead and heavy lifting (Ex. 6, 
 
         p. 2).  Both of these doctors were selected by employer.
 
         
 
              Dr. Wolbrink said claimant will always have some difficulty 
 
         with his shoulder.  He should avoid work above shoulder level.  
 
         He stated that repetitive pulling and pushing with the left arm 
 
         will cause increased symptoms (Ex. 8, p. 4).  Physical therapist 
 
         Bower found popping on movement of the left shoulder and 
 
         subluxation of the clavicle (Ex. 9, pp. 1 & 2).  Dr. Neff found 
 
         claimant had sternoclavicular joint disease next to the 
 
         breastbone (Ex. 9, pp. 7 & 8).
 
         
 
              As for permanent functional impairment ratings, Dr. Paulsrud 
 
         found ten percent of the left upper extremity.  This converts to 
 
         six percent of the body as a whole.  Dr. Jardon did not assess a 
 
         rating.  Dr. Garner did not assess a rating.  Dr. Wolbrink found 
 
         that claimant's permanent functional impairment rating was 15 
 
         percent of the left upper extremity which he stated converts to 
 
         nine percent of the body as a whole.  Dr. Neff made an evaluation 
 
         of a five percent permanent functional impairment rating of the 
 
         left upper extremity based upon measurements performed by Mr. 
 
         Bower.  Dr. NeffOs rating converts to three percent of the body 
 
         as a whole.
 
         
 
              Industrial disability, or loss of earning capacity, in a 
 
         workers' compensation case is quite similar to impairment of 
 
         earning capacity, which is an element of damages in a tort case. 
 
          Impairment of physical capacity creates an inference of lessened 
 
         earning capacity.  The basic element to be determined, however, 
 
         is the reduction in value of the general earning capacity of the 
 
         person rather than the actual loss of wages or earnings in a 
 
         specific occupation.  Holmquist v. Volkswagon of America, Inc., 
 
         261 N.W.2d 516 (Iowa appeals 1977) 100 A.L.R. 3rd 143; 2 Larson, 
 
         sections 57.21 and 57.31.
 
         
 
              Although claimant did pace boning a short time ago at eight 
 
         brackets, he has opted to be floor boy to save wear and tear on 
 
         his already debilitated body.  Claimant testified that he did not 
 
         think he could do it again now.  By making the choice to avoid 
 
         repetitive work claimant has partially followed the 
 

 
         
 
         
 
         
 
         KISCHER V. WILSON FOODS
 
         Page  11
 
         
 
         
 
         recommendation of the doctors to find a different kind of work.  
 
         To completely follow the recommendation of the doctors would 
 
         probably require claimant to undergo some retraining or 
 
         on-the-job training in a new line of work which is not heavy, 
 
         does not require repetitive use of the arms, and no overhead 
 
         work.  Possibly he can find such work with employer but the 
 
         probability of finding such work is limited.
 
         
 
              In one case it was determined that when claimant returned to 
 
         his former employment without loss of earnings that there was no 
 
         industrial disability.  Mason v. Armour-Dial, Inc., I Iowa 
 
         Industrial Commissioner Report 227, 229 (1981).  At the same 
 
         time, there is no 100 percent assurance or guarantee that this 
 
         employer will be able to provide remunerative employment for 
 
         claimant until such time as he is eligible for retirement.  
 
         Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial 
 
         Commissioner Report 282 (Appeal Decision 1981).
 
         
 
              Therefore, based upon the foregoing factors and all of the 
 
         factors that go into determining loss of earning capacity and 
 
         industrial disability [Ver Steegh v. Rolscreen, IV Iowa 
 
         Industrial Commissioner Report, 377, 381 (1984)], it is 
 
         determined that claimant has sustained a 15 percent industrial 
 
         disability to the body as a whole.
 
         
 
              Claimant submitted an itemized list of costs with the 
 
         prehearing report.  The following costs from that list are 
 
         allowed.
 
         
 
              Court reporter charge for                  $ 92.91
 
              deposition of Dr. A.J. Wolbrink
 
         
 
              Professional charge of Dr. A.J.             150.00
 
              Wolbrink for deposition
 
         
 
              Medical report from Dr. A.J. Wolbrink        27.00
 
         
 
              Medical report of Dr. D. G. Paulsrud         35.00
 
         
 
                                  TOTAL                  $304.91
 
         
 
              Only two medical reports can be allowed pursuant to Division 
 
         of Industrial Services Rule 343-4.33(6).  Therefore, the medical 
 
         report of Dr. Paulsrud in the amount of $15.00 cannot be allowed 
 
         because two other medical reports for higher amounts are included 
 
         in the itemization above.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That claimant's injury is to his shoulder, neck, chest and 
 
         back;
 
         
 
              That claimant is age 34, has a high school education and no 
 
         additional formal education or training;
 
         
 
              That claimant is adaptable but has few, in any, transferable 
 

 
         
 
         
 
         
 
         KISCHER V. WILSON FOODS
 
         Page  12
 
         
 
         
 
         skills;
 
         
 
              That claimant is young enough to be retrained and to learn 
 
         other kinds of work;
 
         
 
              That two company physicians recommended that claimant 
 
         undergo retraining to learn to do work that is not heavy or 
 
         repetitive;
 
         
 
              That the various medical specialists awarded claimant 
 
         permanent functional impairment ratings of six percent, nine 
 
         
 
         percent and three percent of the body as a whole;
 
         
 
              That claimant did not receive any surgery for this injury 
 
         and that no surgery in contemplated at this time; and
 
         
 
              That claimant has sustained an industrial disability of 15 
 
         percent of the body as a whole.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated, the following conclusions of 
 
         law are made:
 
         
 
              That claimant has sustained an industrial disability to the 
 
         body as a whole; and
 

 
         
 
         
 
         
 
         KISCHER V. WILSON FOODS
 
         Page  13
 
         
 
         
 
         
 
              That claimant has sustained a 15 percent industrial 
 
         disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant seventy-five (75) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         thirty-three and 10/100 dollars ($233.10) per week in the total 
 
         amount of seventeen thousand four hundred eight-two and 50/100 
 
         dollars ($17,482.50) commencing on February 26, 1985;
 
         
 
              That defendant is entitled to a credit of fifteen (15) weeks 
 
         of permanent partial disability benefits paid prior to hearing at 
 
         the rate of two hundred thirty dollars ($230.00) per week 
 
         commencing on November 21, 1985 in the total amount of three 
 
         thousand tour hundred fifty dollars ($3,450.00);
 
         
 
              That all benefits are to be paid in a lump sum;
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30;
 
         
 
              That costs are assessed against defendant pursuant to 
 
         Division of industrial Services Rule 343-4.33 and in particular, 
 
         those costs previously set out above in the total amount of three 
 
         hundred tour and 91/100 dollars ($304.91); and
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 2nd day of June, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Steve Hamilton
 
         Attorney at  Law
 
         PO Box 188
 
         Storm Lake, Iowa 50586
 
         
 
         Mr. David Sayre
 
         Attorney at Law
 
         223 Pine Street
 
         Cherokee, Iowa 51012
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1803.1; 1402.40; 1804
 
                                                    Filed June 2, 1988 
 
                                                    WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         FRED KISCHER,
 
         
 
              Claimant,
 
         
 
                                                     File No. 765484
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         WILSON FOODS,
 
                                                    D E C I S I 0 N
 
              Employer,
 
              Self-Insured
 
              Defendant.
 
         
 
         
 
         1803.1
 
         
 
              All of the evidence indicated the injury was to the body as 
 
         a whole and no evidence indicated it was limited to the scheduled 
 
         member other than the impairment rating were expressed in terms 
 
         of the upper extremity.
 
         
 
         1402.40; 1804
 
         
 
              Claimant awarded 15 percent permanent partial disability for 
 
         left shoulder injury.  Impairment ratings were six percent, nine 
 
         percent, and three percent.  Various doctors recommended claimant 
 
         find new work, do no heavy lifting, do no repetitive work and not 
 
         work above shoulder level.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         THOMAS BEAU,
 
         
 
             Claimant,
 
                                                    FILE NO. 765725
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         JOHN DEERE DUBUQUE WORKS
 
         OF DEERE & COMPANY,                       D E C I S I O N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Thomas Beau, 
 
         claimant, against John Deere Dubuque Works of Deere & Company, 
 
         employer and self-insured defendant for benefits as a result of 
 
         an injury which occurred on September 16, 1983.  A hearing was 
 
         held on November 14, 1986 at Dubuque, Iowa and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Mervin Leon McClenahan, M.D. (employer's medical 
 
         director), Ann A. Beau (claimant's wife), Thomas Beau (claimant), 
 
         Russell Spensley (supervisor), and joint exhibits 1 through 42.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         claimant and the employer at the time of the alleged injury.
 
         
 
              That the claimant sustained an injury on September 16, 1983 
 
         which arose out of and in the course of his employment with the 
 
         employer.
 
         
 
              That the injury was the cause of temporary disability during 
 
         a period of recovery.
 
         
 
              That the claimant was entitled to and did receive temporary 
 
         disability benefits on various dates during his period of 
 
         recovery.
 
         
 
              That defendant has paid claimant "7.7 weeks (38 1/2 days 
 
         [sic])" of temporary disability at the rate of $304.21 per 
 
         week.
 
         
 
               That the injury was the cause of some permanent 
 

 
         
 
         
 
         
 
         BEAU V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   2
 
         
 
         
 
         disability.
 
         
 
               That the commencement date for permanent partial 
 
         disability benefits is stipulated to be May 30, 1984 in the 
 
         event of an award.
 
         
 
               That the weekly rate of compensation is $304.21 Der week 
 
         in the event of an award.
 
         
 
               That all requested medical benefits have been or will be 
 
         paid.
 
         
 
                                     ISSUES
 
         
 
               The issues presented by the parties for determination at 
 
         the time of the hearing were as follows:
 
         
 
               What is the extent of claimant's entitlement to permanent 
 
         partial disability benefits?
 
         
 
               Whether the claimant is entitled to scheduled member 
 
         disability benefits or whether the claimant is entitled to 
 
         benefits for industrial disability to the body as a whole.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant was 37 years old at the time of the injury and 40 
 
         years old at the time of the hearing.  He is a high school 
 
         graduate.  His grades were C's and D's in school.  He considered 
 
         himself an average student.  He did not go to college or 
 
         community college and he did not believe he was college material.  
 
         He has received no special education or training since high 
 
         school and was not in the military service.  Past employments 
 
         include operating a machine and driving a truck at a quarry, 
 
         driving as a chauffeur, and working in a feed store.
 
         
 
              Claimant started to work for the employer on April 17, 1972. 
 
          He has worked there ever since for approximately 15 years.  All 
 
         of his jobs for the employer prior to this injury were incentive 
 
         pay types of jobs.
 
         
 
              Claimant was injured on September 16, 1983 while operating a 
 
         punch press machine that is 15 or 20 feet high and weighs 
 
         thousands of pounds.  The day before the injury claimant saw the 
 
         machine wobble.  He reported this to his supervisor who got an 
 
         electrician who put a lockout on the machine.  Claimant put a 
 
         sign on the machine which said "Do Not Operate."  The following 
 
         day when he returned to work he found the lockout was off of the 
 
         machine and the sign was gone.  When he operated the machine a 
 
         shield came off and a 1,200 pound bull gear inside the machine 
 
         came off and fell toward him.  He backed away from it as it fell 
 
         toward him and he tried to push it away from himself.  As he did 
 
         so he heard a "pop" sound in his right shoulder.  His body was 
 
         thrown against a hopper at which time he injured his lower back.  
 
         In the fall he landed on his knees.  At first he was dazed and 
 
         did not feel anything.  On his way to the dispensary he noticed 
 

 
         
 
         
 
         
 
         BEAU V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   3
 
         
 
         
 
         he could not move his right arm.  At the hospital his back began 
 
         to bother him.  He had never had any back trouble prior to that 
 
         time.  Claimant was seen at Mercy Hospital emergency room, 
 
         x-rayed and returned to work (Exhibit 38, page 2).
 
         
 
              Claimant was then seen by Anthony J. Piasecki, M.D., an 
 
         orthopedic surgeon, at Medical Associates on September 22, 1983 
 
         and again on October 12, 1983.  X-rays of the right shoulder were 
 
         negative for any acute injury.  X-rays of his back showed 
 
         degenerative changes with lipping, narrowing of the disc spaces 
 
         and a sacralized last segment in the lumbar spine.  Dr. Piasecki 
 
         diagnosed (1) back strain, (2) contusion or strain of the right 
 
         shoulder, and (3) tendinitis of the left knee.  Dr. Piasecki 
 
         treated claimant with medications and physical therapy (Ex. 38, 
 
         pp. 2 & 7).
 
         
 
              The employer then asked for a second opinion from Scott C. 
 
         McCuskey, M.D., another orthopedic surgeon at Medical Associates, 
 
         who saw claimant on October 31, 1983, December 2, 1983, December 
 
         13, 1983, December 16, 1983, January 12, 1984, January 31, 1984 
 
         and February 25, 1984 (Ex. 38, pp. 3-11).   Dr. McCuskey 
 
         diagnosed (1) bursitis of the sub deltoid region of the right 
 
         shoulder and (2) mild strain of the back (Ex. 38, t). 12).  Dr. 
 
         McCuskey treated claimant with physical therapy, medications, and 
 
         trigger point injections.
 
         
 
              Claimant complained of testicle, genital, prostate and 
 
         urinary problems which he claimed he did not have before the 
 
         accident.  He was examined by George K. Kraemer, M.D., a 
 
         urologist at Medical Associates (Ex. 38, pp. 4 & 34) and Robert 
 
         A. Pfaff, M.D. (Ex. 38, pp. 25, 27 & 30).  Several tests were 
 
         done and claimant was seen a number of times but no conclusive 
 
         diagnosis was ever reached and nothing was suggested by any of 
 
         the doctors that any of the symptoms were related to the accident 
 
         of September 16, 1983 (Ex. 8).
 
         
 
              When claimant began to manifest sleeplessness and a grudge 
 
         against the safety crew at the employer, Dr. McCuskey commented 
 
         that this point of contention may be playing a role in his 
 
         ability to recover on a subconscious level (Ex. 38, p. 9).  Also 
 
         the physical therapist found claimant's symptomology difficult to 
 
         understand (Ex. 38, p. 10).  Due to the migrating, wandering 
 
         nature of his symptoms; conflict with the safety crew; and stress 
 
         from work; it was arranged for claimant to see Patrick R. 
 
         Sterrett, M.D., a neurologist and Jerome F. Beckman, Ph.D, who 
 
         works with biofeedback.  These doctors are both at Medical 
 
         Associates Clinic also (Ex. 38, p. 13).
 
              
 
              Dr. Sterrett examined claimant extensively for right 
 
         shoulder, low back and right knee pain on March 2, 1984.  Dr. 
 
         Sterrett's examination was essentially negative except for 
 
         chronic right shoulder pain that is fleeting in terms of 
 
         position.  He did order an EMG and nerve conduction study of the 
 
         right shoulder (Ex. 38, pp. 14-18).  The EMG/NCV tests showed no 
 
         denervation.  Dr. Sterrett concurred with the treatment program 
 
         of Dr. McCuskey and Dr. Piasecki and had nothing further to 
 
         recommend (Ex. 38, pp. 21 & 22).
 
         
 
              Dr. Beckman reported that claimant continued to be angry 
 
         with John Deere because he had warned them to fix his machine 
 

 
         
 
         
 
         
 
         BEAU V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   4
 
         
 
         
 
         before the injury.  Dr. Beckman recommended exercises and that 
 
         claimant unload his grudges because they can interfere with 
 
         healing and increase pain (Ex. 38, p. 15).
 
         
 
              Claimant was next seen by David S. Field, M.D., the third 
 
         member of the orthopedic staff at Medical Associates on April 17, 
 
         1984.  Dr. Field found no evidence of disc disease that needed 
 
         any further evaluation of the back.  He felt claimant had a 
 
         ligamentous strain secondary to the injury (Ex. 38, pp. 19 & 21; 
 
         Ex. 4).  An arthrogram of the right shoulder on May 2, 1984 
 
         showed (1) no rotator cuff tear, but (2) did show adhesive 
 
         capsilitis of the right shoulder (Ex. 38, p. 24; Ex. 5).
 
         
 
              Claimant was also seen by Dr. Schultz (full name unknown) at 
 
         Medical Associates who also appears to be an orthopedic doctor on 
 
         July 3, 1984 and August 3, 1984 (Ex. 38, pp. 29-31).  Dr. Field 
 
         continued to see claimant several times in late 1984 and early 
 
         1985 (Ex. 38, pp. 31-33; Ex. 6, 7, 8, 9 & 10).  Claimant was then 
 
         seen and treated by Paulette Lynn, M.D., a psychiatrist at 
 
         Medical Associates.  She saw claimant from March 20, 1985 to July 
 
         3, 1986 approximately 18 times (Ex. 11 through 24 generally).
 
         
 
              Claimant was also examined by William G. Clancy, M.D., of 
 
         the Sports Medicine Clinic at the University of Wisconsin on July 
 
         1., 1986.  He found claimant had reduced range of motion of his 
 
         right shoulder and slightly decreased muscle strength compared to 
 
         his left shoulder.  Dr. Clancy clinically suspected a partial 
 
         rotator cuff tear and recommended a repeat arthrogram (Ex. 33).  
 
         There was no evidence that this was ever done.
 
         
 
              On October 9, 1985, Dr. Field reviewed that claimant has had 
 
         difficulties with his right shoulder since the injury on 
 
         September 16, 1983 and that he had performed a shoulder 
 
         manipulation and injection on May 18, 1984.  Dr. Field gave range 
 
         of motion measurements of the right shoulder and found that 
 
         claimant had a 15 percent impairment of the right upper extremity 
 
         which equates to nine percent of the whole body (Ex. 23).  Later, 
 
         on September 6, 1986, Dr. Field added a five percent permanent 
 
         impairment for claimant's back condition (Ex. 35).  The combined 
 
         value of nine percent and five percent in the AMA Guides is 14 
 
         percent of the body as a whole.
 
         
 
              Dr. McClenahan, the employer's medical director, took 
 
         measurements and gave claimant a 22  percent permanent impairment 
 
         rating of the right upper extremity for the shoulder injury of 
 
         September 16, 1983 (Ex. 1, p. 22; Ex. 25).  Dr. McClenahan did 
 
         not give a written rating for the claimant's back condition.  
 
         However, at the hearing he testified that he agreed with the five 
 
         percent body as a whole rating for the back.  He testified that 
 
         his 22 percent right upper extremity rating converts to 13 
 
         percent impairment of the body as a whole.  Then combining 13 
 
         percent impairment for the right shoulder and five,percent for 
 
         the back resulted in an overall combined impairment rating of 17 
 
         percent of the body as a whole.
 
         
 
              Claimant was evaluated for impairment by Arnold E. 
 
         Delbridge, M.D., on May 21, 1986 at Waterloo, Iowa (Ex. 32).  Dr. 
 
         Delbridge noted there was no atrophy of the shoulder and 
 
         claimant's EMG report was negative.  However, the right shoulder 
 

 
         
 
         
 
         
 
         BEAU V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   5
 
         
 
         
 
         was slightly weaker than the left shoulder.  Claimant's range of 
 
         motion measurements were calculated and resulted in an 18 percent 
 
         impairment of his right shoulder which converted to a whole man 
 
         impairment rating of 11 percent.  Dr. Delbridge commented that 
 
         claimant's preexisting spondylolysis and spondylolythesis was 
 
         aggravated causing persistent stiffness, soreness and pain in his 
 
         back as a result of his injury.  Dr. Delbridge agreed that the 
 
         impairment rating of five percent awarded by Dr. Field would be 
 
         reasonable.  Using the Guides to Evaluation of Permanent 
 
         Impairment, Second Edition, Dr. Delbridge correctly combined the 
 
         11 percent impairment of the shoulder and the five percent 
 
         impairment of the back and gave claimant a 15 percent overall 
 
         impairment rating of the whole man.  Dr. Delbridge gives further 
 
         insight into the impairment by his concluding paragraph:
 
         
 
              This man will be compromised as a result of his injury 
 
              in terms of what he is able to do.  The changes that 
 
              have occurred in his work are that he cannot do piece 
 
              work anymore.  Apparently he was doing piece work prior 
 
              to his accident.  Now according to him he can't keep 
 
              up.   He will definitely have trouble with his limited 
 
              shoulder motion doing any work above chest level 
 
              indefinitely.  Considering his back situation, heavy 
 
              lifting is not advised.  His lifting limit should be in 
 
              the range of forty pounds and he should avoid markedly 
 
              excessive stooping and bending and especially lifting 
 
              from floor level and twisting.
 
              (Ex. 32)
 
         
 
              Dr. McClenahan testified that claimant received possibly 300 
 
         or more physical therapy treatments, numerous trigger joint 
 
         injections, a TENS unit and many medications.  He said that the
 
         spondylolysis and spondylolythesis were congenital but claimant 
 
         had not complained of any back problems prior to this injury.  He 
 
         said claimant should not do work above shoulder height with his 
 
         right arm.  However, he could lift any amount of weight up to 
 
         shoulder height.  Dr. McClenahan said the claimant should have no 
 
         restrictions due to his back in his opinion.
 
         
 
              Ann Beau, claimant's wife, testified that claimant has back 
 
         pain and right shoulder pain and that it is difficult for him to 
 
         sleep.  Previously he played basketball, baseball and volleyball 
 
         but cannot lift his hand over this head now.
 
         
 
              Claimant testified he has back pain if he stands or sits too 
 
         long.  He did not have any back problems before the accident.  
 
         His right shoulder is not painful, but he cannot lift his arm 
 
         over his head or behind his back.  His right arm is his dominant 
 
         arm.  If he holds it up it tires quickly.  If he tries to write a 
 
         two page letter it makes his arm sore and gives him pain.  
 
         Previously, he could curl weights up to 60 or 70 pounds but now 
 
         he can only curl 20 or 30 pounds.
 
         
 
              Claimant testified that he has tried to do a number of jobs 
 
         for the employer since the injury.  He tried forklift, spot 
 
         welder, straight presses, plane cutter, paint line and external 
 
         lathe but he was unable to do these jobs.  He now performs a 
 
         janitor's job on the second shift removing old wax from the floor 
 
         and then waxing the floor with new wax.   In this job he operates 
 

 
         
 
         
 
         
 
         BEAU V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   6
 
         
 
         
 
         a buffer, a wet vacuum and mops.  He also stacks chairs.  This is 
 
         the first job that he really can handle.  Russell Spensley, his 
 
         supervisor, testified that claimant performed this job well 
 
         without difficulty and that he is a good employee.  Claimant 
 
         testified that the janitor's job pays $12.00 per hour which is 
 
         approximately $3.00 less per hour then he was making previously 
 
         when he had the opportunity to work incentive pay jobs.  There 
 
         may be some incentive pay jobs at the employer's which he could 
 
         handle but he does not have the seniority to get them.  Dr. 
 
         McClenahan testified that claimant has the best job that he could 
 
         do now with his seniority.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 16, 1983 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  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).
 
         
 
              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."
 
         
 
              The opinion of the supreme court in Olson v. Goodyear 
 
         Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963) 
 

 
         
 
         
 
         
 
         BEAU V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   7
 
         
 
         
 
         cited with approval a decision of the industrial commissioner for 
 
         the following proposition:
 
         
 
              Disability * * * as defined by the Compensation Act 
 
              means industrial disability, although functional 
 
              disability is an element to be considered . . . In 
 
              determining industrial disability, consideration may be 
 
              given to the injured employee's age, education, 
 
              qualifications, experience and his inability, because 
 
              of the injury, to engage in employment for which he is 
 
              fitted. * * * *
 
         
 
              Claimant's shoulder injury was an injury to the body as a 
 
         whole.  There was no evidence that it was limited to the arm 
 
         alone (Iowa Code section 85.34(2)(m)).  Dr. Delbridge clearly 
 
         stated that this man had a rotator cuff injury and that rotator 
 
         cuff injuries are considered by the industrial people as body of 
 
         the whole injuries.  Therefore, he converted his right upper 
 
         extremity to a body as a whole rating.  Claimant's back injury is 
 
         unquestionably an injury to the body as a whole.
 
         
 
              Claimant's worse impairment is that he cannot lift his right 
 
         arm above his right shoulder or head.  The body as a whole 
 
         impairment ratings of three very competent physicians are quite 
 
         close.  Dr. Field awarded 14 percent.  Dr. Delbridge assessed 15 
 
         percent.  Dr. McClenahan determined 17 percent.  The two 
 
         orthopedic surgeons, Dr. Field and Dr. Delbridge, are extremely 
 
         close at 14 percent and 15 percent respectively.  Since they are 
 

 
         
 
         
 
         
 
         BEAU V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   8
 
         
 
         
 
         orthopedic surgeons, then their ratings would have to be given 
 
         the greatest weight.  As far as impairment ratings go there is a 
 
         common misconception that industrial disability is greater than 
 
         functional impairment and that it is an add on --- something to 
 
         be examined on top of functional impairment.  However, such is 
 
         not the case.  Industrial disability can be the same as, less 
 
         than or greater than functional impairment.  Lawyer & Higgs, Iowa 
 
         workers' Compensation -- Law & Practice, section 13-5, page 116.
 
         
 
              Claimant is 40 years old, has the benefit of a high school 
 
         education, and has average or better intelligence.  It is 
 
         possible for him to learn new skills within his limitations if 
 
         necessary or if he chooses to do so.  His employer has provided 
 
         him with extensive and prolonged medical care.  The employer has 
 
         provided several jobs for claimant until claimant found one which 
 
         he could do without difficulty and still earn a good income.  
 
         However, his compensation has been reduced and he has lost the 
 
         opportunity to earn incentive pay at the present time.  There may 
 
         be some remote possibility of incentive pay in the distant future 
 
         if his seniority is sufficient for one of these jobs.
 
         
 
              Claimant testified that he is now earning $12.00 per hour 
 
         and this is $3.00 per hour less than he was previously earning 
 
         with incentive pay.  Apparently then he was earning approximately 
 
         $15.00 per hour and has suffered a $3.00 per hour loss of 
 
         income.
 
         
 
              The fact that the claimant had prior congenital back 
 
         anomalies is of no consequence because he was having no back 
 
         problems prior to the injury of September 16, 1983.
 
         
 
              Based on the foregoing considerations, it is determined that 
 
         claimant has sustained an industrial disability of 20 percent of 
 
         the body as a whole.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That claimant was injured on September 16, 1983 when a 1200 
 
         pound gear came off of his machine, hit him in the right shoulder 
 
         and forced his back against a hopper.
 
              That the injury aggravated a preexisting congenital 
 
         spondylolysis and spondylolythesis condition in his back.
 
         
 
              That the injury damaged his right shoulder and rotator 
 
         cuff.
 
         
 
              That three physicians rated the claimant's impairment at 14 
 
         percent, 15 percent and 17 percent of the body as a whole for 
 
         both the right shoulder injury and the back injury.
 
         
 
              That claimant's worst impairment is his ability to raise his 
 
         right arm above his shoulder or head.
 
         
 
              Claimant is age 40, has a high school education, average or 
 
         better intelligence, and is currently working for the same 
 
         employer for $12.00 per hour.
 

 
         
 
         
 
         
 
         BEAU V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page   9
 
         
 
         
 
         
 
              That claimant previously earned approximately $15.00  per 
 
         hour doing incentive pay jobs which results in an approximate 
 
         $3.00 per hour loss of income.
 
         
 
              That claimant is currently unable to perform incentive pay 
 
         jobs and the possibility of obtaining an incentive pay job is not 
 
         imminent.
 
         
 
              That claimant sustained a 20 percent industrial disability 
 
         to the body as a whole.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously mentioned, the following conclusions 
 
         of law are made:
 
         
 
              That claimant has sustained industrial disability to the 
 
         body as a whole for the injury to his right shoulder and the 
 
         injury to his back caused by the accident of September 16, 1983.
 
         
 
              That claimant is entitled to 20 percent permanent partial 
 
         disability to the body as a whole as industrial disability.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at the rate of three 
 
         hundred four and 21/100 dollars ($304.21) per week in the total 
 
         amount of thirty thousand four hundred twenty-one and 10/100 
 
         dollars ($30,421.10) commencing on May 30, 1984.
 
         
 
              That the defendant pay the accrued benefits in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That defendant will pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33. However, all of 
 
         the costs attached to the prehearing report are not allowed.  The 
 
         medical report from Medical Associates of January 5, 1985 in the 
 
         amount of fifteen and no/100 dollars ($15.00) and another medical 
 
         report from Medical Associates dated March 22, 1985 in the amount 
 
         of fifteen and no/100 dollars ($15.00) are both allowed.  The 
 
         item to Westfall Reporting for deposition on January 22, 1986 in 
 
         the amount of eighty-two and no/100 dollars ($82.00) is allowed.  
 
         These costs total one hundred twelve and no/100 dollars 
 
         ($112.00). The other items for copies, postage, long distance 
 
         telephone tolls and zerox expense are denied.
 
         
 
              The defendant is to file claim activity reports as requested 
 
         by this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 27th day of May, 1987.
 
         
 
         
 

 
         
 
         
 
         
 
         BEAU V. JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY
 
         Page  10
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           WALTER R. McMANUS, JR.
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David A. Lemanski
 
         Attorney at Law
 
         200 Security Bldg.
 
         Dubuque, Iowa 52001
 
         
 
         Mr. Leo A. McCarthy
 
         Mr . Chadwyn D. Cox
 
         Attorneys at Law
 
         222 Fischer Building
 
         P. 0. Box 239
 
         Dubuque, Iowa 52004-0239
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1800; 1803.1
 
                                               Filed May 27, 1987
 
                                               WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         THOMAS BEAU,
 
         
 
              Claimant,
 
                                                  FILE NO. 765725
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         JOHN DEERE DUBUQUE WORKS
 
         OF DEERE & COMPANY,                      D E C I S I 0 N
 
         
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1803.1
 
         
 
              Rotator cuff injury was determined to be a body as a whole 
 
         injury rather than a scheduled member injury.
 
         
 
         1800
 
         
 
              Claimant injured his right shoulder and back when a 1200 
 
         pound gear came off of his machine.  He was given extensive 
 
         treatment and therapy with the result that he could not lift his 
 
         right dominant arm above his shoulder.  He tried to return to 
 
         several incentive jobs but could not do them and ended up 
 
         maintaining floors for the employer.  He was making $15.00 before 
 
         the injury and figured he suffered a loss of $3.00 per hour.  
 
         Claimant allowed 20 percent permanent partial disability as 
 
         industrial disability.
 
 
 
         
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        BRENDA BENSON,
 
        
 
            Claimant,                                   File No. 765734
 
        
 
        vs.                                                    R U L I N G
 
        
 
        GOOD SAMARITAN CENTER,
 
        
 
            Employer,                                        O N
 
        
 
        and
 
                                                       R E H E A R I N G
 
        ZURICH-AMERICAN INSURANCE
 
        COMPANIES,                                          F I L E D
 
        
 
            Insurance Carrier,                           OCT. 18, l989
 
            Defendants
 
                                                       INDUSTRIAL SERVICES
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
             Defendants have requested a rehearing limited to the question 
 
             of when the obligation to pay interest on the award of benefits to 
 
             claimant shall begin. The rehearing request was granted.
 
        
 
                                      ISSUES
 
        
 
             The sole issue on rehearing is when defendants' obligation to 
 
             pay interest on claimant's permanent partial disability award 
 
             begins.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
             Claimant was injured on May 6, 1984. Claimant was paid 24 
 
             weeks of healing period/temporary total disability benefits by 
 
             defendants up through October 22, 1984.
 
        
 
            Claimant did not see a physician in connection with her 
 
        injury again until April of 1986. On May 12, 1986, claimant went 
 
        to Dr. Halter. On July 1, 1986, claimant filed her petition. It 
 
        was not until February 2, 1987 that claimant obtained a rating of 
 
        permanent physical impairment. The deputy's arbitration decision 
 
        determined that claimant's healing period ended October 26, 1984 
 
        and claimant's entitlement to permanent partial disability 
 
        benefits began on that date. The arbitration decision awarded 
 
        claimant 125 weeks of permanent partial disability benefits from 
 
        October 26, 1984. Defendants appealed. The appeal decision 
 
        awarded claimant 75 weeks of permanent partial disability 
 
        benefits commencing October 25, 1984. The appeal decision 
 
        ordered defendants to pay interest on any unpaid benefits from 
 
        October 25, 1984. Defendants' rehearing is limited to the 
 
        interest question.
 
        
 
                                      APPLICABLE LAW
 
        
 
            Section 85.30, Code of Iowa, provides:
 
        
 
             Compensation payments shall be made each week beginning on 
 

 
        
 
 
 
 
 
             the eleventh day after the injury, and each week thereafter 
 
             during the period for which compensation is payable, and if 
 
             not paid when due, there shall be added to the weekly 
 
             compensation payments, interest at the rate provided in 
 
             section 535.3 for court judgments and decrees. (Emphasis 
 
             added.)
 
        
 
                                      ANALYSIS
 
        
 
            The appeal decision in this case ordered defendants, Good 
 
        Samaritan Center and Zurich-American Insurance Companies, to pay 
 
        interest on unpaid weekly benefits from October 25, 1984, when 
 
        claimant's permanent disability began. Defendants have requested 
 
        rehearing on whether they are liable to claimant for interest on 
 
        unpaid permanent partial disability benefits covering the period 
 
        of time prior to the filing of the petition for benefits.
 
        
 
            In essence, although the case is in arbitration, defendants 
 
        request application of the approach adopted for review-reopening 
 
        cases in Dickenson v. John Deere Products Engineering, 395 N.W.2d 
 
        644, 648 (Iowa App. 1986). Dickenson was decided by the Iowa 
 
        Court of Appeals on June 25, 1986. The court held that interest 
 
        on claimant's permanent partial disability award should have 
 
        commenced on the date when the claimant commenced his action for 
 
        review-reopening of his claim. In reaching this conclusion, the 
 
        court of appeals considered Bousfield v. Sisters of Mercy, 249 
 
        Iowa 64, 86 N.W.2d 109 (1954).
 
        
 
            In Bousfield, the supreme court held that a claimant awarded 
 
        additional benefits upon review-reopening was entitled to 
 
        interest only from the date of the decision awarding further 
 
        benefits. However, in Dickenson the court noted that Bousfield 
 
        was decided prior to amendments of both section 85.30 and 535.3, 
 
        Code of Iowa. The court therefore found Bousfield not 
 
        controlling.
 
        
 
            In Dickenson, the court of appeals rejected the employer's 
 
        argument that interest should only begin on the date of the 
 
        industrial commissioner's decision. However, the court of 
 
        appeals also rejected Dickenson's argument that interest should 
 
        accrue from the end of the healing period.
 
        
 
            The court of appeals concluded by stating: "We find the 
 
        better rule in review-reopening proceedings is to begin interest 
 
        payments on the date the claimant files the petition for 
 
        review-reopening." Dickenson, at 649.
 
        
 
             Four months later, on October 15, 1986, the Supreme Court of 
 
             Iowa decided Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). Teel 
 
             was injured in 1974. The extent of his disability was not known, 
 
             however, until after his last surgery in 1980. He returned to 
 
             work in February of 1981.
 
        
 
            Teel filed a claim in review-reopening. After Teel was 
 
        awarded permanent partial disability benefits, the defendants 
 
        sought a declaratory judgment as to the date the interest was to 
 
        accrue. Both the deputy industrial commissioner and the 
 
        commissioner ruled that interest accrued from the date of the 
 
        award, but this ruling was reversed on appeal to the supreme 
 
        court, which held that interest accrued from the end of the 
 
        healing period.
 
        
 
            Although the case sub judice is in arbitration and Teel was 
 
        in review-reopening, factually both cases are very similar. In 
 
        Teel, defendants promptly paid claimant all benefits that were 
 
        known at the time. In the present case, defendants promptly paid 
 

 
        
 
 
 
 
 
        claimant all benefits that were known at the time. In Teel, 
 
        claimant was off work for a period of time and then returned to 
 
        work. In the present case, claimant was off work for a period of 
 
        time and then returned to work. It is noted that interest was 
 
        awarded from when claimant first returned to work, even though 
 
        claimant was absent from work on subsequent occasions for 
 
        surgical operations.
 
        
 
            The supreme court noted in Teel that under section 85.34(1), 
 
        an employee's healing period terminates when he returns to work, 
 
        and permanent disability compensation payments became "due" at 
 
        that point, and accordingly the interest on Teel's award began to 
 
        accrue when he returned to work. The supreme court stated: 
 
        "Thus, the time when an employee's healing period is terminated 
 
        is the time when disability payments become due.... Accordingly, 
 
        the interest on this employee's award for permanent partial 
 
        disability became due when he returned to work...." Teel, at 
 
        407.
 
        
 
            After reaching this conclusion, the supreme court then went 
 
        on to say:
 
        
 
             Moreover, there is no question the employee in this case 
 
             suffered some disability as a result of his injuries. The 
 
             problem occurred in determining how much it was. Had the 
 
             medical community been able to answer that question without 
 
             further treatment, he clearly would have been entitled to 
 
             compensation when he first returned to work. Thus, the 
 
             legislature could conclude that when the extent of a 
 
             disability is unknown until after treatment, the employer 
 
             should pay interest for the period between the termination 
 
             of the healing period and the award. After all, the 
 
             employer in effect is holding the employee's money, and 
 
             presumably earning interest on it. By paying this amount 
 
             back the employer is only returning money it does not 
 
             rightfully own.
 
             
 
             Teel, at 407. (Emphasis in original.)
 
             
 
             Review-reopening cases exist in two forms. A 
 
             review-reopening case may be based on a change of condition 
 
             occurring subsequent to a prior award or agreement of settlement. 
 
             Additionally, a review-reopening may be based on a prior 
 
             memorandum of agreement if the injury occurred before July 1, 
 
             1982. Both Teel and Dickenson were review-reopening cases based 
 
             on prior memorandums of agreement. Teel was decided by the Iowa 
 
             Supreme Court four months later than Dickenson. However, Teel 
 
             does not expressly overrule Dickenson. Dickenson lays down a 
 
             specific holding that "We find the better rule in 
 
             review-reopening proceedings is to begin interest payments on the 
 
             date the claimant files the petition for review-reopening." 
 
             Dickenson, at 649. Yet Teel, also a review-reopening case, 
 
             applies a different approach and awards interest from the end of 
 
             the healing period.
 
        
 
            Defendants urge that Teel does not overrule Dickenson, but 
 
        rather supplements it. Defendants would maintain that Teel 
 
        establishes an exception to the rule of Dickenson. Defendants 
 
        urge that Dickenson requires interest only from the date of the 
 
        petition, except where the defendants knew or should have known 
 
        at an earlier point in time that permanency had resulted (Teel). 
 
        Defendants then conclude that since they had no notice of 
 
        permanency, they fall under Dickenson and not Teel. Defendants 
 
        place emphasis on the following:
 
        
 
                  Moreover, there is no question the employee in this case 
 

 
        
 
 
 
 
 
                      suffered some disability as a result of his injuries.... 
 
                      Thus, the legislature could conclude that when the extent of 
 
                      a disability is unknown until after the treatment, the 
 
                      employer should pay interest for the period between the 
 
                      termination of the healing period and the award. (Emphasis 
 
                      in original.)
 
             
 
        Teel, at 407.
 
        
 
             Defendants argue that the converse of this statement is as 
 
             follows: when an employer has no indication of permanent 
 
             disability, the employer is not liable for interest between the 
 
             healing period and the award. However, this is an incorrect 
 
             reading of the quoted passage. Teel refers not to a lack of 
 
             knowledge of permanency on the part of the employer, but on the 
 
             part of the medical profession. This is confirmed by the third 
 
             sentence of the paragraph in question: "Had the medical 
 
             community been able to answer that question (the extent of 
 
             permanent disability) without further treatment, he clearly would 
 
             have been entitled to compensation when he first returned to 
 
             work." (Emphasis added.) Teel, at 407. The supreme court 
 
             recognized that Teel's actual medical condition was not 
 
             determinable until a later point in time. When his permanent 
 
             disability was finally determined, interest was awarded from its 
 
             onset (the end of the healing period).
 
        
 
             If the law applicable to review-reopening cases were 
 
             applicable to the case sub judice, then Teel, rather than 
 
             Dickenson, would apply to this case.
 
        
 
            However, Teel is not directly applicable to these 
 
        proceedings, as the present case is an arbitration case and not 
 
        review-reopening. The court of appeals in Dickenson explicitly 
 
        confined its ruling to review-reopening cases. The supreme court 
 
        in Teel, although not expressly limiting its holding to 
 
        review-reopening cases, was nevertheless dealing with a 
 
        review-reopening case. There is no language in either Dickenson 
 
        or Teel that indicates applicability to arbitration cases. Thus, 
 
        the question of when interest should begin to accrue in this 
 
        arbitration case will be determined without reliance on Dickenson 
 
        or Teel. Instead, the question of when interest begins to accrue 
 
        will be based on an analysis of section 85.30 and Farmer's 
 
        Elevator Co. v. Manning, 286 N.W.2d 174 (Iowa 1979), which was a 
 
        case in arbitration.
 
        
 
            In Farmers Elevator, the employer denied liability. The 
 
        court rejected the employer's argument that interest should 
 
        commence only from the date of the district court affirmance of 
 
        the agency's decision, and said that section 85.30 and other 
 
        sections expressed a legislative intent that interest on unpaid 
 
        compensation be computed from the date the payment becomes due, 
 
        starting with the eleventh day after the injury. There is no 
 
        discussion in that opinion going to when permanency became evident 
 
        to the employer.
 
        
 
            Section 85.30 states that if compensation benefits are not 
 
        paid "when due," interest thereon shall be paid. Section 85.30 
 
        does not by its language limit itself to that point in time when 
 
        defendants are put on notice that permanent compensation will be 
 
        due and owing, but rather states that the obligation to pay 
 
        interest begins to accrue when compensation owing is not paid "when 
 
        due." Thus, both Iowa Code section 85.30 and the Farmers Elevator 
 
        case dictate that interest in this case is due on unpaid permanent 
 
        partial disability benefits from when they became due at the end of 
 
        the healing period.
 
        
 

 
        
 
 
 
 
 
            In arguing that defendants acted in good faith, defendants 
 
        misinterpret the nature of the duty to pay interest under section 
 
        85.30. Interest is not a penalty, such as the penalty 
 
        contemplated in section 86.13 for unreasonable delay in the 
 
        payment of benefits. Defendants are not being assessed interest 
 
        because they unreasonably delayed payment of permanent partial 
 
        disability benefits to claimant. Defendants are being assessed 
 
        interest because from the date of claimant's permanent disability 
 
        (the end of her healing period) until the compensation is paid, 
 
        defendants had the beneficial use of the compensation funds 
 
        claimant became entitled to at the end of her healing period.
 
        
 
             Thus, the fact that defendants acted in good faith and 
 
             reasonably did not realize that an obligation for permanent 
 
             disability compensation was accruing is not relevant. Claimant's 
 
             compensation for her loss of earning capacity during this period 
 
             of her life was in defendants' hands earning money for defendants 
 
             instead of for claimant. There is no allegation that defendants 
 
             unreasonably withheld these funds. If such an allegation were 
 
             made and proven, then a penalty under section 86.13 might be 
 
             appropriate. Defendants commendably paid the obligations known at 
 
             the time promptly. But while doing so may protect defendants from 
 
             a claim for penalty under section 86.13, it does not entitle them 
 
             to the interest they earned on claimant's money during the time 
 
             claimant's permanency existed but was as yet undetermined. 
 
             Claimant's permanent disability did not begin on the date she 
 
             filed her petition, or when she received her rating of permanency. 
 
             Claimant's permanent disability was found to have begun earlier, 
 
             on October 25, 1984, at the end of her healing period, and both 
 
             compensation payments and the interest thereon began to accrue at 
 
             that time. To find that claimant's permanent loss of earning 
 
             capacity and compensation therefor became "due" on October 25, 
 
             1984, but that interest on that compensation is not owing until a 
 
             later point in time would directly contradict the plain language 
 
             of section 85.30.
 
        
 
            Finally, it is noted that the primary purpose of workers' 
 
        compensation laws are to benefit working persons and should be 
 
        liberally construed in favor of injured employees. Doerfer 
 
        Division of CCA v. Nichols, 359 N.W.2d 428, at 432 (Iowa 1984). 
 
        It is therefore concluded that in this case of arbitration under 
 
        section 85.30, claimant is entitled to interest on her permanent 
 
        partial disability award from October 25, 1984, the date on which 
 
        her healing period ended and her permanent partial disability 
 
        began.
 
        
 
                                 CONCLUSION OF LAW
 
        
 
             Claimant is entitled to interest on the award of permanent 
 
             partial disability benefits from the end of the healing period 
 
             (October 25, 1984).
 
        
 
                                      ORDER
 
        
 
             THEREFORE, it is ordered:
 
        
 
            That defendants shall pay interest on unpaid portions of the 
 
        award of permanent partial disability benefits from October 25, 
 
        1984.
 
        
 
            Signed and filed this 18th day of October, 1989.
 
             
 
             
 
             
 
             
 
                                            DAVID E. LINQUIST
 

 
        
 
 
 
 
 
                                         INDUSTRIAL COMMISSIONER
 
        
 
        
 
        Copies To:
 
        
 
        Mr. James L. Burns
 
        Attorney at Law
 
        301 W. Broadway
 
        Decorah, Iowa 52101
 
        
 
        Mr. E. J. Giovannetti
 
        Attorney at Law
 
        Terrace Center, Ste. 111
 
        2700 Grand Avenue
 
        Des Moines, Iowa 50312
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BRENDA BENSON,
 
         
 
              Claimant,
 
                                                     FILE NO. 765734
 
         VS.
 
                                                  A R B I T R A T I 0 N
 
         GOOD SAMARITAN CENTER,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         ZURICH-AMERICAN INS. COS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Brenda 
 
         Benson, claimant, against Good Samaritan Center, employer 
 
         (hereinafter referred to as Good Samaritan), and Zurich-American 
 
         Insurance Companies, insurance carrier, defendants, for benefits 
 
         as a result of an alleged injury on May 6, 1984.  On May 19, 
 
         1987, a hearing was held on claimant's petition and the matter 
 
         was considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and the 
 
         following witnesses: Cuddy Bernau, Thomas Benson, Sue Gibbs and 
 
         Linda Dodson.  The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.  All of the evidence 
 
         received at the hearing was considered in arriving at this 
 
         decision except claimant's exhibits 4 and 5.  These exhibits are 
 
         affidavits from co-workers.  Although heresay evidence is 
 
         generally admissible, admissibility alone does not entitle the 
 
         evidence to equal weight with other evidence.  It is obvious 
 
         defendants had no opportunity to cross-exam the authors of these 
 
         exhibits.  None of these witnesses were properly identified in 
 
         the prehearing answers to interrogatories and the affidavits were 
 
         obtained only a few days before the hearing.  DeAnna Crain Settje 
 
         was identified as only DeAnna Crain in the answers to 
 
         interrogatories and there apparently was no supplementation of 
 
         this answer before hearing.  Furthermore, the affidavits 
 
         contained additional heresay from third persons.  Consequently, 
 
         this is not the type of evidence a reasonable person would rely 
 
         upon in the conduct of their important affairs as envisioned 
 
         under Iowa Code section 17A.14(l). Therefore, no weight was given 
 
         to these affidavits in determining the issues of this case.
 
         
 
              The prehearing report contains the following 
 

 
         
 
         
 
         
 
         BENSON V. GOOD SAMARITAN CENTER
 
         Page   2
 
         
 
         
 
         stipulations:
 
         
 
              1.  Claimant is not seeking temporary total disability or 
 
         healing period benefits in this proceeding;
 
         
 
              2.  Claimant's rate of compensation in the event of an 
 
         award of benefits from this proceeding shall be $71.84 per 
 
         week; and,
 
         
 
              3.  The medical expenses for which claimant seeks 
 
         reimbursement in this proceeding are fair and reasonable and 
 
         causally connected to the condition upon which claimant is 
 
         basing her claim in this proceeding but that the issue of their 
 
         causal connection to a work injury was an issue to be decided 
 
         herein.
 
         
 
              The prehearing report submits the following issues for 
 
         determination in this decision:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of her employment with Good Samaritan;
 
         
 
             II.  Whether there is a causal relationship between the 
 
         work injury and the claimed disability;
 
         
 
            III.  The extent of claimant's entitlement to weekly 
 
         disability benefits; and,
 
         
 
             IV.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 

 
         
 
         
 
         
 
         BENSON V. GOOD SAMARITAN CENTER
 
         Page   3
 
         
 
         
 
              From her demeanor while testifying, claimant appeared to be 
 
         truthful.
 
         
 
              2.  Claimant was employed by Good Samaritan from February, 
 
         1984 to May, 1984 as a certified nurse's aide.
 
         
 
              There was little dispute among the parties as to the nature 
 
         of claimant's part-time employment with Good Samaritan.  Claimant 
 
         testified that her duties consisted of care and feeding of 
 
         elderly patients in a nursing home environment.  This regularly 
 
         involved the physical handling and lifting of patients.  Linda 
 
         Dodson, a co-worker, and Sue Gibbs, the bookkeeper, testified 
 
         that it was the policy of Good Samaritan to provide assistants to 
 
         nurse's aides in the moving of patients.
 
              3.  On or about May 6, 1984, claimant suffered an injury to 
 
         her back which arose out of and in the course of her employment 
 
         with Good Samaritan.
 
         
 
              Claimant testified that she injured her back on two 
 
         occasions during the night shift at Good Samaritan on May 6, 
 
         1984.  While lifting two patients early in the evening she felt a 
 
         dull pain in her back but the problem "seemed insignificant" at 
 
         the time.  Later that evening claimant said that she needed to 
 
         transfer a male patient from his wheelchair.  She tried to find 
 
         assistance but none was available.  Therefore, claimant stated 
 
         that she attempted to lift the patient by herself and when his 
 
         knees buckled, she experienced the patient's full weight on her 
 
         back and felt a pull in the area of her back.  After a period of 
 
         time, she told her supervisor that she could not lift anymore 
 
         that evening because her back was stiff and sore.  She asked to 
 
         fill out a report of injury but was told that everyone has sore 
 
         backs and her symptoms were not unusual.  Claimant then went 
 
         home.  Both claimant and her husband testified that she woke up 
 
         in the middle of that night with excuriating pain in her back.  
 
         Claimant stated that she tried various body positions to relieve 
 
         the pain but these efforts were not successful.
 
         
 
              4.  As a result of her work injury, claimant was absent from 
 
         work from May 6, 1984 through October 25, 1984, the date she 
 
         reached maximum healing.
 
         
 
              Claimant testified that she never returned to work at Good 
 
         Samaritan.  After approximately six days she sought treatment 
 
         from Susan Urbatsch, M.D.  Claimant was initially examined by Dr. 
 
         Urbatsch's physician's assistant who reported a history that 
 
         claimant injured her back during routine lifting of patients one 
 
         week previous.  This history also states that claimant did not 
 
         feel that the pain was significant enough to be seen but had 
 
         encountered difficulties in receiving workers' compensation 
 
         benefits without a doctor's examination.  Dr. Urbatsch's records 
 
         also indicate they were not able to perform a complete 
 
         examination due to claimant's pain complaints.  They were also 
 
         not able to take x-rays of claimant as claimant refused to lay 
 
         down on her back due to her pain complaints.
 
         
 
              Claimant takes issue to some extent with Dr. UrbatschOs 
 
         assistant's history.  She stated that her delay in seeking 
 
         treatment was caused by the fact that she felt she would improve 
 
         and that she could not afford medical treatment.  Claimant stated 
 

 
         
 
         
 
         
 
         BENSON V. GOOD SAMARITAN CENTER
 
         Page   4
 
         
 
         
 
         that she did not realize that workers' compensation benefits and 
 
         medical treatment at the expense of the employer were possible 
 
         until after she had discussed her back problems with a former 
 
         employer a few days after the incident.  Claimant also states 
 
         that she attempted to lay down for the x-ray but could not do so 
 
         only because of her pain.  Claimant also refused an orthopedic 
 
         consultation immediately after claimant's examination by Dr. 
 
         Urbatsch because she had no money and that Good Samaritan did not 
 
         offer to pay for such a consultation.  The explanations provided 
 
         by claimant for her actions appear reasonable.
 
         
 
              Dr. Urbatsch and her physician's assistant both diagnosed 
 
         that claimant was suffering from back strain after receiving 
 
         complaints from claimant of pain in both the upper and lower back 
 
         extending up to her shoulders.  Dr. Urbatsch prescribed rest, 
 
         medication and back exercises.  Claimant eventually did receive 
 
         an orthopedic consultation approximately two weeks after her 
 
         initial injury from John W. Hayden, M.D., from the Gundersen 
 
         Clinic.  Dr. Hayden likewise diagnosed muscle strain after his 
 
         examination of claimant and prescribed exercises and moist heat. 
 
          Claimant then was examined by a chiropractor, W. D. Bigler, 
 
         D.O., who took x-rays of claimant"s spine.  After the examination 
 
         by Dr. Bigler, claimant returned to the Gundersen Clinic and saw 
 
         R. J. Gall, M.D.  Dr. Gall reports that claimant had related to 
 
         him a personality conflict with the chiropractor and the 
 
         chiropractor had refused to provide her with copies of the x-rays 
 
         or examination by Dr. Hayden without payment of her bill.  Dr. 
 
         Gall gave a note to claimant asking Dr. Bigler for the x-rays.  
 
         Claimant then reported back to Dr. Hayden a few days later with 
 
         the x-rays taken by Dr. Bigler.  Dr. Hayden, after reviewing 
 
         these x-rays, found no abnormalities and continued to prescribe 
 
         heat, massage and strengthening exercises.  Claimant then sought 
 
         another evaluation of the x-rays from Dr. Meyer (first name 
 
         unknown).  Dr. Meyer declined to render an opinion or to examine 
 
         the x-rays.  Dr. Meyer advised claimant that seeking out 
 
         non-orthopedic surgeons would not be appropriate for her future 
 
         treatment.
 
         
 
              Finally, on October 25, 1984, claimant reached maximum 
 
         healing and was discharged from treatment by Dr. Hayden.  
 
         Although Dr. Hayden indicated that claimant was continuing to 
 
         have some stiffness, he felt that continuation of exercises would 
 
         resolve the problem without disability.
 
         
 
              Claimant testified that she never returned to Good Samaritan 
 
         due to the lifting requirements of the job.  She first attempted 
 
         to return to work as a waitress after being discharged by Dr. 
 
         Hayden in October, 1984 with a former employer, Cuddy Bernau.  
 
         Bernau testified that claimant had difficulties with bending and 
 
         lifting activities during the period she was employed by him.  He 
 
         stated that claimant had no such difficulties in 1980 when she 
 
         worked for him.  Claimant then worked for a Ben Franklin 
 
         Department Store as a part-time cashier and clerk.  Claimant was 
 
         required to regularly "put out stock" in this job which required 
 
         bending and lifting.  Claimant stated that she was off work for 
 
         two days following one incident of back pain at Ben Franklin 
 
         while lifting a box.  Claimant subsequently moved her residence 
 
         approximately six miles and started working as a part-time motel 
 
         maid.  Claimant testified that this work was very difficult for 
 

 
         
 
         
 
         
 
         BENSON V. GOOD SAMARITAN CENTER
 
         Page   5
 
         
 
         
 
         her due to her back problems.  She said that her back problems 
 
         were so bad and she had to make the beds on her knees because she 
 
         could not reach or bend.  Claimant left the motel employment in 
 
         October, 1985 because, according to claimant, the work was simply 
 
         too much for her.  Since leaving the motel, claimant has been 
 
         working as a part-time waitress.
 
         
 
              A co-worker of claimant, Linda Dodson, testified that she 
 
         was present during the night claimant was allegedly injured but 
 
         she could not recall claimant reporting any back pain that 
 
         evening and that if claimant had told her of such back pain she 
 
         would have told her to report the incident to her supervisor.  
 
         Sue Gibbs, the secretary/bookkeeper who handles all of the forms 
 
         for workers' compensation at Good Samaritan, stated that after 
 
         her review of the personnel file there was no report of a work 
 
         injury by claimant to anyone at Good Samaritan on the day of the 
 
         alleged incident.  Gibbs further testified that it was the policy 
 
         of Good Samaritan that employees are to notify their supervisors 
 
         of all injuries and that this policy was made known to claimant 
 
         when she was hired.  Although the testimony of Dodson and Gibbs 
 
         were important, their testimony is based primarily on a lack of 
 
         recollection and does not overcome claimant's credible testimony 
 
         that she had a work injury and that she did notify her supervisor 
 
         of such an injury.
 
         
 
              5.  The work injury of May 6, 1984 was a cause of 
 
         significant permanent partial impairment to claimant's body as a 
 
         whole.
 
         
 
              Claimant returned to Dr. Hayden in April, 1986, with 
 
         continued complaints of low and upper back pain, inability to 
 
         bend or lift and difficulty standing and sitting for prolonged 
 
         periods of time.  Claimant also complained that these symptoms 
 
         became worse in cold weather.  Dr. Hayden noted that he did not 
 
         feel that claimant had suffered permanent disability in October, 
 
         1984, but stated claimant's continuing difficulties could 
 
         possibly be related to the original work injury of May, 1984.  
 
         Dr. Hayden referred claimant to the Physical Medicine and 
 
         Rehabilitation Department at the Gundersen Clinic to regain her 
 
         range of motion.
 
         
 
              Claimant then began to receive treatment from Susan K. 
 
         Halter, M.D., a specialist in the field of physical medicine and 
 
         rehabilitation.  After her examination of claimant, Dr. Halter 
 
         diagnosed myofascial pain syndrome and felt that claimant's 
 
         problems were attributable to the original work injury in this 
 
         case.  Although Dr. Halter felt that the prognosis is good, 
 
         claimant will continue to have chronic intermittent pain.  Dr. 
 
         Halter felt that claimant has suffered a five percent permanent 
 
         impairment to the body as a whole as a result of the May, 1984 
 
         work injury.  Dr. Halter recommends that claimant continue under 
 
         her care but noted that claimant was unable to do so because of 
 
         the cost.
 
              Claimant stated that she has no previous medical history of 
 
         any chronic back problems and no functional impairment or 
 
         disability due to back problems before the work injury herein.  
 
         Claimant was involved in a car accident in 1962 which injured her 
 
         cervical spine but she testified that she fully recovered from 
 
         this incident which primarily involved a broken nose.  X-rays of 
 

 
         
 
         
 
         
 
         BENSON V. GOOD SAMARITAN CENTER
 
         Page   6
 
         
 
         
 
         the cervical spine after this accident revealed no 
 
         abnormalities.
 
         
 
              In February, 1987, claimant was examined by C. H. Strutt, 
 
         D.C., who opined that claimant has permanent impairment due to 
 
         the work injury but that it would be reduced upon further 
 
         treatment.  Dr. Strutt also felt that claimant has some prior 
 
         existing disability arising from the 1962 car accident when she 
 
         was 12 years old.
 
         
 
              The greater weight of the evidence presented set forth above 
 
         demonstrates that claimant has significant permanent impairment 
 
         as a result of the original work injury in May, 1982, due to her 
 
         chronic pain from bending, lifting, standing and sitting for 
 
         prolonged periods of time.  Dr. Hayden states that claimant's 
 
         current condition is possibly work related.  Dr. Halter 
 
         definitely opines that claimant's current symptoms are causally 
 
         connected to the original work injury.  Dr. Strutt likewise found 
 
         permanent impairment as a result of the work injury.  Regardless 
 
         of the existence of the car accident, claimant has shown that the 
 
         work incident of May 6, 1984 was at least one contributing 
 
         substantial factor, if not the only factor, which precipitated 
 
         her chronic back problems.
 
         
 
              6.  The work injury of May 6, 1984, is the cause of a 25 
 
         percent permanent loss of earning capacity.
 
         
 
              Claimant's past employment primarily consists of unskilled 
 
         work requiring either heavy lifting, repetitive lifting, bending, 
 
         twisting, or stooping along with prolonged sitting and standing. 
 
          Claimant has worked as a nurse's aide, short order cook, 
 
         waitress, factory worker, and retail store clerk.  The injury in 
 
         this case prevents claimant from returning to work as a nurse's 
 
         aide and most other jobs she has held in the past.  Such fact is 
 
         evidence of a substantial permanent loss of earning capacity as a 
 
         result of the work injury.
 
         
 
              Claimant testified that she has made reasonable efforts to 
 
         find suitable replacement employment.  She has shown no desire to 
 
         voluntarily leave the labor market and in fact has demonstrated a 
 
         substantial financial need to remain in the work force.  However, 
 
         the type of jobs that she is able to perform are limited due to 
 
         her chronic back problems.
 
         
 
              Claimant has suffered a significant permanent loss in actual 
 
         earnings from employment due to the work injury.  However, the 
 
         loss is less than would be expected of a person who is unable to 
 
         return to heavy physical labor.  Claimant's past employment 
 
         history involves only unskilled or semi-skilled jobs at or near 
 
         minimum wage.  Her job since the work injury have similarly 
 
         involved positions at the unskilled or semi-skilled level at or 
 
         near minimum wage.  However, the part-time jobs which pay the 
 
         best in claimant's past history has involved heavier work which a 
 
         claimant can no longer perform.
 
         
 
              Claimant is 36 years of age, has a high school education 
 
         with an above average grade level.  Claimant appears to have high 
 
         potential for successful vocational rehabilitation but she is 
 
         financially unable to pursue such efforts and no,opportunity for 
 

 
         
 
         
 
         
 
         BENSON V. GOOD SAMARITAN CENTER
 
         Page   7
 
         
 
         
 
         such vocational rehabilitation has been offered by defendants.
 
         
 
              Finally, the award herein was reduced because there was a 
 
         consensus among physicians in this case that claimant's 
 
         disability will improve with further treatment.  If defendants, 
 
         however, fail to provide such reasonable treatment in the future, 
 
         especially the treatment envisioned by Dr. Halter, or if she 
 
         fails to improve following such treatment, this agency is 
 
         available to review the matter at a later date.
 
         
 
              7.  Claimant has not demonstrated that the two expenses for 
 
         which she desires reimbursement constitutes reasonable medical 
 
         treatment of her work injury.
 
         
 
              In the prehearing report, defendants stipulated that the 
 
         expenses at the Gundersen Clinic, exhibit 1, in the amount of 
 
         $22.65 were causally connected to the condition upon which she 
 
         was basing her claim in this proceeding.  Claimant testified that 
 
         this treatment was for a kidney condition which she felt was 
 
         related to the original work injury.  The only physician 
 
         rendering an opinion on the matter, Dr. Halter, stated that she 
 
         does not know if these problems are work related.  Therefore, 
 
         claimant has not shown that the kidney or urinary tract condition 
 
         was related to the original work injury.
 
         
 
              Claimant also requests reimbursement for the evaluation by 
 
         Dr. Strutt.  Claimant has not shown that this evaluation by a 
 
         non-orthopedic surgeon constitutes reasonable treatment of the 
 

 
         
 
         
 
         
 
         BENSON V. GOOD SAMARITAN CENTER
 
         Page   8
 
         
 
         
 
         work injury.  Dr. Strutt was apparently only asked to evaluate 
 
         disability for the purposes of this litigation.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The foregoing findings of fact were made under the following 
 
         principles of law:
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  An employer takes an employee subject to any 
 
         active of dormant health impairments, and a work connected injury 
 
         which more than slightly aggravates the condition is considered 
 
         to be a personal injury.  Ziegler v. United States Gypsum Co., 
 
         252 Iowa 613, 620, 106 N.W.2d 591 (1960) and cases cited 
 
         therein.
 
         
 
              II.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the' 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer, Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 

 
         
 
         
 
         
 
         BENSON V. GOOD SAMARITAN CENTER
 
         Page   9
 
         
 
         
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, although a finding was  made  
 
         causally connecting the work injury to claimant's permanent 
 
         functional impairment to her body as a whole, such a finding does 
 
         not, as a matter of law, automatically entitle claimant to 
 
         benefits for permanent disability.  The extent to which this 
 
         physical impairment results in disability was examined under the 
 
         law set forth below.
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  As the claimant has shown that the work 
 
         injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 99 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              No apportionment of loss of earning capacity between 
 
         claimant's preexisting condition and the work injury is made in 
 
         the findings of fact because such an apportionment is proper only 
 
         when there was some ascertainable disability which existed 
 
         independently before the injury occurred.  Varied Enterprises, 
 
         Inc. v. Sumner, 353 N.W.2d 407 (Iowa 1984).  There was no 
 
         showing that claimant had suffered a disability prior to the 
 
         alleged work injury in this case.
 
         
 
              At the prehearing conference in this case, claimant 
 
         indicated that she was not relying upon the so-called "odd-lot" 
 
         doctrine under the holding in Guyton v. Irving Jensen Co., 373 
 

 
         
 
         
 
         
 
         BENSON V. GOOD SAMARITAN CENTER
 
         Page  10
 
         
 
         
 
         N.W.2d 101, 105 (Iowa 1985).  It is the policy of this agency 
 
         that such a theory cannot be invoked by claimant without prior 
 
         notice to defendants at the prehearing conference.
 
         
 
              Based upon a finding of a 25 percent loss of earning 
 
         capacity or industrial disability as a result of an injury to the 
 
         body as a whole, claimant is entitled, as a matter of law, to 125 
 
         weeks of permanent partial disability benefits under Iowa Code 
 
         section 85.34(2)(u) which is 25 percent of the 500 weeks 
 
         allowable for an injury to the body as a whole in that 
 
         subsection.
 
         
 
              It was found that claimant had reached maximum healing on 
 
         October 25, 1984.  Healing period benefits terminate and 
 
         permanent partial disability benefits begin at that time pursuant 
 
         to Iowa Codes section 85.34(l).
 
         
 
              Reports submitted to this agency contained in the agency 
 
         file for this injury indicate that claimant has not been paid 
 
         permanent partial disability benefits.  Claimant is not seeking 
 
         additional healing period benefits.
 
         
 
              III.  Employers are obligated to furnish all reasonable 
 
         medical services for treatment of work injuries under Iowa Code 
 
         section 85.27.
 
         
 
              Although claimant may be provided a second opinion as to 
 
         disability from a physician of claimant's own choice under Iowa 
 
         Code section 85.39, such an issue was not presented to the 
 
         undersigned in the prehearing report or in the hearing assignment 
 
         order prepared subsequent to the prehearing conference in this 
 
         case.  The question submitted to the undersigned is whether the 
 
         evaluation by Dr. Strutt was reasonable medical treatment.  Dr. 
 
         Strutt's report clearly states that his examination was made for 
 
         the sole purpose of evaluating claimant's disability rather than 
 
         for treatment.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay claimant one hundred twenty-five 
 
         (125)     weeks of permanent partial disability benefits at the 
 
         rate of seventy-one and 84/100 dollars ($71.84) per week from 
 
         October 26, 1984.
 
         
 
              2.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              3.  Defendants shall pay interest on benefits awarded herein 
 
         from October 26, 1984.
 
         
 
              4.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              5.  Defendants shall file activity reports upon payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 28th day of August, 1987.
 

 
         
 
         
 
         
 
         BENSON V. GOOD SAMARITAN CENTER
 
         Page  11
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James Burns
 
         Attorney at Law
 
         301 West Broadway
 
         P. 0. Box 28
 
         Decorah, Iowa 52101
 
         
 
         Mr. E. J. Giovannetti
 
         Attorney at Law
 
         Suite 111, Terrace Center
 
         2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1803
 
                                                   Filed August 28, 1987
 
                                                   LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         BRENDA BENSON,
 
         
 
              Claimant,
 
                                                  FILE NO. 765734
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         GOOD SAMARITAN CENTER,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         ZURICH-AMERICAN INS. COS.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              A nurse's aide was awarded 25 percent permanent partial 
 
         disability benefits as a result of a back injury at work.  Her 
 
         industrial disability award was reduced to some extent because 
 
         the impact on her actual earnings did not appear to be large due 
 
         to the fact that she was a part-time employee both before and 
 
         after the work injury in jobs which paid at or near the minimum 
 
         wage.
 
 
 
         
 
 
        
 
 
 
 
 
        
 
        
 
                              
 
        
 
        
 
                                              3800
 
                                              Filed October 18, 1989
 
                                              DAVID E. LINQUIST
 
        
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        BRENDA BENSON
 
        
 
            Claimant                               File No. 765734
 
        
 
        vs.
 
                                                      R U L I N G
 
        GOOD SAMARITAN CENTER,
 
        
 
            Employer,                                    O N
 
        
 
        and
 
                                                   R E H E A R I N G
 
        ZURICH-AMERICAN INSURANCE
 
        COMPANIES,
 
        
 
            Insurance Carrier,
 
            Defendants
 
        
 
        
 
        3800
 
        
 
         Claimant was awarded permanent partial disability. The 
 
        record established that claimant was paid temporary total 
 
        disability benefits to the extent known at the time, but later 
 
        claimant found out her condition was permanent and received a 
 
        rating of impairment. The arbitration decision established the 
 
        onset of permanency, and ordered interest from that date. 
 
        Deputy's decision affirmed on appeal with modifications as to 
 
        amount of permanent partial disability entitlement. Defendants 
 
        asked for a rehearing limited to the question of when interest 
 
        began to accrue.
 
        
 
         On rehearing, it was held that in arbitration cases, Teel 
 
        and Dickenson, both review-reopening cases, were not controlling. 
 
        Under Farmer's Elevator, an arbitration case, interest was 
 
        awarded from the end of the healing period. Discussion appears 
 
        in the decision analyzing Teel and Dickenson, since defendants 
 
        urged application of the Dickenson approach or awarding interest 
 
        from the filing of the petition in review-reopening cases. 
 
        Defendants' "good faith" under argument under Teel that interest 
 
        should not accrue until employer knew some permanency had 
 
        resulted, was rejected. Interest under section 85.30 differs 
 
        from penalty under 86.13, and good or bad faith is irrelevant. 
 
        Claimant was entitled to interest on her compensation from when 
 
        it was "due" under section 85.30, i.e. from the end of the 
 
        healing period.
 
        
 
        
 
        
 
        
 
        
 

 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
                                                                                                                  
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
                                                                                     
 
        
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the Iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ESTHER M. PHILLIPS,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 765826
 
            IOWA METHODIST MEDICAL        :
 
            CENTER,                       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                        
 
            
 
                              statement of the case
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            claimant running healing period benefits and medical 
 
            expenses.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing and joint exhibits 1 through 6.  Both 
 
            parties filed briefs on appeal.  Defendants' reply brief was 
 
            filed after an extension to file the brief had been denied 
 
            and the reply brief was not considered.
 
            
 
                                      issue
 
            
 
                 The defendants state the issues on appeal are:
 
            
 
                   I.  Do the facts and circumstances in this case 
 
                 establish an open healing period continuing now 
 
                 more than five years after the date of the injury?
 
            
 
                  II.  What permanent partial disability resulted 
 
                 from and is causally connected to the alleged 
 
                 injury of May 21, 1984?
 
            
 
                 III.  Should the Defendants be required to pay for 
 
                 clearly unauthorized medical care, once they have 
 
                 authorized medical treatment and instituted 
 
                 indemnity payments? 
 
            
 
                              review of the evidence
 
            
 
                 Claimant was born April 21, 1942 and worked at Iowa 
 
            Methodist Medical Center as a housekeeper from November 30, 
 
            1981 through August 31, 1984 at which time she voluntarily 
 
            quit.  Claimant has not been employed since that time 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            although she does maintain a household with her husband.  
 
            Claimant testified that she did not provide a reason for 
 
            quitting Iowa Methodist Medical Center but admitted one of 
 
            the reasons was to care for her ill mother.
 
            
 
                 The facts surrounding claimant's May 21, 1984 work 
 
            injury are not in dispute.  Claimant testified that she 
 
            bumped her lower left extremity and later in the afternoon 
 
            she again injured herself when furniture stacked in her work 
 
            area fell on her lower left extremity.  Although claimant 
 
            began to limp, she continued to work and following work went 
 
            to the Iowa Methodist Medical Center emergency room.  
 
            Claimant's physician then took her off work for three weeks 
 
            and returned her to half days on May 30, 1984.  On June 25, 
 
            1984, claimant was released to return to full duty by her 
 
            treating physician and orthopedic surgeon, Joe Fellows, M.D.  
 
            Claimant continued to have pain and discomfort in her arch 
 
            area and Dr. Fellows prescribed an arch support.
 
            
 
                 Claimant stated that her lower left extremity never 
 
            returned to normal and numbness and swelling persisted 
 
            between August 1984 and June 1987.  Claimant sought 
 
            treatment and was referred back to Dr. Fellows on June 2, 
 
            1987.  Dr. Fellows referred claimant to orthopaedic surgeon, 
 
            A. B. Grundberg, M.D.  After a positive EMG test, Dr. 
 
            Grundberg diagnosed tarsal tunnel syndrome as a result of 
 
            the May 21, 1984 work injury.  Surgery was performed on June 
 
            25, 1987.  Dr. Grundberg provided follow up care and 
 
            released claimant to return to housekeeping type duties on 
 
            August 17, 1987.  (Joint exhibit 1, Page 13).  
 
            
 
                 Claimant returned to Dr. Grundberg on February 2, 1988 
 
            with persistent symptoms and an EMG was ordered.  The EMG 
 
            showed that claimant's left tarsal tunnel syndrome had been 
 
            relieved.  (Jt. ex. 1, p. 14).  Claimant was advised that 
 
            sometimes surgery may not relieve all problems and her 
 
            residual discomfort should improve with time.  No further 
 
            treatment was prescribed besides use of tylenol for pain. 
 
            
 
                 In an office note dated March 29, 1988, Dr Grundberg 
 
            noted that he discussed claimant's condition with counsel 
 
            for both parties.  Dr. Grundberg stated that he told 
 
            claimant that "she would improve anywhere from 6 to 18 
 
            months from now and eventually would finally end up with a 
 
            five percent permanent impairment due to permanent nerve 
 
            deficit consisting of mild pain and weakness in her ankle 
 
            and foot."  (Jt. ex. 1, p. 14).  In a letter dated June 27, 
 
            1988 addressed to defendants' attorney, Dr Grundberg again 
 
            opined:  "[h]er permanent impairment is 5% in her left lower 
 
            extremity due to residuals from tarsal tunnel syndrome.  
 
            These residuals consist of mild pain, mild weakness in her 
 
            ankle and foot."  (Jt. ex. 1, p. 10).
 
            
 
                 Claimant was evaluated by orthopaedic surgeon, Peter 
 
            Wirtz, M.D., on September 10, 1987.  According to Dr. Wirtz 
 
            claimant had reached maximum healing at that time.  Dr. 
 
            Wirtz noted that claimant's "x-ray, AP, Lateral, 
 
            weightbearing (sic) of foot shows normal bony anatomy and 
 
            calcification."  (Jt. ex. 1, p. 29).  He recommended 
 
            treatment of continuing on ambulatory status with 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            improvement in six to nine months and concluded that 
 
            claimant's present restrictions include limitations of 
 
            standing, walking and lifting.  Dr. Wirtz agreed with the 
 
            permanent partial impairment rating of Dr. Grundberg.  Dr. 
 
            Wirtz likewise released claimant to housekeeping type of 
 
            duties.
 
            
 
                 Claimant, at the request of her attorney, went to 
 
            orthopaedic surgeon Martin S. Rosenfeld, D.O., on November 
 
            24, 1987 for an evaluation.  Dr. Rosenfeld opined that 
 
            claimant had residual sinus-tarsi syndrome.  X-rays were 
 
            taken which revealed no gross bony abnormalities.  Dr. 
 
            Rosenfeld opined that a repeat EMG and further treatment, 
 
            such as steroids, intense physical therapy or chemical 
 
            sympathectomy should be carried out.  (Jt. ex. 1, p. 3).  
 
            Dr. Rosenfeld opined that claimant was still in healing 
 
            period and that her problems relate back to May 21, 1984 
 
            injury.  Dr. Rosenfeld goes on to say that: "I do not feel 
 
            that with the amount of discomfort that she has in her feet 
 
            as well as the swelling and problems that she would be able 
 
            to do an occupation that required her to be on her feet for 
 
            any significant amount of time."  (Jt. Ex. 1, p. 3).
 
            
 
                 On March 1, 1988 claimant scheduled her own appointment 
 
            with Dr. Rosenfeld complaining of persistent pain and 
 
            problems walking.  (Jt. ex. 1, p. 7).  Claimant received 
 
            physical therapy from March 1, 1988 through June of 1988 
 
            upon orders from Dr. Rosenfeld.  In a report dated June 16, 
 
            1988, Dr. Rosenfeld stated that claimant is making progress 
 
            and opined that she has not reached maximum healing from her 
 
            treatment.  Dr. Rosenfeld opined that:
 
            
 
                    Esther's permanent impairment rating is very 
 
                 difficult due to the fact that her permanent 
 
                 physical impairment is 25-30% of the lower 
 
                 extremity, but her functional impairment I feel is 
 
                 much higher due to the fact that she cannot stand 
 
                 or walk on her foot or ankle for any significant 
 
                 amount of time.  
 
            
 
            (Jt. ex. 1, p. 1).
 
            
 
                 At the arbitration hearing, in response to a question 
 
            posed by claimant's attorney about her condition from the 
 
            fall of 1984 until June of 1987, claimant testified: "[w]hen 
 
            I would get up, I couldn't get my normal work done, and as I 
 
            like walked during the day, I had this numbness in my foot, 
 
            and then it would swell up, but I thought it was arthritis, 
 
            I guess."  (Transcript, p. 10).  Claimant testified that she 
 
            was getting better with physical therapy but had failed to 
 
            improve as she wanted to and that treatment gives her peace.  
 
            (Tr., p. 16).  When asked what type of symptoms she had at 
 
            the time of hearing, claimant testified that she had a lot 
 
            of pain.  (Tr., p. 17).  Finally, when claimant was asked 
 
            whether she could perform her prior duties as housekeeper 
 
            she testified that she could not due to her pain.  (Tr., p. 
 
            20).
 
            
 
                 Claimant testified that all bills from Dr. Grundberg 
 
            and Dr. Fellows were paid by Iowa Methodist Medical Center.  
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Claimant also testified that when she sought treatment from 
 
            Dr. Rosenfeld, that she had problems with her medical bills 
 
            being paid.  Claimant discontinued physical therapy 
 
            apparently upon receiving notice from defendants that Dr. 
 
            Rosenfeld's care and the physical therapy ordered by him was 
 
            not authorized.  
 
            
 
                 Defendants in their answer to claimant's petition 
 
            denied liability for claimant's work injury due to lack of 
 
            information.  Defendants paid all medical expenses related 
 
            to claimant's treatment prior to claimant's filing of her 
 
            original notice and petition.  On the hearing assignment 
 
            order, filed February 17, 1988, hearing issues included 
 
            arising out of and in the course of, causal connection, 
 
            nature and extent of benefits and entitlement to medical 
 
            benefits.  On July 11, 1988, defendants amended their answer 
 
            to admit liability for claimant's work injury.  Defendants 
 
            notified claimant on July 11, 1988 that the only authorized 
 
            physicians were Dr. Grundberg and Dr. Fellows.
 
            
 
                                  applicable law
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of May 21, 
 
            1984 is causally related to the disability on which claimant 
 
            now bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 
 
            133 N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 
 
            296, 18 N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 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.  
 
            Sourpuss v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 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).
 
            
 
                 When the result of an injury is loss to a scheduled 
 
            member, the compensation payable is limited to that set 
 
            forth in the appropriate subdivision of Iowa Code section 
 
            85.34(2).  Baton v. Nevada Poultry Co., 253 Iowa 285, 110 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            N.W.2d 660 (1961).
 
            
 
            
 
                                     ANALYSIS
 
            
 
                 The first issue on appeal, defendants contend that the 
 
            treatment claimant received from Dr. Rosenfeld was 
 
            unauthorized and they are not obligated to pay for those 
 
            medical expenses.  An agency decision is relevant in that it 
 
            held "that it is inconsistent to deny liability and the 
 
            obligation to furnish (medical) care on one hand and at the 
 
            same time claim a right to choose the care." Mason v. 
 
            Thermo-Gas, (Appeal Decision, July 28, 1989).  In their 
 
            answer, defendants denied liability for claimant's work 
 
            injury and liability was designated as an issue on the 
 
            hearing assignment order.  Defendants cannot deny liability 
 
            and assert the right to choose medical care.  Defendants 
 
            later admitted liability in their amended answer.  
 
            Therefore, defendants are liable for medical benefits during 
 
            the time they denied liability.
 
            
 
                 The second issue is healing period benefits.  The 
 
            deputy in his proposed decision found that claimant 
 
            reentered healing period on March 1, 1988 when she began to 
 
            receive treatment from Dr. Rosenfeld and that claimant was 
 
            entitled to running healing period benefits.  There is a 
 
            lack of medical evidence to support the conclusion that 
 
            claimant is entitled to addition healing period benefits.  
 
            Therefore, claimant failed to prove entitlement to healing 
 
            period benefits beginning on March 1, 1988.
 
            
 
                 Claimant has the burden of proving entitlement to 
 
            healing period benefits.  Healing period for an injury may 
 
            terminate and then begin again.  Lawyer & Higgs, Iowa 
 
            Workers' Compensation -- Law & Practice, section 13-3.  
 
            Willis v. Lehigh Portland Cement Company, I-2 Iowa 
 
            Industrial Commissioner Decisions 485 (1984); Riesselman v. 
 
            Carroll Health Center, III Iowa Industrial Commissioner 
 
            Report 209 (Appeal Decision 1982); Clemens v. Iowa Veterans 
 
            Home, I-1 Iowa Industrial Commissioner Decisions 35 (1984).  
 
            In the case sub judice, claimant must prove that healing 
 
            period has started anew in order to meet her burden of proof 
 
            as to entitlement to healing period benefits.  
 
            
 
                 Claimant received a permanent impairment rating in both 
 
            March 1988 and June 1988 and was released to return to 
 
            housekeeping type duties by Dr. Grundberg.  In addition, Dr. 
 
            Wirtz and Dr. Rosenfeld provided a permanent impairment 
 
            rating of claimant's lower left extremity.  In an appeal 
 
            decision, this agency has held that:
 
            
 
                 Claimant's healing period terminated when Dr, 
 
                 Hawkins rated him as having a 15 percent permanent 
 
                 body as a whole impairment on October 25, 1983.  
 
                 This rating indicates that Dr. Hawkins did not 
 
                 expect claimant to improve and as such meets the 
 
                 criteria of section 85.34(1) and Thomas v. William 
 
                 Knudson & Sons, Inc., 349 N.W.2d 124 (Iowa App. 
 
                 1984).  The finding of a termination of healing 
 
                 period necessarily precludes the discussion of a 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 running award.
 
            
 
            Hoskins v. Quaker Oats, Vol. 2, No. 1, State of Iowa 
 
            Industrial Commissioner Decisions, 181, 185 (Appeal 
 
            Decision, July 18, 1985).  In order to prove entitlement to 
 
            benefits, claimant has the burden of proving that healing 
 
            period started up again.  
 
            
 
                 Upon review of the evidence, it is clear that 
 
            claimant's complaints have not changed since injury.  
 
            Claimant noted in her appeal brief that claimant's medical 
 
            records show that she has been symptomatic since May 1984.  
 
            Claimant testified that she has never been free from pain 
 
            since her May 21, 1984 work injury.  "[C]laimant's 
 
            complaints of continued pain without objective evidence 
 
            neurological impairment or physical trauma are not 
 
            sufficient to sustain a running award for healing period 
 
            benefits..."  Dietz v. Iowa Meat Processing, File No. 
 
            757109, (Appeal Decision, November 12, 1986).  Claimant's 
 
            pain without additional medical evidence fails to satisfy 
 
            claimant's burden of proof as to entitlement to healing 
 
            period benefits.
 
            
 
                 In addition, it appears that the treatment claimant 
 
            received from Dr. Rosenfeld's was maintenance in nature 
 
            designed to relieve claimant's persistent complaints of pain 
 
            rather than to improve functional impairment.  In Dr. 
 
            Rosenfeld's January 4, 1988 letter, he noted that as a 
 
            result of the "amount of discomfort"... as well as the 
 
            "swelling and problems" that he did not feel that claimant 
 
            would be able to do her occupation.  On the physical therapy 
 
            report dated June 19, 1988 it is noted that claimant's foot 
 
            felt much better.  (Jt. ex. 1, pp. 3,6).  An appeal decision 
 
            by this agency held:
 
            
 
                 That a person continues to receive medical care 
 
                 does not indicate that the healing period 
 
                 continues.  Medical treatment which is maintenance 
 
                 in nature often continues beyond that point when 
 
                 maximum medical recuperation has been 
 
                 accomplished.  Medical treatment that anticipates 
 
                 improvement does not necessarily extend healing 
 
                 period particularly when the treatment does not in 
 
                 fact improve the condition.
 
            
 
            Derochie v. City of Sioux City, II Iowa Industrial 
 
            Commissioner Report 112, 114 (1982).  Merely because the 
 
            treatment prescribed by Dr. Rosenfeld caused claimant's pain 
 
            to subside does not prove entitlement to healing period 
 
            benefits.
 
            
 
                 Claimant failed to prove by the greater weight of the 
 
            evidence entitlement to healing period benefits beginning on 
 
            March 1, 1988.  Medical treatment designed to relieve 
 
            claimant's persistent complaints of pain does not prove 
 
            entitlement to additional healing period benefits.  Claimant 
 
            failed to carry her burden as to entitlement to healing 
 
            period benefits.
 
            
 
                 The nature and extent of claimant's injury was not 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            determined by the deputy.  Therefore, the claim will be 
 
            remanded to the deputy to determine the nature and extent of 
 
            claimant's injury to her lower left extremity based upon the 
 
            record. 
 
            
 
                                FINDINGS OF FACTS
 
            
 
                 1.  As stipulated, on or about May 21, 1984 claimant 
 
            suffered an injury to her lower left extremity which arose 
 
            out of and in the course of her employment with Iowa 
 
            Methodist Medical Center.
 
            
 
                 2.  Claimant was off work from May 22, 1984 through 
 
            June 24, 1984 when she was released by Dr. Fellows to return 
 
            to her employment as housekeeper for Iowa Methodist Medical 
 
            Center.
 
            
 
                 3.  Claimant experienced continued pain and swelling in 
 
            her lower left extremity and was referred to Dr. Grundberg.  
 
            Claimant was diagnosed with left tarsal tunnel syndrome as a 
 
            result of her work injury of May 21, 1984.  On June 25, 
 
            1987, claimant had surgery to relieve her left tarsal tunnel 
 
            syndrome.
 
            
 
                 4.  Claimant had tarsal tunnel surgery on June 2, 1987 
 
            and was released to return to housekeeping type duties by 
 
            Dr. Grundberg on August 17, 1987.
 
            
 
                 5.  On March 29, 1988, Dr. Grundberg provided claimant 
 
            permanent impairment rating to the lower left extremity due 
 
            to residuals from tarsal tunnel syndrome.  The residuals 
 
            include mild pain, mild weakness in her ankle and foot.
 
            
 
                 6.  On September 10, 1987, Dr. Wirtz evaluated claimant 
 
            and provided claimant a permanent impairment rating of the 
 
            lower left extremity.
 
            
 
                 7.  On June 16, 1988, Dr. Rosenfeld provided claimant a 
 
            permanent physical impairment rating of the lower left 
 
            extremity.
 
            
 
                 8.  On March 1, 1988, claimant sought treatment from 
 
            Dr. Rosenfeld to relieve her persistent complaints of pain.  
 
            Treatment from Dr. Rosenfeld helped to relieve claimant's 
 
            complaints of pain.
 
            
 
                 9.  Defendants up until July 11, 1988 denied liability 
 
            for claimant's work injury.  On July 11, 1988 defendants 
 
            amended their answer to admit liability at which time they 
 
            notified claimant that Dr. Rosenfeld was not an authorized 
 
            physician and that the only authorized physicians were Drs. 
 
            Grundberg and Fellows.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 Claimant failed to prove by the greater weight of the 
 
            evidence entitlement to healing period benefits beginning on 
 
            March 1, 1988.
 
            
 
                 Defendants denied liability for claimant's work injury 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            up until July 11, 1988.  Claimant is entitled to seek 
 
            medical care of her own choice and defendants are liable for 
 
            reasonable medical care up until July 11, 1988 when 
 
            defendants amended their answer to admit liability.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified in part and remanded to determine the nature and 
 
            extent of claimant's injury to her lower left extremity.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay to claimant the medical 
 
            expenses listed in the prehearing report except for four and 
 
            20/100 dollars ($4.20).  These expenses total one thousand 
 
            seven hundred forty-one and 78/100 dollars ($1,741.78).  
 
            Claimant will be reimbursed only if she has paid those 
 
            expenses, otherwise defendant is ordered to pay the provider 
 
            directly.
 
            
 
                 That defendants shall pay the cost of this proceeding 
 
            including the cost of transcription of the arbitration 
 
            decision.
 
            
 
                 That defendants shall file a claim activity report 
 
            pursuant to Division of Industrial Services Rule 343-3.1(2).
 
            
 
                 Signed and filed this ____ day of July, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   CLAIR R. CRAMER
 
                                           ACTING INDUSTRIAL 
 
            COMMISSIONER
 
            
 
            
 
            
 
                 
 
            
 
                 
 
            Copies To:
 
            
 
            Mr. James R. Lawyer
 
            Mr. Tom Drew
 
            Attorneys at Law
 
            West Towers Office
 
            1200 35th St., Ste. 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. Hugh J. Cain
 
            Mr. Glenn Goodwin
 
            Attorneys at Law
 
            4th Floor, Equitable Bldg.
 
            Des Moines, Iowa 50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1802;5-2505;5-2906
 
                                          Filed July 30, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            ESTHER M. PHILLIPS,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 765826
 
            IOWA METHODIST MEDICAL        :
 
            CENTER,                       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            AETNA CASUALTY,               :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1802
 
            Claimant's pain without additional medical evidence fails to 
 
            satisfy claimant's burden of proof as to entitlement to 
 
            healing period benefits.  Claimant's medical records show 
 
            that she has been symptomatic since May 1984.  In addition, 
 
            medical treatment designed to relieve claimant's persistent 
 
            complaints of pain does not prove entitlement to additional 
 
            healing period benefits.
 
            
 
            5-2505
 
            Defendants in their answer denied liability for claimant's 
 
            work injury abd liability was designated as an issue in the 
 
            hearing assignment order.  "[I]t is inconsistent to deny 
 
            liability and the obligation to furnish (medical) care on 
 
            one hand and at the same time claim a right to choose the 
 
            care."  Mason v. Thermo-Gas, (Appeal Decision, July 28, 
 
            1989).
 
            
 
            5-2906
 
            The claim will be remanded to the deputy to determine the 
 
            nature and extent of claimant's injury to her lower left 
 
            extremity.
 
            
 
 
            
 
 
 
              
 
 
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ESTHER M. PHILLIPS,
 
         
 
              Claimant,                            File No. 765826
 
         
 
         vs.                                    A R B I T R A T I O N
 
         
 
         IOWA METHODIST MEDICAL CENTER,            D E C I S I O N
 
         
 
              Employer
 
                                                      F I L E D
 
         and
 
                                                     APR 14 1989
 
         AETNA CASUALTY & SURETY
 
         COMPANY,                           IOWA INDUSTRIAL COMMISSIONER
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Esther M. 
 
         Phillips, claimant, against Iowa Methodist Medical Center, 
 
         employer (hereinafter referred to as IMMC), and Aetna Casualty & 
 
         Surety Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on May 21, 
 
         1984.  On July 18, 1988, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record in this case at the time of hearing.  Oral 
 
         testimony was received during the hearing only from claimant.  
 
         The exhibits received into the evidence at the hearing are listed 
 
         in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On or about May 21, 1984, claimant received an injury 
 
         which arose out of and in the course of her employment with 
 
         IMMC.
 
         
 
              2.  Claimant is seeking healing period benefits only from 
 
         June 2, 1987 to the present time and defendants agree that she 
 
         was not working during this period of time.
 
         
 
              3.  The injury was a cause of permanent partial disability 
 
         to the left extremity.
 
         
 
              4.  Claimant's rate of weekly compensation in the event of 
 
                                                
 
                                                         
 
         an award of weekly benefits from this proceeding shall be 
 
         $136.65.
 
         
 
              5.  The medical bills submitted by claimant at the hearing 
 
         were fair and reasonable and causally connected to the work 
 
         injury but the issue as to whether or not they were authorized 
 
         remains disputed.
 
         
 
                                    ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
               I.  The extent of claimant's entitlement to weekly benefits 
 
         for disability.
 
         
 
              II.  The extent of claimant's entitlement to medical 
 
         benefits.
 
         
 
                            STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting the more 
 
         pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was independently reviewed and considered in arriving 
 
         at this decision.  Any conclusions contained in the following 
 
         statement should be viewed as preliminary findings of fact.
 
         
 
              Claimant is a 49 year old housewife who worked for IMMC as a 
 
         housekeeper from November 30, 1981 through August 31, 1984 at 
 
         which time she voluntarily quit.  Claimant has not been employed 
 
         since that time although she does maintain a household with her 
 
         husband.  Claimant admitted that she did not provide a reason to 
 
         IMMC when she left and admitted that one of the reasons for 
 
         quitting was to care for her ill mother.
 
         
 
              The facts surrounding the work injury are not in dispute. 
 
         Claimant testified that on or about May 21, 1984, she bumped her 
 
         left foot and later in the afternoon she again injured herself 
 
         when chairs stacked in her work area fell on her left foot. 
 
         Although she began to limp, she continued to work that day and was 
 
         eventually referred by IMMC to the emergency room.  Her physician 
 
         then took her off work for three weeks and returned her to half 
 
         days for a few weeks on May 30, 1984.  On June 25, 1984, claimant 
 
         was returned to full duty by her treating physician and orthopedic 
 
         surgeon, Joe Fellows, M.D.  However, claimant said that she never 
 
         was pain free after the work injury.  The left foot kept giving 
 
         her problems with reoccurring pain and swelling upon activity.  
 
         She said that she made complaints to IMMC but no further treatment 
 
         was offered to her before she quit.
 
         
 
              Between August 1984 and June 1987, claimant stated that her 
 
         foot never returned to normal and numbness and swelling 
 
         continued.  She did not return to employment.  Finally, the 
 
         pain, numbness and swelling became worse and she sought 
 
                                                
 
                                                         
 
         treatment again from IMMC.  At that time she was referred back 
 
         to Dr. Fellows on June 2, 1987.  Dr. Fellows immediately 
 
         referred claimant to his associate, another orthopedic surgeon, 
 
         A. B. Grunberg, M.D. After a positive EMG test, Dr. Grunberg 
 
         diagnosed tarsal tunnel syndrome as a result of the May 1984 
 
         work injury and performed release surgery on June 25, 1987.  Dr. 
 
         Grunberg provided follow up care and released claimant to return 
 
         to housekeeping type of work on August 17, 1987.  At that time 
 
         Dr. Grunberg indicated that claimant was suffering from a five 
 
         percent permanent partial impairment to the lower extremity from 
 
         the work injury.  He stated to claimant's attorney that he 
 
         expected claimant to continue to improve over the next one to 
 
         two years.  Claimant said that despite a continuation of 
 
         symptoms, she received no further treatment from Dr. Grunberg.
 
         
 
              Claimant was examined by another orthopedic surgeon, Peter 
 
         Wirtz, M.D., on September 10, 1987.  According to Dr. Wirtz 
 
         claimant had reached maximum healing at that time.  He 
 
         recommended treatment of continuing on ambulatory status with 
 
         improvement in six to nine months.  Dr. Wirtz agreed with the 
 
         permanent partial impairment rating of Dr. Grunberg.  He likewise 
 
         released claimant to housekeeping type of duties.
 
         
 
              Claimant testified that she was dissatisfied with the 
 
         treatment offered by Dr. Grunberg and sought out the services of 
 
         Martin Rosenfeld, D.O., another orthopedic surgeon, upon referral 
 
         by her attorney.  After his examination of claimant on November 
 
         24, 1987, Dr. Rosenfeld opined that claimant should undergo 
 
         further treatment consisting of steroid injections and rigorous 
 
         physical therapy.  He also stated that claimant would not be able 
 
         to perform any occupations requiring standing or using her feet 
 
         more than a half an hour to three quarters of an hour at a time. 
 
         This doctor did not believe that claimant had reached maximum 
 
         healing.  Claimant then returned to Dr. Grunberg in February and 
 
         March of 1988.  According to Dr. Grunberg's records, an EMG test 
 
         at that time indicated that claimant was recovered from tarsal 
 
         tunnel syndrome and he again released her to return to 
 
         housekeeping work.  The only treatment offered at that time was a 
 
         recommendation to use Tylenol for pain.
 
         
 
              Claimant returned to Dr. Rosenfeld on March 1, 1988 and 
 
         began to receive treatment from him.  Claimant received physical 
 
         therapy from her local hospital through June of 1988 upon orders 
 
         from Dr. Rosenfeld.  In a report dated June 16, 1987, Dr. 
 
         Rosenfeld stated that claimant is making progress but that 
 
         claimant still had not reached maximum healing from her 
 
         treatment.  Consequently, he was reluctant to rate claimant but 
 
         stated that if he had to rate claimant's permanency, it would 
 
         constitute 25 to 30 percent of the lower extremity.  Claimant 
 
         testified that the physical therapy prescribed by Dr. Rosenfeld 
 
         helped and that she continued physical therapy at home at the 
 
         time of the hearing.
 
         
 
              Claimant discontinued physical therapy apparently upon 
 
         receiving notice from defendants that Dr. Rosenfeld's care and 
 
                                                
 
                                                         
 
         the physical therapy ordered by him was not authorized and that 
 
         they would not pay for it.  Defendants had originally denied a 
 
         work injury on May 27, 1984, in their answer to the petition 
 
         filed in this proceeding but amended this answer to admit 
 
         liability for such an injury on July 11, 1987.  Defendants 
 
         notified claimant in writing at that time that the only 
 
         authorized physician was Dr. Grunberg and Dr. Fellows.  The 
 
         letter indicated that Dr. Rosenfeld was not an authorized 
 
         physician.  The letter, however, did not offer any alternate care 
 
         in light of the fact that Dr. Grunberg and Dr. Fellows did not 
 
         previously offer any care to claimant.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         that she was testifying truthfully.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
               I.  The parties have stipulated that claimant has some 
 
         degree of permanency.  Claimant, however, claimed to still be in 
 
         her healing period and that it is premature to determine the 
 
         extent of her permanency at this time.  Defendants contend 
 
         otherwise.  Claimant is entitled to weekly benefits for healing 
 
         period under Iowa Code section 85.34(1) from the date of injury 
 
         until claimant returns to work; until claimant is medically 
 
         capable of returning to substantially similar work to the work 
 
 
 
                   
 
                                                         
 
         she was performing at the time of injury; or, until it is 
 
         indicated that significant improvement from the injury is not 
 
         anticipated, whichever occurs first.
 
         
 
              The question of whether claimant has reached maximum 
 
         improvement is a medical issue.  First, the views of Dr. Wirtz 
 
         are not convincing as he has never treated claimant.  His 
 
         diagnosis of Sudeck's syndrome was neither explained.by him nor 
 
         was such a diagnosis shared by any other physician in this case.  
 
         This case revolves around the conflicting views of two orthopedic 
 
         surgeons, Dr. Grunberg and Dr. Rosenfeld.  The evidence in the 
 
         record fails to show any difference in the qualifications of the 
 
         two doctors. Claimant was credible and her pain complaints are 
 
         found to be real.  She states that she did significantly benefit 
 
         from the treatment of Dr. Rosenfeld.  Therefore, the 
 
         preponderance of the evidence presented indicates that claimant 
 
         actually has three separate healing periods during which time she 
 
         received beneficial treatment from a qualified orthopedic 
 
         surgeon.
 
         
 
              This agency has long recognized that a temporary return to 
 
         work following a work injury does not preclude the reinstitution 
 
         of temporary total disability or healing period benefits when an 
 
         employee is disabled a second time as a result of the same 
 
         injury. See Junge v. Century Engineering Corp., II Iowa 
 
         Industrial Commissioner Report 219 (Appeal Decision 1981).  
 
         Healing period may terminate and then begin again.  Lawyer & 
 
         Higgs, Iowa Workers' Compensation -- Law & Practice, Section 
 
         13-3.  Willis v. Lehigh Portland Cement Company, I 2 Iowa 
 
         Industrial Commissioner Decisions 485 (1984); Riesselman v. 
 
         Carroll Health Center III Iowa Industrial Commissioner Report 209 
 
         (Appeal Decision 1982); Clemens v. Iowa Veterans Home, I 1 Iowa 
 
         Industrial Commissioner Decisions 35 (1984).  In the case sub 
 
         judice, claimant's initial healing period extends from May 22, 
 
         1984 through June 24, 1984, while she received treatment from Dr. 
 
         Fellows.  Claimant had a second healing period from June 2, 1987 
 
         through August 17, 1987 during which time she received treatment 
 
         from Dr. Grunberg.  Claimant finally has a third period of 
 
         healing period beginning on March 1, 1988 during which time she 
 
         received treatment from Dr. Rosenfeld and this period of healing 
 
         period had not ended at the time of the hearing in July of 1988.  
 
         Claimant, therefore, as of July 1988 had not reached a point in 
 
         time where her disability could be fairly evaluated given the 
 
         beneficial treatment of Dr. Rosenfeld.
 
         
 
              II.  Pursuant to Iowa Code section 85.27, claimant is 
 
         entitled to payment of reasonable medical expenses incurred for 
 
         treatment of a work injury.  Claimant is entitled to an order of 
 
         reimbursement only if claimant has paid those expenses.  
 
         Otherwise claimant is entitled to an order directing the 
 
         responsible defendants to make such payments directly to the 
 
         provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 1988).
 
         
 
              Defendants claim that treatment by Dr. Rosenfeld was not 
 
         authorized and claimant is not entitled to reimbursement for 
 
                                                
 
                                                         
 
         those expenses under Iowa Code section 85.27 which provides 
 
         employers with the right to choose the care.  However, section 
 
         85.27 applies only to injuries compensable under Chapters 85 and 
 
         85A of the Code and obligates the employers to furnish reasonable 
 
         medical care. This agency has held that it is inconsistent to 
 
         deny liability and the obligation to furnish care on one hand and 
 
         at the same time claim a right to choose the care.  Kindhart v. 
 
         Fort Des Moines Hotel, I 3 Iowa Industrial Commissioner Decisions 
 
         611 (Appeal Decision 1985); Barnhart v. MAQ, Inc., I Iowa 
 
         Industrial Commissioner Reports 16 (Appeal Decision 1981).
 
         
 
              The right to control the medical care must be conditioned 
 
         upon the establishment of liability for an injury either by 
 
         admission or by final agency decision.  Iowa Code section 85.27 
 
         does not give an employer the right to choose the care without 
 
         affording claimant.the right to petition the commissioner to 
 
         resolve disputes concerning such care.  However, this agency does 
 
         not have authority to order an employer to furnish any particular 
 
         care unless the employer's liability for an injury under Chapters 
 
         85, 85A or 85B has been established.  Therefore, the right to 
 
         control the care must coincide with this agency's jurisdiction 
 
         over the matter.
 
         
 
              Until July 11, 1988, defendants in this case denied that 
 
         claimant suffered any work injury.  For that reason defendants 
 
         did not have the right to choose the care for this.alleged work 
 
         injury prior to July 11, 1988.  Consequently, defendants are 
 
         liable for all medical bills incurred by claimant before July 11, 
 
         1988 which are causally connected to the work injury.  Defendants 
 
         have stipulated that all of the requested medical expenses listed 
 
         in the prehearing report are causally connected to the work 
 
         injury. Only one of the requested expenses were incurred by 
 
         claimant after July 11, 1986, a trip to Dr. Rosenfeld on July 14, 
 
         1988. Therefore, all of the requested medical expenses will be 
 
         awarded except for $4.20 for travel expenses of this single trip 
 
         to Dr. Rosenfeld.
 
         
 
              Claimant requests alternate care from Dr. Rosenfeld.  Again, 
 
         claimant has benefited in the past from such treatment and it is 
 
         the best interest of claimant's recovery not to change physicians 
 
         at this time.  Continued care by Dr. Rosenfeld will be ordered.
 
         
 
              Claimant's credibility was at issue in this case because of 
 
         a need to assess the validity of claimant's continuing complaints 
 
         after Dr. Grunberg ended treatment.  Also claimant's claim of 
 
         improvement from treatment offered by Dr. Rosenfeld was relevant 
 
         to the alternate care and healing period issue.  Therefore, a 
 
         credibility finding is necessary and will be made.
 
         
 
                              FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  On or about May 21, 1984, claimant suffered an injury to 
 
         her left leg which arose out of and in the course of employment 
 
                                                
 
                                                         
 
         with IMMC.
 
         
 
              3.  The work injury of May 21, 1984, was a cause of the 
 
         following healing periods during which time claimant received 
 
         medical treatment of the work injury and during which time 
 
         medical improvement was anticipated by the treating physician:  
 
         May 22, 1984 through June 24, 1984 (accept for the period during 
 
         which time claimant was paid temporary partial disability); June 
 
         2, 1987 through August 17, 1987; and, March 1, 1988 for an 
 
         indefinite period of time.  Although claimant is performing 
 
         household work at home, this is not the same quality or similar 
 
         work to the work she was performing at IMMC at the time of the 
 
         work injury.
 
         
 
              4.  Claimant has not as yet reached maximum healing for her 
 
         last period of treatment by Dr. Rosenfeld and it is medically 
 
         anticipated by Dr. Rosenfeld that her condition will improve with 
 
         his treatment.
 
         
 
              5.  Although claimant has benefited from each period of 
 
         treatment by the orthopedic surgeons in this case, the work 
 
         injury remains a cause of an undetermined amount of.permanent 
 
         partial impairment.to the lower extremity.
 
         
 
              6.  Defendants did not admit to a work injury in this case 
 
         until July 11, 1988, at which time they notified claimant that 
 
         Dr. Rosenfeld was not an authorized physician and that the only 
 
         authorized physicians were Drs. Grunberg and Fellows.
 
         
 
              7.  The work injury requires further treatment and Dr. 
 
         Rosenfeld is the best physician at this time to provide such 
 
         care.
 
         
 
                           CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to the 
 
         disability and medical benefits awarded below.
 
         
 
                                   ORDER
 
         
 
              1.  Defendants shall pay to claimant healing period benefits 
 
         at the rate of one hundred thirty-six and 65/100 dollars 
 
         ($136.65) per week from May 22, 1984 through June 24, 1984, 
 
         except for the time claimant received temporary partial 
 
         disability from defendants; from June 2, 1987 through August 17, 
 
         1987; and, from March 1, 1988 until such time as claimant returns 
 
         to work; until claimant is medically capable of returning to 
 
         substantially similar work to the work she was performing at the 
 
         time of the injury; or, until it is indicated that significant 
 
         improvement from the injury is not anticipated, whichever occurs 
 
         first.
 
         
 
              2.  Defendants shall pay to claimant the medical expenses 
 
         listed in the prehearing report except for four and 20/100 
 
         dollars ($4.20).  These expenses total one thousand seven hundred 
 
                                                
 
                                                         
 
         forty-one and 78/100 dollars ($1,741.78).  Claimant will be 
 
         reimbursed only if she has paid those expenses, otherwise 
 
         defendant is ordered to pay the provider directly.
 
         
 
              3.  Defendants are ordered to furnish medical care offered 
 
         and directed by Dr. Rosenfeld until such time as Dr. Rosenfeld 
 
         determines that further care is no longer necessary.
 
         
 
              4.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for all benefits 
 
         previously paid.
 
         
 
              5.  Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              6.  Defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              7.  Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
                                        
 
         
 
              Signed and filed this 14th day of April, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL
 
                                            COMMISSIONER
 
                                                  
 
                                           
 
                              
 
         Copies To:
 
         
 
         Mr. James R. Lawyer
 
         Attorney at Law
 
         West Towers Office
 
         1200 35th St., STE 500
 
         West Des Moines, Iowa  50265
 
         
 
         Mr. Hugh J. Cain
 
         Attorney at Law
 
         4th Floor, Equitable Bldg.
 
         Des Moines, Iowa  50309
 
                            
 
         
 
 
 
                            
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
                  
 
                           
 
 
 
                                            1803; 2505
 
                                            Filed April 14, 1989
 
                                            LARRY P. WALSHIRE
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ESTHER M. PHILLIPS,
 
         
 
              Claimant,
 
                                                    File No. 765826
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         IOWA METHODIST MEDICAL CENTER,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1803
 
         
 
              Claimant given a running award for healing period benefits.
 
         
 
         2505
 
         
 
              Claimant awarded expenses for unauthorized medical expenses 
 
         during the time defendants denied liability for the injury.