BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL W. BOWERS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     FILE NO. 766837
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I O N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Russell W. 
 
         Bowers, claimant, against Lehigh Portland Cement Company, 
 
         employer, and Travelers Insurance Company, insurance carrier, for 
 
         benefits as a result of an injury which occurred on June 9, 1984.  
 
         A hearing was held at Mason City, Iowa on September 5, 1986 and 
 
         the case was fully submitted at the close of the hearing.  The 
 
         record consists of the testimony of Russell W. Bowers (claimant), 
 
         Cindy Baker (a person who lives with claimant), and Lou Fasing 
 
         (supervisor of safety and training); claimant's exhibits 1 
 
         through 23; and defendants' exhibits A through E.
 
         
 
                                   STIPULATIONS
 
         
 
              At the time of the hearing the parties stipulated to the 
 
         following matters:
 
         
 
              That an employer/employee relationship existed between the 
 
         employer and claimant at the time of the injury.
 
         
 
              That the claimant sustained an injury on June 9, 1984 which. 
 
         arose out of and in the course of.his employment with the 
 
         employer.
 
         
 
              That the injury was the cause of some temporary disability.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is scheduled member 
 
         disability to the lower left extremity.
 
              
 
              That the commencement date for permanent partial 
 
         disability, in the event such benefits are awarded, is April 
 
         15, 1985.
 
         
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page   2
 
         
 
         
 
              That the rate of compensation in the event of an award is 
 
         $269.93.
 
         
 
              That all authorized medical benefits have been or will be 
 
         paid under Iowa Code section 85.27.
 
         
 
              That the defendants are entitled to credit for 35 weeks of 
 
         temporary total disability already paid at the rate,of $269.93 
 
         per week and temporary partial disability in the amount of 
 
         $535.24 for the period from January 8, 1985 to January 29, 
 
         1985.
 
         
 
                                   ISSUES
 
         
 
              The issues presented by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether the injury was the cause of additional temporary 
 
         disability for which the claimant has not been paid.
 
         
 
              Whether the injury was the cause of any permanent partial 
 
         disability.
 
         
 
              Whether the claimant is entitled to additional temporary 
 
         disability benefits.
 
         
 
              Whether the claimant is entitled to permanent partial 
 
         disability benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant testified that he is 37 years old, divorced, and 
 
         has lived with Cindy Baker since before this injury.  He has two 
 
         children.  He completed high school and two years of college at 
 
         North Iowa Area Community College.  He qualified for the 
 
         Associate of Arts Degree but did not pay the fee for a 
 
         certificate and therefore never received it.  Before he went to 
 
         college he worked for his father for five years as an apprentice 
 
         electrician after high school.
 
         
 
              Claimant began working for the employer on March 4, 1976 and 
 
         has performed various different jobs for them such as yard 
 
         laborer, shift laborer, miller helper and burner helper.  On June 
 
         9, 1984, he was injured while trying to unblock the fourth stage 
 
         of the preheat tower.  He opened the Osuicide doors" and was 
 
         poking air rods up in there to free the fourth stage when hot 
 
         dust hit the floor and flowed like water over the floor.  It went 
 
         over his boot through the stitching and severely burned his left 
 
         foot.  His foot was placed in a five gallon pail of water and he 
 
         was taken to Mercy Hospital at Mason City for emergency care 
 
         where he was treated by A. G. Chanco, M.D., who was on call.  Dr. 
 
         Chanco cleaned, dressed and wrapped the wound.  After that 
 
         claimant was treated by Philip R. Caropreso, M.D., a general 
 
         surgeon, who treated claimant for deep second and third degree 
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page   3
 
         
 
         
 
         burns of the dorsum of the left foot.  According to his office 
 
         notes, he saw claimant 11 different times from June 11, 1984 
 
         through September 6, 1984 (Claimant's Exhibit 1).  As early as 
 
         July 19, 1984, the initial skin healing had occurred, but 
 
         claimant began to have trouble with ulcerations due to wearing 
 
         work boots according to Dr. Caropreso.
 
         
 
              7/19/84  PC
 
              Burns have epithelized in the dorsum of the left foot.  
 
              However, in attempting to wear his boots, which is necessary 
 
              before he returns to work, the patient ulcerated and 
 
              blistered the burned areas.  Advised to continue to wear the 
 
              cast boot for the next two weeks.  Do not attempt to wear 
 
              boots any more.  Return to see me August 7, 1984. (Cl. Ex. 
 
              1, page 5)
 
         
 
              On August 7, 1984, claimant continued to have trouble.
 
         
 
              8/7/84  PC
 
              The patient's burn wound in the left foot is ulcerated again 
 
              in its lateral aspect.  The patient states that he tried 
 
              wearing sandals without any socks and the rubbing of the 
 
              sandals caused the breakdown of the skin.  I advised him to 
 
              go back to the cast shoe.  Put nothing over this area that 
 
              will rub against it.  See me again in one week. (Cl. Ex. 1, 
 
              p. 5)
 
         
 
              Claimant continued to complain of ulcerations and that the 
 
         wound opened up and Dr. Caropreso then referred claimant to C. 
 
         Joseph Plank, M.D., a dermatologist.  Dr. Plank saw claimant nine 
 
         times from July 12, 1984 to January 21, 1985 (Cl. Ex. 2).  Dr. 
 
         Plank verified that claimant did demonstrate eczema, raw skin, 
 
         small ulcers, persistent superficial erosions, irritation, 
 
         erythema and some bleeding in the burn wound area.  The wound 
 
         area is very sensitive to anything which touches it.  Claimant 
 
         expressed "tremulous" concern about losing his job because he 
 
         could not wear boots (Cl. Ex. 2, pp. 2 & 3).  Dr. Plank 
 
         recommended and claimant did try working on light duty wearing 
 
         tennis shoes.  On January 10, 1985 and again on January 21, 1985, 
 
         Dr. Plank said that he had no explanation for the erosions and no 
 
         treatment for them that worked.  He referred claimant to Mayo 
 
         Clinic and expressed the desire that claimant not return to his 
 
         office again (Cl. Ex. 2, pp. 4 & 5; Cl. Ex. 5).  The following 
 
         comments fairly summarize Dr. Plank's final position:
 
         
 
              Because of the continued complaints of extreme 
 
              discomfort and inability to wear any kind of shoes, 
 
              even though he continued to use the Duoderm gauze pads 
 
              under the sock and shoe, the patient was told that he 
 
              would have to be evaluated elsewhere as my expertise 
 
              had been exhausted.  In essence, the skin appeared 
 
              essentially normal for having sustained a burn.  The 
 
              continued opening and eroding of the skin was 
 
              unexplainable based upon my medical background and 
 
              knowledge.  To be unable to tolerate even a soft shoe 
 
              and standing during work is not understandable.
 
              (Cl. Ex. 9)
 
         
 
              Dr. Plank did not make a finding of any permanent impairment 
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page   4
 
         
 
         
 
         and accordingly, he did not give a permanent impairment rating.  
 
         Dr. Plank did comment that a photograph had been taken, but no 
 
         photograph was introduced into evidence at the hearing.
 
         
 
              Claimant was also treated by Jon R. Yankey, M.D., and David 
 
         A. Ruen, M.D., two family practice physicians, on approximately 
 
         22 occasions from November 30, 1984 through February 25, 1985 at 
 
         the request of the employer (Cl. Ex. 3).  Dr. Yankey found 
 
         several small scattered superficial erosions and surrounding 
 
         erythema over the lateral dorsum of the left foot; a violaceous 
 
         discolored area laterally; and the area was objectively sensitive 
 
         to light touch.  Like Dr. Plank, he could not medically explain 
 
         the worsening of the left foot.  He and Dr. Plank concurred with 
 
         the Mayo Clinic recommendation of continued conservative care of 
 
         the wound with ointments, creams and duoderm dressings.  Claimant 
 
         expressed opposition to returning to work on January 9, 1985 to 
 
         do light filing in tennis shoes, but on January 18, 1985 he said 
 
         the job was not causing him any problem, but the wound was 
 
         bleeding which was verified by Dr. Yankey.  Mr. Lou Fasing, 
 
         safety training supervisor, was present with the claimant and Dr. 
 
         Yankey at this examination.  It was agreed claimant would 
 
         continue with conservative medical care and continue to do his 
 
         light filing job at the plant.  Dr. Ruen and Dr. Plank reached 
 
         the same conclusion on January 25, 1985, that claimant should 
 
         continue with his light duty work (Cl. Ex. 3, p. 3).  On February 
 
         4, 1985, Dr. Ruen found claimant's healing slightly better and 
 
         said that he could work on the following day, February 5, 1985.  
 
         While under the care of Dr. Yankey and Dr. Ruen from November 30, 
 
         1984 to February 25, 1985, claimant continued to have recurrent 
 
         ulcers or erosions (Cl. Ex. 3).
 
         
 
              Dr. Yankey referred claimant to Sigfrid A. Muller, M.D., of 
 
         the Dermatology Department of the Mayo Clinic by a letter on 
 
         November 30, 1984 for evaluation and recommendations concerning 
 
         further care of claimant's left foot.  He also requested Dr. 
 
         Muller's opinion on whether claimant was able to return to work 
 
         on light duty wearing a soft shoe such as a tennis shoe or 
 
         jogging shoe and not be required to do any heavy lifting or 
 
         straining (Cl. Ex. 6).
 
         
 
              Dr. Muller saw claimant on December 5, 1984.  His 
 
         examination revealed an area approximately 4 cm. x 4 1/2 cm. of 
 
         erythema and scarring with small areas of superficial erosions 
 
         with considerable tenderness.  K. A. Johnson, M.D., of the Mayo 
 
         Clinic Department of Orthopedics felt the skin was unstable and 
 
         that claimant might need some sort of composite replacement of 
 
         the involved deeply scarred skin.  Jack Fisher, M.D., of the Mayo 
 
         Clinic Plastic Surgery Department recommended continued 
 
         conservative management and then a recheck of the wound on 
 
         January 4, 1985 to see if the scar continues to be sensitive and 
 
         easily ulcerated (Cl. Ex. 7).
 
         
 
              On January 7, 1985, Dr. Muller wrote that reexamination of 
 
         the claimant showed considerable healing and less erythema, but 
 
         that a few erosions remained.  The area was very painful.  Dr. 
 
         Fisher, the plastic surgeon, thought the conservative approach 
 
         was still appropriate; but found it difficult to explain the 
 
         origin of the pain since there was no crushing injury.  If the 
 
         scar should continue to break down, then incision and grafting 
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page   5
 
         
 
         
 
         might be necessary.  Dr. Muller felt that claimant could return 
 
         to work on a job that did not require much heavy lifting or 
 
         walking.  Dr. Muller took photographs of the lesion of the foot 
 
         but they were not admitted into evidence (Cl. Ex. 8).
 
         
 
              Claimant returned to work at light duty filing and lifting 
 
         one pound and two pound files occasionally and sitting and 
 
         cross-referencing written materials wearing a soft shoe on 
 
         approximately January 7, 1985.  Dr. Plank and Dr. Yankey agreed 
 
         on January 11, 1985, that the duties were not causing or 
 
         worsening the claimant's foot condition (Cl. Ex. 10).
 
         
 
              Apparently, claimant did not work for some reason from 
 
         approximately January 29, 1985 to February 4, 1985.  On February 
 
         4, 1985, Dr. Ruen stated that claimant could return to work.  
 
         Also on February 5, 1985, Dr. Ruen issued a note that said 
 
         claimant may carry up to 20 to 25 pounds without restrictions and 
 
         that he may walk 30 to 50 feet every 30 to 45 minutes (Cl. Ex. 
 
         12).
 
         
 
              Dr. Muller reported that he saw claimant on February 20, 
 
         1985 at which time claimant had a 3 x 2 cm. ulceration on the 
 
         dorsum of the left foot with severe pain at the site.  Claimant 
 
         said he felt working (walking and filing only) worsened his 
 
         condition.  Claimant was then referred to G. B. Irons, M.D., of 
 
         the Mayo Clinic Plastic and Reconstructive Surgery Department.  
 
         Dr. Irons very succinctly describes the chronology of events 
 
         after that in a letter dated April 19, 1985 as follows:
 
         
 
              I saw Mr. Bowers first on February 20, 1985 for 
 
              evaluation of an old burn on the lateral dorsum of his 
 
              left foot.  The burn had occurred seven months 
 
              previously but had healed down to a quarter sized 
 
              superficial defect.  I recommended conservative care 
 
              and saw him back on March 6th at which time it was 
 
              healing but very slowly and I felt that a skin graft 
 
              would speed things up considerably and this was done as 
 
              an outpatient under local anesthesia on that date.  He 
 
              was seen back on March 12, 1985 and again on April 3rd 
 
              at which time he was noted to have a good take of the 
 
              skin graft and was healing nicely.  He was then 
 
              referred back to his local physician and I have not 
 
              seen him since that time, but Doctor Ruen called me on 
 
              April 8th to discuss Mr. Bowers' returning to work.  I 
 
              told Doctor Ruen that I saw no contraindication to him 
 
              returning to work, but I would leave that final 
 
              judgment up to him.
 
              (Cl. Ex. 13)
 
         
 
              After claimant's skin graft on March 6, 1985, Dr. Ruen 
 
         released claimant to return to work with no restrictions on April 
 
         12, 1985 (Cl. Ex. 12).
 
         
 
              Dr. Muller describes the events that occurred to the 
 
         claimant after the skin graft in a letter dated July 2, 1986, 
 
         which he drafted after he saw the claimant for the last time on 
 
         June 17, 1986.
 
         
 
              I saw again Mr. Russell W. Bowers of Mason City, on June 17, 
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page   6
 
         
 
         
 
              1986.  He had not been seen by us since a year ago last 
 
              April, at which time he had been dismissed after a skin 
 
              graft to the burn site on the dorsum of the left foot.  The 
 
              area healed satisfactorily with a 100% take of the skin 
 
              graft.  He subsequently returned to work in the "yard gang" 
 
              where he ran small equipment, wearing a steel-toed boot, for 
 
              about three weeks and then he was laid off until 
 
              approximately October, 1985, when he worked again in a 
 
              similar situation for approximately four weeks before being 
 
              laid off again.  He began jogging in mid-April or so and 
 
              noted increased tenderness and some drainage at the former 
 
              burn site on the dorsum of the left foot and when he was 
 
              recalled to work in mid-May, 1986, he could only work for 
 
              three days because of increased pain and soreness at the 
 
              skin graft site on the dorsum of the left foot.  He was 
 
              under the care of Doctor Caropreso since that time and has 
 
              been using telfa daily and staying off his foot as much as 
 
              possible. (Cl. Ex. 19)
 
         
 
              Dr. Muller's examination on June 17, 1986, found a well 
 
         healed scar that was freely moveable 2 x 3 cm. in size on the 
 
         mid-dorsum of the left foot and within the scar he had three 
 
         small areas of approximately 6 to 8 mm. of superficial erosion.  
 
         There was no sign of infection.  The lesions were healing 
 
         satisfactorily and the doctor anticipated they would heal 
 
         completely in one or two more weeks.  Dr. Muller said that he saw 
 
         no reason why claimant could not return to work.  Dr. Muller made 
 
         no finding of permanent impairment and likewise made no permanent 
 
         impairment rating (Cl. Ex. 19).
 
         
 
              In his final report dated November 15, 1985, Dr.,Ruen stated 
 
         that after the skin graft in March of 1985, claimant was returned 
 
         to full activity without restrictions on April 12, 1985.  The 
 
         skin graft site has taken extremely well.  Claimant has 
 
         occasional itching and swelling for which he applies lotions and 
 
         foam pads.  The graft is approximately 2 cm. x 3 cm. and is 
 
         hyperpigmented and thinner than the skin on the rest of his foot.  
 
         He concludes as follows:
 
         
 
              On his multiple examinations over the course of the last 
 
              several months, I have not noticed any breakdown in the 
 
              skin, however, he describes some hypersensitivity to this 
 
              area with exam.  His range of motion and strength in his 
 
              foot is entirely within normal limits.  I believe that his 
 
              prognosis is excellent.  I do not feel that there is any 
 
              functional permanent impairment in his foot.
 
              (Cl. Ex. 16)
 
         
 
              Dr. Ruen likewise did not assess a permanent impairment 
 
         rating.
 
         
 
              Also on November 14, 1985, Dr. Caropreso examined the 
 
         claimant and reported a faint burn wound along the lateral dorsal 
 
         aspect of the left foot about 2 cm. x 3 cm. with a hyperpigmented 
 
         skin graft in the proximal portion of the wound.  The skin is 
 
         dry, but supple.  There are no masses, no motion dysfunction and 
 
         no loss of range of motion.  There is tenderness to light touch 
 
         in the area of the skin graft.  He states there has been no 
 
         breakdown of the skin on the dorsum of his foot since the skin 
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page   7
 
         
 
         
 
         graft healed.
 
         
 
              Dr. Caropreso concludes as follows:
 
         
 
              Mr. Bowers seems to be disabled from his burn wound injury.  
 
              With the exception of some hyperpigmentation, dry skin, and 
 
              tenderness, no other evidence can substantiate the extent of 
 
              his difficulties.  Nevertheless, it would not be uncommon 
 
              for skin grafted areas and healed burn wounds to be 
 
              temperature sensitive and/or pressure sensitive for the 
 
              remainder of a person's life.  No definite functional 
 
              disability can be made at this time until at least one year 
 
              has passed from the time of his skin grafting.  I plan to 
 
              follow Mr. Bowers up to evaluate the effect of my 
 
              treatment.
 
              (Cl. Ex. 15)
 
         
 
              On May 6, 1986, Dr. Caropreso reported that the cream which 
 
         he had prescribed six months ago had failed to help claimant's 
 
         condition and that his medical treatment had not helped the 
 
         claimant's complaints.  Only additional surgery can be 
 
         recommended.  Claimant was discharged unless he elects to pursue 
 
         additional surgery such as a thicker graft, a pedicle flap, or 
 
         some form of microvascular surgery where thicker tissue is 
 
         grafted to the area (Cl. Ex. 17).
 
         
 
              The parties stipulated that claimant was off work from June 
 
         10, 1984, until January 6, 1985, which is the day after the 
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page   8
 
         
 
         
 
         injury to the day Dr. Muller, Dr. Yankey, Dr. Plank, Fasing and 
 
         claimant agreed that he should try to work on light duty.  These 
 
         dates are confirmed by Dr. Ruen (Cl. Ex. 16).  During that period 
 
         benefits were suspended for 13 days from November 16, 1984 to 
 
         November 29, 1984 because claimant failed to go see Dr. Yankey as 
 
         he was directed to do by the employer (Iowa Code section 85.39).  
 
         Fasing testified that claimant called him on the telephone on 
 
         November 14, 1984 to inquire about getting his workers' 
 
         compensation check.  Fasing said he told claimant it would be 
 
         coming with the letter that said that claimant was to go see Dr. 
 
         Yankey at 3:45 p.m. on November 16, 1984.  Defendants' exhibit D 
 
         is a copy of that letter dated November 14, 1984.  It has a 
 
         handwritten notation by Fasing at the bottom of the letter that 
 
         indicates that he told the claimant at 1:30 p.m. that day that 
 
         this letter was going out that night and that Fasing had notified 
 
         the claimant of what was on the letter.  The letter states it is 
 
         in regard to a possible return to work.  Fasing also noted at the 
 
         bottom of the letter that claimant was not too happy about it.  
 
         At the hearing Fasing testified that claimant ..called Dr. Yankey 
 
         a baby doctor.  Fasing said that when he found out claimant did 
 
         not keep the appointment he was instructed by his superior to 
 
         suspend the claimant's benefits.  A new appointment was made for 
 
         November 30, 1984, which claimant did keep.  The letter of 
 
         suspension of benefits is defendants' exhibit B.
 
         
 
              Claimant testified that Fasing told him about the 
 
         appointment but did not tell him the time and date of the 
 
         appointment.  Claimant further testified that he did not receive 
 
         the letter until November 17, 1985, the day after the appointment 
 
         date.  Claimant further stated that the rural road that he lived 
 
         on was out and that may have delayed delivery of the letter.
 
         
 
              The letter itself does not indicate that it was sent by 
 
         certified mail return receipt requested as the other defendants' 
 
         exhibits, but it may have been sent that way because Fasing 
 
         testified that he did not have the return receipt with him at the 
 
         hearing.  Fasing also testified that he did not have the 
 
         cancelled workers' compensation check so that it could be seen 
 
         what day it was cashed.
 
         
 
              The parties stipulated that claimant was off work again from 
 
         January 29, 1985 to April 14, 1985.  These dates are confirmed by 
 
         Dr. Ruen (Cl. Ex. 16).  It is not immediately clear from the 
 
         evidence why claimant did not work from January 29, 1985 to 
 
         February 5, 1985.  Benefits were suspended again for 13 days from 
 
         February 5, 1985 to February 19, 1985.  This was during the 
 
         period of light duty when claimant wore light shoes and was 
 
         supposed to cross-reference engineering materials in Fasing's 
 
         office.  Fasing stated that claimant would cross-reference 
 
         materials for 30 to 45 minutes with his foot elevated and then 
 
         claimant, at his own discretion, would walk approximately 52 feet 
 
         three or four times a day to file them.  By contrast, claimant 
 
         stated that he was required to file books and to be on his feet 
 
         all day in violation of Dr. Ruen's instructions of keeping his 
 
         foot elevated 30 to 45 minutes out of every hour (Cl. Ex. 12, p. 
 
         1).  Fasing said he called Dr. Ruen and described the work and 
 
         gave claimant the opportunity to hear the conversation by holding 
 
         the phone away from his ear.  Claimant on the other hand denied 
 
         that Fasing had called Dr. Ruen in his presence.  Dr. Ruen's 
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page   9
 
         
 
         
 
         office notes on February 5, 1985, do not record a call from 
 
         Fasing, however, at the same time they do not record the 
 
         restriction slip that Dr. Ruen gave to claimant on the same date 
 
         (Cl. Ex. 12, p. 1).  Defendants' exhibit C is a letter of 
 
         suspension of workers' compensation benefits for refusal to work 
 
         under Iowa Code section 85.33.  Claimant's exhibit 22 is a letter 
 
         of disciplinary layoff effective February 5, 1985 until February 
 
         19, 1985 for failure to follow instructions and insubordination 
 
         and refusing to work at the direction of Fasing in the 
 
         engineering department.
 
         
 
              The parties' stipulated the claimant was off work from May 
 
         19, 1986 to August 7, 1986.  Claimant testified that he returned 
 
         to work full time as a burn tender on May 12, 1986.  He worked 
 
         three days but it caused erosions on his foot.  He went to see 
 
         Dr. Caropreso and Dr. Caropreso took him off work.  Dr. Caropreso 
 
         was his own choice of physicians.  Claimant did not ask or tell 
 
         the employer that he was going to see Dr. Caropreso.  There was 
 
         no evidence that Dr. Caropreso notified the employer or insurance 
 
         carrier that he saw the claimant on that date.
 
         
 
              Claimant testified that he was never told that Dr. Caropreso 
 
         was no longer an authorized physician by the employer.  Claimant 
 
         denied he paid Dr. Caropreso and Fasing denied that the employer 
 
         or carrier had paid Dr. Caropreso.  There was evidence that Dr. 
 
         Caropreso had treated claimant for sore throat and other matters 
 
         in the past (Cl. Ex. 1).  Fasing testified that during this 
 
         period of time Dr. Muller was the only authorized physician.  Dr. 
 
         Muller said he could go back to work after he examined claimant 
 
         on June 17, 1986 (Cl  Ex. 19), but claimant did not do so.  
 
         Fasing said he did not inform claimant of Dr. Muller's letter, 
 
         but claimant's attorney received this report on July 24, 1986 
 
         according to the date stamp on the exhibit.  Also, it was brought 
 
         out that in the interrogatories claimant's attorney acknowledged 
 
         that the authorized physician was Dr. Muller at this time.  
 
         Claimant testified he did not get a return to work slip from Dr. 
 
         Muller and the company did not tell him he was released to come 
 
         back to work.  Claimant testified that he did not get a copy of 
 
         Dr. Muller's letter and that he did not know he was supposed to 
 
         return to work after seeing Dr. Muller.
 
         
 
              The office notes of Dr. Caropreso for May 19, 1986 verified 
 
         that claimant returned to work on May 12, 1986, May 13, 1986 and 
 
         May 14, 1986.  He had to wear steel toed boots which he had not 
 
         worn for a year.  He climbed stairs and worked in increased 
 
         temperatures, and this caused his foot to cramp.  Claimant said 
 
         his foot became stiff and he could barely walk on it.  Dr. 
 
         Caropreso states that Mr. Bowers further stated, "I don't care if 
 
         I ever go back there."  His examination found erythema probably 
 
         secondary to bandage usage and a 1 cm. superficial abrasion 
 
         through the skin graft in its central portion.  There was no 
 
         other sign of injury or infection.  Because of the ulceration he 
 
         recommended that claimant stay off work and come back and see him 
 
         in eight days (Cl. Ex. 18, p. 1).
 
         
 
              Claimant's exhibit 22 is a short note from Dr. Caropreso 
 
         that he saw claimant on the following dates in 1986 -- May 6, 
 
         1986, May 19, 1986, May 27, 1986, June 5, 1986, July 1, 1986, 
 
         July 7, 1986, July 22, 1986 and August 7, 1986.  Dr. Caropreso's 
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page  10
 
         
 
         
 
         next office note is for the date August 7, 1986 at which time he 
 
         says he has nothing to offer the claimant medically, he will 
 
         recommend customed fitted shoes, and that claimant should return 
 
         to work (Cl. Ex. 22).  There are no office notes or medical 
 
         reports for five of the office visits -- May 27, 1986, June 5, 
 
         1986, July 1, 1986, July 7, 1986 and July 22, 1986.
 
         
 
              Claimant testified that he still has difficulties with his 
 
         left foot.  He stated that he has episodic, periodic open 
 
         ulcerations, swelling, numbness and soreness and he feels they 
 
         will always be there.  There is a discolored area on his left 
 
         foot measuring approximately two inches by four inches.  The area 
 
         of the ulceration is approximately 1 1/2 inches x 2 inches.  The 
 
         pain is constant.  The skin is thin and dry.  The skin cracks and 
 
         breaks down easily.  It feels like dead skin.  The scar area is 
 
         very thin skin.  Weather changes effect it.  Heat burns this area 
 
         like a burn.  Swelling may last from one day to one week.  If he 
 
         walks long distances his foot gets sore.  Climbing ladders as a 
 
         burner helper or an electrician causes it to swell.  Climbing 
 
         stairs pulls the skin apart and causes it to bleed.  He cannot 
 
         ski because he cannot wear boots.  Jogging causes his foot to 
 
         swell, crack and break open.  The burn area itches all of the 
 
         time and he puts hand lotion on it every day.  Numbness comes and 
 
         goes.  Many of these complaints are the same complaints that the 
 
         claimant described to the doctors during the course of his 
 
         treatment.
 
         
 
              Cindy Baker testified that she has lived with claimant since 
 
         before the injury on June 9, 1984.  He had no problem with his 
 
         left foot prior to the injury.  She said he had constant pain, 
 
         itching and throbbing in his skin graft area.  He cannot walk 
 
         long distances.  He does have periodic erosions, ulcerations and 
 
         excoriations.  He has tried to get well and has done,nothing 
 
         contrary to that objective.  She has observed that his skin 
 
         continually cracks, breaks open and bleeds.  The burn area is a 
 
         different color and texture.  It is dry, tender, sensitive and 
 
         cracks open if it is bumped.  He cannot stand sunlight or heat on 
 
         the area.  He has to keep it covered up most of the time.  He 
 
         carries lotion and uses it all of the time.  He has done 
 
         everything he knows how to do and it still does not heal.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of June 9, 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, 
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page  11
 
         
 
         
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has proven by a preponderance of the evidence 
 
         that he is entitled to temporary total disability benefits from 
 
         June 9, 1984, the day of the injury, until January 6, 1985 which 
 
         is the day Dr. Muller, Dr. Yankey and Dr. Plank agreed that he 
 
         should try to return to work on light duty.  Dr. Ruen also 
 
         confirmed these same approximate dates (Cl. Ex. 12) and the 
 
         parties stipulated claimant was off work for this period of 
 
         time.
 
         
 
              An issue exists as to whether the claimant is entitled to 
 
         benefits from November 16, 1984 to November 29, 1984 for 13 days 
 
         for refusing or failing to keep an appointment with Dr. Yankey.
 
         
 
              Iowa Code section 85.39 states that the employee shall 
 
         submit to examinations requested by the employer without cost to 
 
         the 
 
         
 
         employee.  It further provides: "...The refusal of the employee 
 
         to submit to the examination shall suspend the employee's right 
 
         to any compensation for the period of the refusal.  Compensation 
 
         shall not be payable for the period of  suspension.O
 
         
 
              Fasing said he mailed the notice and it should have been 
 
         received prior to the appointment.  Claimant testified that he 
 
         received the letter the day after the appointment.  Fasing 
 
         testified that he informed claimant of the time and date of the 
 
         appointment verbally on the telephone on November 14, 1985.  
 
         Claimant denied that Fasing told him the time and date of the 
 
         appointment on the telephone.  This letter is not marked 
 
         certified mail return receipt requested as the other letters in 
 
         the defendants' exhibits, but Fasing testified that he did not 
 
         have the return receipt with him at the hearing.  Neither did he 
 
         have the cancelled check for the workers' compensation payment to 
 
         show what date it was cashed.  This problem of whether the 
 
         claimant was notified could have been avoided by Fasing had he 
 
         sent the letter certified mail return receipt requested in a 
 
         timely matter.  All of the other letters in the defendants' 
 
         exhibits were sent in this manner.  Therefore, it is determined 
 
         that claimant should not be denied benefits from November 16, 
 
         1984 to November 29, 1984 because it was not established by the 
 
         proponent of the suspension that the claimant had actual notice 
 
         of the time and date of the appointment.  Fasing's testimony was 
 
         controverted by the claimant's testimony.  Consequently, claimant 
 
         is entitled to temporary total disability benefits from June 10, 
 
         1984 to January 6, 1985.
 
         
 
              The evidence is not sufficient to determine the claimant's 
 
         entitlement to temporary partial disability benefits but the 
 
         parties did not indicate that that was an issue to be determined 
 
         by this decision.
 
         
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page  12
 
         
 
         
 
              The next issue to be decided is whether the injury was the 
 
         cause of additional temporary disability and whether the claimant 
 
         is entitled to temporary total disability benefits for the period 
 
         from January 29, 1985 to April 14, 1985.  The parties stipulated 
 
         the claimant was off work for that period of time.  Dr. Ruen 
 
         agreed to the same approximate dates (Cl. Ex. 16).  The evidence 
 
         is not sufficient to make a determination for the time between 
 
         January 29, 1985 and February 5, 1985.  It is not clear why 
 
         claimant did not work during this period of time, but on February 
 
         5, 1985 a dispute arose between Fasing and claimant as to whether 
 
         cross-referencing and filing the engineering booklets violated 
 
         the restrictions imposed by Dr. Ruen.  Fasing testified 
 
         that, claimant could sit and cross-reference for 30 to 45 minutes 
 
         and then get up and file the one pound materials only three or 
 
         four times a day.  Claimant on the contrary testified and 
 
         generally alleged that the filing entailed several trips and 
 
         violated the weight restrictions.  Fasing said he called Dr. Ruen 
 
         and described the work and Dr. Ruen approved it.  He gave the 
 
         claimant the opportunity to hear the telephone conversation.  
 
         Claimant on the other hand denied that Fasing called Dr. Ruen in 
 
         his presence.
 
         
 
              On February 4, 1985, Dr. Ruen said claimant could go back to 
 
         work on February 5, 1985 (Cl. Ex. 3, p. 4).  Dr. Ruen's notes do 
 
         not record a telephone call from Fasing on February 5, 1985; 
 
         however, neither do they record the restriction slip given to the 
 
         claimant also on February 5, 1985 (Cl. Ex. 12, p. 1).
 
         
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page  13
 
         
 
         
 
              On February 6, 1985, Dr. Ruen checked the foot and stated 
 
         that it is slightly improved and the best that he has seen this 
 
         injury to be.  This statement disproves the claimant's contention 
 
         that cross-referencing and filing had worsened the condition of 
 
         his foot (Cl. Ex. 3, p. 4).  The February 6, 1985 note also 
 
         records that claimant was having trouble at work regarding his 
 
         restrictions and had been suspended (Cl. Ex. 3, p. 4).  The notes 
 
         do not record that this restriction had been violated or in what 
 
         manner the restrictions had been violated.  Claimant could have 
 
         resolved this issue by asking Dr. Ruen's intervention on his 
 
         behalf if, in fact, the restrictions were violated but instead 
 
         claimant choose to refuse to work at the special task that had 
 
         been provided for him.  Considerable effort was expended by the 
 
         combined efforts of Dr. Muller, Dr. Yankey, Dr. Plank, Fasing and 
 
         claimant to get the claimant back to work on a light duty basis.  
 
         There is no reason to believe that Dr. Ruen would not have 
 
         intervened in claimant's behalf if Dr. Ruen's restrictions had 
 
         been violated.
 
         
 
              Iowa Code section 85.33(3) provides:
 
         
 
              If an employee is temporarily, partially disabled and the 
 
              employer for whom the employee was working at the time of 
 
              injury offers to the employee suitable work consistent with 
 
              the employee's disability the employee shall accept the 
 
              suitable work, and be compensated with temporary partial 
 
              benefits.  If the employee refuses to accept the suitable 
 
              work the employee shall not be compensated with temporary 
 
              partial, temporary total, or healing period benefits during 
 
              the period of the refusal.
 
         
 
              The claimant has the burden of proof that he is entitled to 
 
         benefits for this period of time.  The employer has proven that 
 
         employment was available which claimant could do through special 
 
         arrangements.  Claimant failed to prove by a preponderance of the 
 
         evidence that he could not do this work.  Consequently, claimant 
 
         is not entitled to temporary disability benefits from January 29, 
 
         1985 through March 5, 1985.
 
         
 
              Claimant has proven he is entitled to temporary total 
 
         disability benefits from March 6, 1985 to April 12, 1985 which is 
 
         from the date of his skin graft at Mayo Clinic (Cl. Ex. 13) to 
 
         the date Dr. Ruen released claimant to go back to work (Cl. Ex. 
 
         12, p. 2).
 
         
 
              The next issue is whether claimant is entitled to temporary 
 
         total disability benefits from May 19, 1986 to August 7, 1986 or 
 
         beyond while special shoes were ordered.  Claimant returned to 
 
         his old job on May 12, 1986 and worked three days. on May 19, 
 
         1986, claimant saw Dr. Caropreso because the steel toed boots 
 
         caused his foot to cramp.  Dr. Caropreso recommended that he not 
 
         work and report back in eight days.  Dr. Caropreso was claimant's 
 
         choice of physician.  Claimant did not ask the employer or tell 
 
         the employer he was going to see Dr. Caropreso.  There was no 
 
         evidence Dr. Caropreso reported to the employer that claimant had 
 
         seen him or that claimant was taken off work.  Claimant's 
 
         attorney acknowledged in the interrogatories that Dr. Muller was 
 
         the authorized physician at this time.  There is no indication 
 
         that Dr. Caropreso was an authorized physician at this time.  
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page  14
 
         
 
         
 
         Claimant testified that he had seen Dr. Caropreso earlier and no 
 
         one ever told him he was no longer an authorized physician.  
 
         However, claimant had not been treated for over a year and a-half 
 
         by Dr. Caropreso for this injury.  Notice to counsel constitutes 
 
         notice to the client.  If counsel knew that Dr. Caropreso was no 
 
         longer authorized, any failure to communicate that information to 
 
         claimant is to be held against claimant, not the employer.  
 
         Claimant, not the employer, selected claimant's counsel.
 
         
 
              Furthermore, claimant was told to come back in eight days.  
 
         Claimant did go back and did see Dr. Caropreso five times on May 
 
         27, 1986, June 5, 1986, July 1, 1986, July 7, 1986 and July 22, 
 
         1986, but there are no office notes or reports for these visits 
 
         introduced into evidence to determine whether visits were for 
 
         this injury or some other condition?  Did Dr. Caropreso release 
 
         the claimant to return to work eight days later on May 27, 1986 
 
         or on one of these subsequent visits?  The injury claimant 
 
         reported to Dr. Caropreso on May 19, 1986 was only a 1 cm. 
 
         superficial abrasion in the skin graft and erythema from bandage 
 
         application.  It does not seem like this would cause claimant to 
 
         be off work for another four months until August 7, 1986.
 
         
 
              Moreover, Dr. Muller said claimant was able to work on June 
 
         17, 1986 (Cl. Ex. 19).  This report was received by his attorney 
 
         on July 24, 1986.  Claimant said Dr. Muller's letter and 
 
         statement that he was able to work was never communicated to him.  
 
         This is possible, but not probable.  Claimant had the duty to 
 
         find out what,his work status was after seeing Dr. Muller if he 
 
         intended to establish that he was temporary totally disabled at 
 
         that time.  For the foregoing reasons it is found that the 
 
         claimant has not proven by a preponderance of the evidence that 
 
         he is entitled to temporary total disability benefits from May 
 
         19, 1986 to August 7, 1986 or thereafter while special boots were 
 
         possibly to be ordered for him by Dr. Caropreso.
 
         
 
              Claimant contends that he is entitled to permanent partial 
 
         disability benefits even though none of the doctors who treated 
 
         him found any permanent impairment or assessed a permanent 
 
         impairment rating.  Claimant cites Conyers v. Ling-Casler Joint 
 
         Venture, Volume 2, State of Iowa Industrial Commissioner 
 
         Decisions 309 (1984) appeal decision in which it was stated:
 
         
 
              ...The absence of a functional impairment rating does not 
 
              preclude an award.  The Iowa Administrative Procedure Act, 
 
              chapter 17A of the Iowa Code, and more specifically section 
 
              17A.14(5) recognizes utilization of "[t]he agency's 
 
              experience, technical competence and specialized knowledge" 
 
              to evaluate evidence.
 
         
 
              It should be noted that this authority is not generally used 
 
         as a substitute for available medical evidence.  This authority 
 
         is only used rarely as an exception to the general rule of 
 
         relying on medical expertise to establish impairment and the 
 
         degree of impairment.
 
         
 
              In this case Dr. Plank, a dermatologist, commented that 
 
         claimant's subjective complaints exceeded his objective medical 
 
         findings (Cl. Ex. 9).  He treated claimant at least nine times 
 
         over a six month period and observed the wound several times but 
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page  15
 
         
 
         
 
         made no finding of permanent impairment and did not give an 
 
         impairment rating.
 
         
 
              Dr. Yankey and Dr. Ruen treated claimant approximately 22 
 
         times for a three month period and saw the wound many times.  
 
         Neither doctor found any permanent impairment or gave an 
 
         impairment rating.  On the contrary, Dr. Ruen said there was no 
 
         functional impairment (Cl. Ex. 16).
 
         
 
              Dr. Irons, a plastic surgeon at the Mayo Clinic, found the 
 
         skin graft had a good take and he returned claimant to normal 
 
         work duties.  He made no finding of permanent impairment and gave 
 
         no impairment rating.
 
         
 
              Dr. Muller, a dermatologist at the Mayo Clinic, saw the 
 
         claimant approximately five times.  On June 17, 1986, he saw no 
 
         reason why claimant could not return to work.  He made no finding 
 
         of permanent impairment and gave no impairment rating.
 
         
 
              Dr. Caropreso saw claimant about 11 times in 1984 and 
 
         approximately eight times in 1986.  He saw the wound many times.  
 
         He even stated claimant "seems to be disabled from his burn wound 
 
         injury" but failed to use this opportunity to make his own 
 
         personal finding of permanent impairment or give a permanent 
 
         impairment rating on November 14, 1985.  Dr. Caropreso saw the 
 
         claimant approximately eight times in 1986, which were all more 
 
         than one year after the skin graft, and Dr. Caropreso did not 
 
         make a finding of permanent impairment or make an assessment of a 
 
         permanent impairment rating.
 
         
 
              If five competent doctors, most of whom are specialists, 
 
         viewed this wound injury on numerous occasions over a two year 
 
         period and did not find any permanent impairment or give an 
 
         impairment rating, it seems presumptuous for the hearing deputy 
 
         to endeavor to make a finding of permanent impairment and arrive 
 
         at an appropriate permanent impairment rating.
 
         
 
              Dr. Plank took at least one photograph of the injury and Dr. 
 
         Muller took more than one photograph of the injury but no 
 
         photographs were introduced into evidence by either party.
 
         
 
              In Arce v. Sandra Pollock d/b/a Electric Doughnut, Volume 
 
         IV, Iowa Industrial Commissioner Report 14 (Review-Reopening 
 
         1983) the hearing deputy did have the opportunity and advantage 
 
         of viewing the wound.  In this case, for reasons of their own 
 
         choosing, the wound was not displayed at the hearing.
 
         
 
              If five competent doctors who viewed the wound on myriad 
 
         occasions cannot find permanent impairment and assess a rating, 
 
         it does not seem appropriate for the hearing deputy who never saw 
 
         the wound and never saw even a photograph of the wound to attempt 
 
         to find permanent impairment or to conjecture what an appropriate 
 
         rating should be.
 
         
 
              This is not to say that the claimant has not suffered 
 
         because there is physical evidence that his skin does encounter 
 
         small ulcerations in the wound area which have caused him a great 
 
         deal of difficulty.  The problem is that several medical experts 
 
         did not believe it prevented him from working or that it caused 
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page  16
 
         
 
         
 
         him to be permanently impaired.  For this reason it must be 
 
         concluded from the evidence presented at the hearing that the 
 
         claimant has not proven by a preponderance of the evidence that 
 
         he sustained a permanent partial disability.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made:
 
         
 
              That the claimant was employed by the employer at the time 
 
         he sustained a severe burn injury to the lateral aspect of the 
 
         dorsum of his left foot on June 9, 1984.
 
         
 
              That the injury caused claimant to be off work for medical 
 
         treatment and recuperation from June 10, 1984 to January 6, 
 
         1985.
 
         
 
              That the dead conflict of testimony between Fasing and the 
 
         claimant on whether claimant received either verbal or written 
 
         notice to go to see Dr. Yankey on November 16, 1984 at the 
 
         employer's request is resolved in favor of the claimant because 
 
         the employer could have sent the notice by certified mail return 
 
         receipt requested and either failed to send it that way or failed 
 
         to produce the return receipt at the hearing.
 
         
 
              That the employer did prove that employment was available to 
 
         the claimant from January 29, 1985 to March 5, 1985 of a light 
 
         duty nature within the claimant's capability in the opinion of 
 
         his doctors.
 
         
 
              That the claimant did not prove by a preponderance of the 
 
         evidence that this work exceeded his restrictions or that he was 
 
         justified in refusing to do this work.
 
         
 
              That the claimant did lose time from work from March 6, 1985 
 
         to April 12, 1985 for a skin graft at the Mayo Clinic on March 6, 
 
         1985 and that he was recuperating until he was released to return 
 
         to work by Dr. Ruen on April 12, 1985.
 
         
 
              That claimant did not prove that Dr. Caropreso was an 
 
         authorized physician from May 6, 1986 through August 7, 1986 or 
 
         that he was unable to work during that period of time or 
 
         subsequent to it due to the injury of June 9, 1984.
 
         
 
              That none of the six doctors who treated claimant on several 
 
         occasions, Dr. Caropreso, Dr. Plank, Dr. Yankey, Dr. Ruen, Dr. 
 
         Irons or Dr. Muller found any permanent impairment or gave any 
 
         permanent impairment rating.
 
         
 
              That claimant is not entitled to mileage for his trips to 
 
         see Dr. Caropreso in claimant's exhibits 21 and 22.
 
         
 
              That claimant is entitled to medical mileage for one trip to 
 
         Mayo Clinic on July 2, 1986 for 190 miles at $.21 per mile in the 
 
         total amount of $39.90.
 
         
 
                                CONCLUSIONS OF LAW
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page  17
 
         
 
         
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously stated the following conclusions of 
 
         law are made:
 
         
 
              That the injury of June 9, 1984 was the cause of temporary 
 
         total disability from June 10, 1984 to January 6, 1985 and again 
 
         from March 6, 1985 to April 12, 1985 and that the claimant is 
 
         entitled to temporary total disability benefits for those periods 
 
         of time.
 
         
 
              That the injury of June 9, 1984 was not the cause of any 
 
         permanent partial disability.
 
         
 
              That the claimant is not entitled to medical mileage for his 
 
         trips to see Dr. Caropreso in 1986 but he is entitled to medical 
 
         mileage for his trip to the Mayo Clinic and return on July 2, 
 
         1986.
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant thirty point seven-one-four 
 
         (30.714) weeks of temporary total disability benefits for the 
 
         period June 10, 1984 to January 6, 1985 and five point 
 
         two-eight-six (5.286) weeks of temporary total disability 
 
         benefits for the period March 6, 1985 to April 12, 1985, a total 
 
         of thirty-six point zero-zero-zero (36.000) weeks of temporary 
 

 
         
 
         
 
         
 
         BOWERS V.LEHIGH PORTLAND CEMENT CO.
 
         Page  18
 
         
 
         
 
         total disability benefits at the rate of two hundred sixty-nine 
 
         and 93/100 dollars ($269.93) per week in the total amount of nine 
 
         thousand seven hundred seventeen and 48/100 dollars ($9,717.48).
 
         
 
              That the defendants pay these benefits in a lump sum less 
 
         credit for benefits previously paid.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 
              That defendants pay the claimant thirty-nine and 90/100 
 
         dollars ($39.90) for one hundred ninety (190) miles round trip 
 
         mileage to the Mayo Clinic on July 2, 1986.
 
         
 
              That each party pay their own costs of preparing the case 
 
         for hearing, except defendants are to pay claimant thirty and 
 
         no/100 dollars ($30.00) for the cost of a report from Dr. Irons 
 
         and thirty and no/100 dollars ($30.00) for the cost of a report 
 
         from Dr. Muller (Cl. Ex. 20) and defendants are to pay for the 
 
         cost of the shorthand reporter at the hearing.
 
         
 
              That the defendants file activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1, formerly Iowa Industrial Commissioner Rule 500-3.1.
 
         
 
         
 
              Signed and filed this 29th day of January, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey, III
 
         Attorney at Law
 
         214 North Adams
 
         P. 0. Box 679
 
         Mason City, Iowa 50401
 
         
 
         Mr. Jon Stuart Scoles
 
         Attorney at Law
 
         30 Fourth St. N.W.
 
         P. 0. Box 1953
 
         Mason City, Iowa 50401
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40; 1403.30
 
                                                 1800; 1803
 
                                                 Filed January 29, 1987
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RUSSELL W. BOWERS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     FILE NO. 766837
 
         LEHIGH PORTLAND CEMENT CO.,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40; 1403.30
 
         
 
              Burden of proof for a suspension of benefits under 85.39 for 
 
         refusal to see a doctor was upon the employer.  A dead conflict 
 
         of testimony as to whether claimant received timely notice of the 
 
         appointment was resolved in favor of the employee.
 
         
 
              Burden of proof to entitlement to temporary total disability 
 
         benefits was upon the employee.  Where employer proved light work 
 
         was provided that the employee could do, and then the employee 
 
         later refused to do it and received a disciplinary suspension, 
 
         was resolved in favor of the employer because employee did not 
 
         prove that he was justified in refusing to do the work.   
 
         (Section 85.33(3)).
 
         
 
         1800
 
         
 
              Claimant allowed temporary total disability from date of 
 
         injury to time when light work was provided and a second period 
 
         of time for a surgery and period of recuperation.
 
         
 
         1803
 
         
 
              Claimant established that he continued to have small 
 
         ulcerations and erosions in his burn wound on his foot up until 
 
         the time of hearing.  Four doctors did not make a finding of 
 
         permanent impairment or give a rating.  A fifth doctor said there 
 
         
 
         
 
         
 
                                                
 
                                                         
 
         was no impairment.  Permanent partial disability was not allowed 
 
         based on agency expertise where these doctors who had seen the 
 
         wound on several occasions declined to find impairment or give a 
 
         rating, and deputy was not shown the wound or the pictures that 
 
         were talked about in the exhibits.
 
 
 
         
 
         
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         _________________________________________________________________
 
                   :
 
         LARRY PITZER,  :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :      File No. 766890
 
         ROWLEY INTERSTATE,  :
 
                   :        A P P E A L
 
              Employer, :
 
                   :      D E C I S I O N
 
         and       :
 
                   :
 
         HOME INSURANCE COMPANY,  :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         _________________________________________________________________
 
         STATEMENT OF THE CASE
 
         Claimant appeals from an arbitration decision awarding temporary 
 
         total disability benefits and permanent partial disability 
 
         benefits.
 
         The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 6; and 
 
         defendants' exhibit A.  Both parties filed briefs on appeal.
 
         issues
 
         Claimant states the issues on appeal are claimant's entitlement 
 
         to medical benefits; whether he is an odd-lot employee; and the 
 
         extent of his disability.
 
         review of the evidence
 
         The arbitration decision filed October 23, 1989 adequately and 
 
         accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         applicable law
 
         The citations of law in the arbitration decision are appropriate 
 
         to the issues and evidence.
 
         
 
                                     analysis
 
         The analysis of the evidence in conjunction with the law in the 
 
         arbitration decision is adopted with the following additional 
 
         analysis.  Defendants informed claimant that his medical 
 
         treatment by Dr. Galbraith at the pain clinic was unauthorized.  
 
         Claimant proceeded to obtain the treatment.  However, claimant 
 
         was referred to Dr. Galbraith and the pain clinic by Dr. 
 
         Schroeder, who was an authorized physician.  Referral by an 
 
         authorized physician to another physician constitutes 
 
         authorization by the employer.  Conte v. Heartland Lysine, Inc., 
 
         Arbitration Decision, June 13, 1991.  Defendants, by authorizing 
 
         Dr. Schroeder, also authorized his referral to Dr. Galbraith.  
 
         Defendants cannot, with the benefit of hindsight, pick and choose 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         whether they will authorize the medical course of action their 
 
         authorized physician has chosen.  Defendants can choose the 
 
         physician, but defendants cannot interfere with the physician's 
 
         professional judgment on what treatment modalities the physician 
 
         determines to be appropriate.  Wright v. Super 8 Lodge of Des 
 
         Moines, Arbitration Decision, February 20, 1990.
 
         Claimant will be awarded medical benefits for the services of Dr. 
 
         Galbraith and the Chronic Pain Management Program, Columbia 
 
         Hospital, Milwaukee, Wisconsin.
 
         findings of fact
 
         1.  Claimant sustained an injury which arose out of and in the 
 
         course of his employment on May 3, 1984 when he slipped while 
 
         exiting a tractor-trailer he was driving for defendant employer.
 
         2.  Claimant has been under the care of numerous physicians, 
 
         underwent a diskectomy of C4-5 in January of 1985, and in October 
 
         of 1985 was found to have a bone spur on the left side at C4-5 
 
         for which he underwent a foraminotomy.
 
         3.  Claimant has sustained a permanent partial impairment as a 
 
         result of the injury.
 
         4.  As a result of the injury, claimant's capacity to earn has 
 
         been hampered.
 
         5.  Although released to return to work by numerous physicians on 
 
         more than one occasion, claimant has not returned to work and his 
 
         one attempt to return to work with defendant employer was 
 
         unsuccessful.
 
         6.  Claimant has not sought employment since that time.
 
         7.  Claimant has not participated to his fullest capabilities in 
 
         recovering from this injury and has not cooperated with medical 
 
         and vocational personnel to overcome its effects.
 
         8.  As a result of the injury, claimant is not capable of 
 
         returning to truck driving or to work which would require 
 
         continual extension of the neck.
 
         9.  Claimant has expressed his desire not to return to work and 
 
         not to retrain, but to have treatment.
 
         10. Defendants have gone beyond the requirements of the law to 
 
         provide treatment to claimant both medically and vocationally.
 
         11. Claimant's condition reached a plateau on November 18, 1986.
 
         12. Permanent partial disability benefits commenced November 19, 
 
         1986.
 
         13. Penalty benefits are not appropriate in this case.
 
         14. Claimant is not an odd-lot employee as claimant has not 
 
         demonstrated that the services he can perform are so limited in 
 
         quality, dependability and quantity that a reasonably stable 
 
         labor market for them does not exist.
 
         15. Claimant has sustained a permanent partial disability of 20 
 
         percent for industrial purposes entitling him to 100 weeks of 
 
         permanent partial disability benefits.
 
         conclusions of law
 
         Claimant, as a result of the injury of May 3, 1984, has sustained 
 
         a permanent partial disability of 20 percent for industrial 
 
         purposes.
 
         Claimant has failed to establish a prima facie case he is an 
 
         odd-lot employee.
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Claimant has failed to establish an entitlement to any further 
 
         medical benefits pursuant to Iowa Code section 85.27 at this 
 
         time.
 
         The treatment provided by Dr. Galbraith is authorized.
 
         Claimant has failed to establish entitlement to penalty benefits 
 
         under Iowa Code section 86.13.
 
         WHEREFORE, the decision of the deputy is affirmed and modified.
 
         
 
                                      order
 
         
 
              THEREFORE, it is ordered:
 
         That defendants shall pay unto claimant one hundred (100) weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         of two hundred eighty-eight and 15/100 dollars ($288.15) per week 
 
         commencing November 19, 1986.
 
         That defendants shall pay unto claimant one hundred thirty-two 
 
         point eight five seven (132.857) weeks of healing period benefits 
 
         at the stipulated rate of two hundred and 15/100 dollars 
 
         ($288.15) per week for the period from May 3, 1984 up to and 
 
         including November 18, 1986.
 
         That defendants shall pay the reasonable and necessary medical 
 
         expenses of the Chronic Pain Management Clinic and Dr. Galbraith.
 
         That defendants shall receive full credit for all disability 
 
         benefits previously paid.
 
         That payments which have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         That the costs of this action are assessed against defendants 
 
         including the cost of the transcription of the hearing 
 
         proceeding.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to rule 343 IAC 3.1.
 
         Signed and filed this ____ day of September, 1991.
 
         
 
         
 
         
 
                   ________________________________
 
                            BYRON K. ORTON
 
                       INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Dennis L. Hanssen
 
         Attorney at Law
 
         2700 Grand Ave., Suite 111
 
         Des Moines, Iowa 50312
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines, Iowa 50309
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      2700
 
                      Filed September 24, 1991
 
                      BYRON K. ORTON
 
                      DAD
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                      :
 
            LARRY PITZER,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 766890
 
            ROWLEY INTERSTATE,  :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            HOME INSURANCE COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            _____
 
            
 
            2700
 
            Short form affirmance of deputy's award of benefits, with 
 
            modification to award medical bills for a pain management 
 
            clinic denied by deputy.  Claimant has been referred to the 
 
            pain management clinic by an authorized physician.  Referral 
 
            by an authorized physician makes the referred physician 
 
            authorized as well.  Conte v. Heartland Lysine, Inc., 
 
            Arbitration decision, June 13, 1991.
 
            
 
 
            
 
 
 
                           
 
                           
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY PITZER,
 
         
 
              Claimant,                             File No. 766890
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         ROWLEY INTERSTATE,                         D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      OCT 23 1989
 
         HOME INSURANCE COMPANY,
 
                                                   INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
                                           
 
         
 
                                 STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Larry Pitzer, 
 
         claimant, against Rowley Interstate, employer, and Home Insurance 
 
         Company, insurance carrier, to recover benefits under the Iowa 
 
         Workers' Compensation Act as a result of an injury which arose 
 
         out of and in the course of his employment on May 3, 1984.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner September 28, 1988.  The record was 
 
         considered fully submitted at the close of the hearing.  The 
 
         record in this case consists of the testimony of claimant, Judy 
 
         Pitzer, his wife, and Daniel Thompson, claimant's exhibits 1 
 
         through 6, inclusive, which are all admitted for their probative 
 
         value, and defendants' exhibit A.
 
         
 
                                  ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved September 28, 1988, the following issues are presented 
 
         for resolution:
 
         
 
              1.  The extent of claimant's entitlement to weekly benefits 
 
         including temporary total disability/healing period benefits and 
 
         permanent partial disability benefits;
 
         
 
              2.  The applicability of the odd-lot doctrine;
 
         
 
              3.  Claimant's entitlement to certain medical benefits 
 
         pursuant to Iowa Code section 85.27; and
 
         
 
              4.  Claimant's entitlement to penalty benefits pursuant to 
 
         Iowa Code section 86.13.
 
         
 
                                FACTS PRESENTED
 
                                                    
 
                                                             
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on May 3, 1984, when he slipped while 
 
         exiting the tractor-trailer he was driving for defendant 
 
         employer. Claimant stated he experienced pain in his neck so 
 
         severe he could not turn his neck and that his whole body hurt 
 
         and ached for the next two weeks.  Claimant testified that by the 
 
         time he got home he was "so damn sick" he could "hardly walk."  
 
         Claimant explained he was initially treated conservatively and 
 
         with physical therapy and that in July of 1984, he was told by 
 
         his treating physician (Dr. Cairns) to return to work and if he 
 
         could not do the job to find something else to do.  Claimant 
 
         testified he wanted a second opinion and after seeing a Dr. 
 
         Bogdanowicz on two occasions he was released to return to work in 
 
         September 1984 with a 30 pound weight restriction.  Claimant 
 
         recalled he contacted defendant employer and that he was told he 
 
         could not return to work there with a weight restriction.
 
         
 
              Claimant offered he then came under the care of Eugene E. 
 
         Herzberger, M.D., who recommended surgery in December of 1984. 
 
         Claimant stated that surgery did not provide any relief for him 
 
         and that during the first six months thereafter the physical 
 
         therapy that was prescribed "just about killed" him.  Claimant 
 
         stated that he had another CT scan and myelogram in June 1985 
 
         after which a growth was found and that in January of 1986, he 
 
         underwent further surgery which again provided no relief from his 
 
         symptoms in the neck and left arm.  Claimant testified that 
 
         before the second surgery he began experiencing depression 
 
         which.affected his outlook on life and his personal 
 
         relationships, and that in May of 1986, he went to one pain 
 
         clinic and then another in October of 1987 in the hopes of 
 
         getting some symptom relief. Claimant recalled that his weekly 
 
         workers' compensation benefits ceased in May 1987 and that he had 
 
         no other source of income until he began receiving social 
 
         security benefits in May of 1988. Claimant explained he currently 
 
         suffers from the same neck and left arm pain that he had at the 
 
         time of his injury and that he cannot return to any of the work 
 
         he could do before the injury.
 
         
 
              On cross-examination, claimant revealed that defendant 
 
         employer offered him a position as a dispatcher which he worked 
 
         at for approximately one week but left because of pain 
 
         maintaining that "sitting there killed [him]."  Claimant 
 
         acknowledged that he did not attempt to find any other work after 
 
         his release, that he may have refused to get into a conditioning 
 
         program, that he did not discontinue physical therapy on his own, 
 
         but that after one day he felt "forced to do more than" he should 
 
         and that he "possibly" could have left weights given to him in an 
 
         elevator after leaving therapy.  Claimant admitted he had not 
 
         followed up with any possible jobs, and that he has not attempted 
 
         to get any retraining because he wanted treatment for his 
 
         injuries, not work and not retraining.  Claimant stated that 
 
         since he is now receiving social security benefits, he is "not 
 
         supposed" to look for work.
 
         
 
                                                    
 
                                                             
 
              Judy.Pitzer testified that prior to his injury claimant was 
 
         even tempered, always provided for his family and was sure of his 
 
         life, but that now claimant is worried about what he can and 
 
         cannot do and takes everything to heart.  Mrs. Pitzer stated that 
 
         claimant cannot sleep at night as he is up two or three times 
 
         during the course of the night, cannot put their daughter in his 
 
         lap or hold her, and that the whole atmosphere at home is 
 
         unhealthy.
 
         
 
              Daniel Thompson, of Madison, Wisconsin, identified himself 
 
         as a rehabilitation counselor who has worked with the 
 
         industrially injured and with cervical spine injuries.  Mr. 
 
         Thompson stated he became involved with claimant's case in 
 
         September 1987 and reviewed claimant's medical, hospital, 
 
         vocational rehabilitation, and psychological records.  Mr. 
 
         Thompson stated his first contact with claimant was by phone on 
 
         October 6, 1987, when he requested claimant come to Madison for a 
 
         psychological evaluation.  Mr. Thompson recalled that claimant 
 
         objected based on financial grounds but when Mr. Thompson offered 
 
         to go to claimant's home, claimant stated that he would be in 
 
         Madison around October 17 or 18 but would not agree to meet with 
 
         Mr. Thompson at that time either.  Mr. Thompson testified that on 
 
         November 11, 1987, he sent claimant a release for records which 
 
         claimant declined to provide on the basis that he "wanted to be 
 
         fixed" and that he was afraid if he met with Thompson he would 
 
         not be able to go to the pain doctor.  Mr. Thompson described an 
 
         "impasse" between claimant and vocational rehabilitation 
 
         services, Mr. Thompson's company, at this time even though 
 
         claimant's counsel encouraged claimant to meet with Mr. Thompson 
 
         but to no avail.  Mr. Thompson recalled cautioning claimant at 
 
         that time that the treatment he sought at the pain clinic did not 
 
         appear to be authorized.
 
         
 
              Mr. Thompson recalled that on December 3, 1987, he held a 
 
         meeting with claimant and his counsel to discuss the 
 
         rehabilitation process during which claimant expressed his 
 
         feelings that he was physically incapable of working in gainful 
 
         employment and that there was no point in placement in a low 
 
         paying job.  Mr. Thompson stated that the end result of this 
 
         meeting was that he would meet with claimant in his home and take 
 
         a survey of direct job placement prospects in Boscobel, 
 
         claimant's home town.  Mr. Thompson testified that the parties 
 
         never arrived at a mutual goal with regard to claimant's future 
 
         but that claimant did express some interest in his 
 
         self-employment type of his rehabilitation plan.  Mr. Thompson 
 
         stated that claimant expressed no interest in on-the-job training 
 
         and opined there was no reason to believe that defendant employer 
 
         would not have re-employed claimant had the case arisen.
 
         
 
              On cross-examination, Mr. Thompson testified he had no doubt 
 
         claimant's complaints of pain are real, that he cannot identify 
 
         any specific jobs which were available to claimant in Boscobel 
 
         (described by Mr. Thompson as a "difficult labor market") and 
 
         that although the MMPI which claimant took corroborated the fact 
 
         that claimant felt depressed, it "did not basically support 
 
                                                    
 
                                                             
 
         claimant's position."  Mr. Thompson opined that claimant has an 
 
         unreasonable expectation of getting "fixed" and that claimant is 
 
         angry because he is not perfect.  Mr. Thompson could not identify 
 
         any way to get beyond these feelings of claimant in order to 
 
         return him to gainful employment.
 
         
 
              Medical records show claimant originally sought treatment 
 
         for his injury from his family doctor, E. R. Randall, M.D., who 
 
         diagnosed muscle spasm of the left shoulder.  Claimant was also 
 
         seen by R. Scott Cairns, M.D., who diagnosed "acute strain of the 
 
         left shoulder with injury to posterior core to the brachial 
 
         plexus," administered an orthopedic exam, a cervical myelogram, 
 
         and a CT scan and concluded that the findings from those tests 
 
         were consistent with a herniated nucleus pulposis at C4-C5 on the 
 
         left.  In consultation, claimant was seen by S. Rasmus, M.D., who 
 
         recommended conservative treatment.  On referral from Dr. 
 
         Randall, claimant saw W. M. Bogdanowicz, M.D., in October 1984, 
 
         with claimant expressing "a continuous complaint of pain in the 
 
         area of his neck and, also, some pain in the left shoulder."  
 
         (Claimant's Exhibit 1, page 71)  Dr. Bogdanowicz recommended "I 
 
         would prefer to take a more conservative posture and wait and see 
 
         what happens. I advised Mr. Pitzer to go to work with limitation 
 
         of heavy lifting to thirty pounds starting next Monday, October 
 
         8th.  I feel that he should at least try and see what he can do 
 
         when he works."  (Cl. Ex. 1, p. 71)
 
 
 
                                
 
                                                             
 
         
 
              On December 4, 1984, claimant was evaluated by Eugene E. 
 
         Herzberger, M.D., neurological surgeon, who opined that claimant 
 
         "would benefit from a discectomy of C4-5 by an anterior approach 
 
         associated with arthrodesis at the same level."  Dr. Herzberger's 
 
         notes reflect claimant originally rejected a surgical approach to 
 
         the treatment of the herniated disc but ultimately underwent the 
 
         procedure recommended on January 29, 1985.  When next seen by Dr. 
 
         Herzberger on May 1, 1985, claimant was noted to be doing "well" 
 
         but with some complaints and on June 5, 1985, claimant was sent 
 
         to physical therapy.  Dr. Herzberger's notes of June 6, 1985 
 
         indicated claimant phoned expressing a desire to quit the 
 
         physical therapy because it "makes him worse."  Claimant was 
 
         encouraged to continue but contacted the doctor's office again on 
 
         June 11, 1985 to renew his desire to quit therapy "or get some 
 
         pain pills." Claimant was provided some prescriptive medication 
 
         and again encouraged to continue the therapy.  When claimant 
 
         failed to progress as expected, a new metrizmide myelogram and CT 
 
         scan of the cervical spine were ordered which showed that "the 
 
         defect at C4-5 on the left side is definitely a bone spur."  Dr. 
 
         Herzberger noted in October 1985 that there was no indication for 
 
         any surgical treatment "as the pain is probably not related to 
 
         the bone spur but most probably related to perineural fibrosis" 
 
         and claimant was to be seen in the future on an "as needed" 
 
         basis.
 
         
 
              Just prior to claimant beginning treatment with Dr. 
 
         Herzberger he began working with Mary Ann Buck, R.N., of 
 
         Professional Rehabilitation Management, Inc.  In her original 
 
         report dated October 19, 1984, Ms. Buck noted there were 
 
         conflicting opinions concerning claimant's medical status and 
 
         capability and recommended an independent medical exam, which is 
 
         how claimant came under the care of Dr. Herzberger.  Ms. Buck 
 
         reported that during a conversation with claimant on November 2, 
 
         1984, claimant relayed problems with insomnia, nervousness, left 
 
         arm numbness, and elevated blood pressure.  Ms. Buck accompanied 
 
         claimant on his visits to Dr. Herzberger's office, and noted that 
 
         after the visit on January 14, 1985, when Dr. Herzberger 
 
         indicated claimant could expect to return to work as a truck 
 
         driver after surgery claimant became upset and said, "Nobody 
 
         believed how hard he had to work as a truck driver and what had 
 
         been expected of him."  (Cl. Ex. 2, p. 139)  Ms. Buck recorded 
 
         her impression as "Since Larry became extremely agitated and 
 
         talked about his employer and the demands made on him during the 
 
         physician's visit, he may not desire to return to employment at 
 
         Rowley Interstate, should he be medically able."  (Cl. Ex. 2, p. 
 
         139)  Ms. Buck continued to follow claimant's progress subsequent 
 
         to his surgery and accompanied claimant on follow-up visits with 
 
         Dr. Herzberger, noting in her report of May 1, 1985:
 
         
 
              1.  Since the accident, Larry has had some financial 
 
                  stresses which has caused him to be occasionally 
 
                  irritable.
 
         
 
              2.  Larry is recuperating as expected and has followed the 
 
                                                    
 
                                                             
 
                           physician's orders faithfully.  Dr. Herzberger has 
 
                  increased Larry's activity level so he will be prepared 
 
                  to return to work as a truck driver in three months.
 
         
 
              3.  Larry seemed a little undecided as to whether he wishes 
 
                  to return to Rawley [sic] Interstate, and will give that 
 
                  issue further consideration.
 
         
 
              4.  Mr. Baumhover, employer, seemed pleased that Larry was 
 
                  recuperating and may be able to return as a driver in 
 
                  three months.
 
         
 
         (Cl. Ex. 2, p. 126)
 
         
 
              Ms. Buck reported that when she contacted claimant on May 
 
         29, 1985, claimant relayed that his "neck and left arm 'were not 
 
         right'" and that claimant did not think he could do the type of 
 
         activity associated with a work hardening program which had been 
 
         approved by Dr. Herzberger.  Claimant told Ms. Buck that 
 
         "everyone was trying to push him out the door when he was not yet 
 
         ready" (a complaint voiced repeatedly by both claimant and Mrs. 
 
         Pitzer at hearing).  Ms. Buck recorded her impressions in a 
 
         report dated June 5, 1985 as:
 
         
 
              1.  The claimant was and remains, extremely cautious and 
 
                  resistant to any activity which causes him discomfort. 
 
                  He is pessimistic and constantly fears reinjury and a 
 
                  limited recovery.  The claimant's attitude is 
 
                  persistently negative and may effect his actual 
 
                  recovery.
 
         
 
              2.  The claimant needs a great deal of support and 
 
                  encouragement as he always "fears the worse."  He dwells 
 
                  on his condition and the situation he is in, because of 
 
                  his injury.
 
         
 
              3.  Dr. Herzberger personally explained to the claimant that 
 
                  therapy three times a week at Finley Hospital will 
 
                  benefit him and in no way be detrimental to his 
 
                  condition.  Larry stated he would stop therapy if he 
 
                  feels too much pain, again dwelling on the negative 
 
                  possibilities rather than having a positive outlook.
 
         
 
              4.  There may be a delay in the claimant's return to work 
 
                  and there remains some doubt in my mind about his 
 
                  returning to Rawley [sic].  There may be an unconscious 
 
                  desire, by the claimant, to work for another employer.  
 
                  He has frequently commented that Rawley [sic] is not 
 
                  reasonable with their drivers.
 
         
 
         (Cl. Ex. 2, P. 122)
 
         
 
              Ms. Buck reported she contacted claimant's physical therapy 
 
         at Finley Hospital after Dr. Herzberger's office called to relay 
 
         that claimant had experienced a problem following through with 
 
                                                    
 
                                                             
 
         his first physical therapist session.  Ms. Buck summarized the 
 
         conversation with the physical therapist as:
 
         
 
                   I called to speak with Doug Crosby, Larry's physical 
 
              therapist at Finley Hospital.  As he was occupied with 
 
              another patient, the assistant told me she was familiar with 
 
              what had occurred regarding Larry and told me that Larry had 
 
              objected to any and all of the therapy, complaining that he 
 
              was being forced to do more than he thought he should.  She 
 
              told me that Larry was given weights to use during home 
 
              therapy and those were found in the elevator when Larry left 
 
              that day.
 
         
 
                   On 6-7, 6-10 and 6-11-85, I made additional attempts to 
 
              speak personally with Larry's therapist, but he was never 
 
              available nor did he return my calls as was requested.
 
         
 
         (Cl. Ex. 2, p. 116)
 
         
 
              Ms. Buck reported claimant was to "take it easy" and a 
 
         follow-up appointment with Dr. Herzberger was set for July 26, 
 
         1985.
 
         
 
              In July 1985, claimant's file at Professional Rehabilitation 
 
         Management, Inc., was transferred to Jane M. Collentine, R.N., 
 
         who reported that Mary Ann Buck was no longer with the firm.  Ms. 
 
         Collentine accompanied claimant to his follow-up appointment with 
 
         Dr. Herzberger on August 12, 1985, during which claimant 
 
         expressed a willingness to continue physical therapy at Boscobel 
 
         Hospital, and in a report dated August 29, 1985, Ms. Collentine 
 
         wrote that claimant was cooperating in the Boscobel physical 
 
         therapy program, that his attendance was excellent, that he was 
 
         able to tolerate the physical therapy well, and that he was 
 
         trying to be more active.  In a report dated October 18, 1985, 
 
         Ms. Collentine reported her impression as:
 
         
 
              1.  The physician is not willing to sign a work release at 
 
                  this time.  He is attempting to force the claimant to 
 
                  think about returning to work and has discontinued 
 
                  physical therapy.
 
         
 
              2.  The claimant is not interested in returning to his 
 
                  former employer as he feels he is physically unable to 
 
                  do the work expected of him.
 
         
 
              3.  The claimant has made positive plans to go to the 
 
                  vocational office and has been looking at the want ads. 
 
                  PRM vocational interveniton [sic] may be a future 
 
                  consideration and should be discussed with the 
 
                  customer.
 
         
 
              4.  At the time of the appointment on 10-9 at Dr. 
 
                  Herzburger's [sic], Larry had referred to the fact that 
 
                  he might be selling some land for a wild life sanctuary. 
 
                  It is unknown if the business venture he mentioned on 
 
                                                    
 
                                                             
 
                           10-18 is related to this.
 
         
 
         (Cl. Ex. 2, p. 102)
 
         
 
              Much concern was expressed in Ms. Collentine's report of 
 
         November 6, 1985 over her failure to secure claimant's release to 
 
         return to work from Dr. Herzberger and as a consequence thereof, 
 
         Ms. Collentine made a tentative appointment at the University of 
 
         Wisconsin's neurosurgery department with Dr. Allan Levin.  A 
 
         return-to-work slip from Dr. Herzberger dated November 8, 1985, 
 
         sent to Ms. Collentine, reflects that claimant could return to 
 
         work in the "near future" with "no heavy lifting,.excessive 
 
         bending or stretching, heavy pulling or pushing."  Dr. Herzberger 
 
         did release claimant to return to work as a truck dispatcher 
 
         sometime thereafter when Ms. Collentine advised Dr. Herzberger 
 
         that claimant had been offered such a position.  According to Ms. 
 
         Collentine's report of December 12, 1985, on November 14, 1985 
 
         claimant was instructed to contact defendant employer to make 
 
         arrangements to begin employment that weekend as a weekend 
 
         dispatcher but that claimant had not called defendant employer 
 
         until the following Monday (November 18) and that claimant had 
 
         advised the company he would not be able to return to work until 
 
         after he had been seen at the Gunderson Clinic.  Defendants had 
 
         not authorize such an appointment and, at the direction of Greg 
 
         Goodwin, of defendant insurance company, Ms. Collentine cancelled 
 
         claimant's appointment for November 25, 1985.  Claimant did 
 
         return to work and Ms. Collentine reported:
 
         
 
                   On 12-9-85, I also talked with Larry....Larry explained 
 
              that he had been working continuously from Wednesday of the 
 
              previous week.  This would be five continuous days at an 
 
              eight hour day.  On the weekend he did just dispatching, but 
 
              on the other days, he was asked to be a file clerk in the 
 
     
 
                                
 
                                                             
 
              office.  He had no objections to that, as a matter of fact, 
 
              he said that he was enjoying it, but it did not cause 
 
              discomfort with his left arm.  He stated he had been unable 
 
              to sleep since working and that "it is killing me."  Larry 
 
              added that he was working for $5.00 an hour, and had no idea 
 
              how his family would manage on that income.
 
         
 
         (Cl. Ex. 2, P. 87)
 
         
 
              Ms. Collentine accompanied claimant on his appointment with 
 
         Dr. Levin December 11, 1985 and reported Dr. Levin's observations 
 
         as:
 
         
 
              1)  there may be some degenerative changes within that disc 
 
              at C4-5,  2)  the spur that is noted in the medical records 
 
              which remained in myelogram three months after the surgery 
 
              of January, 1985, continues to be there and needs to be 
 
              removed, 3)  the claimant has maximal discomfort in his left 
 
              shoulder and left arm.  This most likely is related to the 
 
              bone spur and mild displacement of the C4-5 disc.  There is 
 
              no bulging, but there is a disc formation at the old 
 
              operative area;  4) some of the claimant's physiological 
 
              complaints do not "fit." He explained that the claimant has 
 
              been in pain for nearly one year, and perhaps that is why he 
 
              over-demonstrates some physical complaints;  5)  there is a 
 
              change in the left arm. The neurological tests are unusual.
 
         
 
         (Cl. Ex. 2, p. 88)
 
         
 
              On Dr. Levin's recommendation, Claimant underwent a 
 
         posterior left C4-5 semi-hemilaminectomy and foramenotomy on the 
 
         left C-5 root on January 14, 1986.  Dr. Levin saw claimant on 
 
         follow-up February 12, 1986 and indicated at that time that 
 
         claimant stated his left arm pain was 50 percent better but that 
 
         he continued to have left shoulder pain.  It was recommended that 
 
         claimant start a progressive exercise program for his left arm 
 
         and claimant began physical therapy sessions at Boscobel 
 
         Hospital.  Claimant returned to see Dr. Levin in a follow-up 
 
         visit on April 9, 1986, at which time claimant was released to 
 
         return to work with a cervical collar on and maximum lifting of 
 
         10 to 15 pounds.  Ms. Collentine accompanied claimant to this 
 
         appointment and, after claimant had the opportunity to see Dr. 
 
         Levin privately, was called into the room by claimant.  Ms. 
 
         Collentine reported what transpired as:
 
         
 
                   Dr. Levin made the statement that the claimant was 
 
              doing very well and that he had successfully reached a 
 
              period of being 3 months post operative with very little, if 
 
              any, neck pain and some arm pain.  He felt that the arm pain 
 
              was related to a nerve entrapment which was not related to 
 
              this worker's compensation case.  He stated that 3 times and 
 
              added that the nerve entrapment is related to the ulnar 
 
              nerve which radiates down his lower left arm and makes a 
 
              pain or numbness in the little finger of his left hand.  The 
 
              physician stated that somehow the claimant had developed 
 
                                                    
 
                                                             
 
                   this problem and that it had not been evident on their 
 
              initial evaluation in December of 1985.  Dr. Levin used this 
 
              comment in saying again, that this development was not 
 
              related to the original injury or his past surgery and that 
 
              it was a new development. He stated he would have to go to 
 
              some other doctor for this problem and at best would receive 
 
              an E.M.G. to help diagnose the situation.
 
         
 
                   The physician stated that the claimant had reached 
 
              maximum healing and that was a customary time table after 3 
 
              months from the procedure that was performed on the 
 
              claimant.
 
         
 
                   When I asked Dr. Levin if the claimant could return to 
 
              work and I attempted to discuss the job description, the 
 
              physician stated that he did not know about handling this 
 
              and asked if this arrangement could be handled between the 
 
              claimant and myself.  I stated no, that the physician must 
 
              make this decision and I had talked with his employer who 
 
              will reinstate Larry In [sic] light duty job.  After 
 
              carefully reviewing the information in the work analysis, 
 
              Dr. Levin felt that the claimant could return to work if he 
 
              wore a cervical collar and felt that the driving should not 
 
              be a problem to Larry.  He completed a return to work 
 
              release for the claimant....
 
         
 
                   At this time, the claimant was talking very loudly to 
 
              the physician and said "I cannot return to work, I have 
 
              little children to feed, I cannot drive that far, you cannot 
 
              do this to me", and other comments.  At one point, the 
 
              claimant slapped Dr. Levin's leg and the physician stated 
 
              that the claimant could not come in here and yell at him.
 
         
 
                   The physician wrote an order for a cervical collar and 
 
              the claimant was instructed to go to the lower part of the 
 
              clinic to the brace shop to receive it.  I had the return to 
 
              work statement copies for the claimant and as I was handing 
 
              it to him, he stated "I have 30 days to go back to work, 
 
              don't I"?  I stated that I had not heard of that rule, and 
 
              his employer would be contacting him probably within the 
 
              next 5 to 7 days.
 
         
 
         (Cl. Ex. 2, pp. 59-60)
 
         
 
              After consultation with defendant insurance carrier, Ms. 
 
         Collentine noted it was decided on May 7, 1986 that no further 
 
         activity would be generated in claimant's case at that time and a 
 
         target date of August 1986 was set to close the file.
 
         
 
              On May 9, 1986, Dr. Levin noted claimant was referred to the 
 
         pain clinic at University Hospital (Wisconsin) for evaluation and 
 
         management of persistent neck pain.  After claimant's first visit 
 
         to the pain clinic on June 10, 1986, Marvin J. Hoffert, M.D., 
 
         assistant professor of the department of neurology, recorded his 
 
         impression as:
 
                                                    
 
                                                             
 
         
 
              By history and physical examination this patient appears to 
 
              have a post traumatic left C5 radiculopathy.  After two 
 
              failed surgical procedures it is unlikely that there is much 
 
              more to offer this patient for that problem.  However, he 
 
              does appear to be clinically depressed and also appears to 
 
              have a myofascial syndrome, both of which are contributing 
 
              no doubt to his pain complaint.  Since these problems are 
 
              more amenable to treatment, they will be approached 
 
              vigorously.
 
         
 
         (Cl. Ex. 1, p. 28)
 
         
 
              Dr. Hoffert recommended physical therapy, medication and a 
 
         return follow-up visit in one month.  In July, Dr. Hoffert 
 
         increased claimant's medication, administered trigger injections 
 
         on the "left and right of C6 level paraspinous musculature" and 
 
         claimant was to return to the clinic in another month.  At the 
 
         August appointment, claimant reported that "on amitriptyline 200 
 
         mg qHS, he experiences some confusion and occasional 
 
         hallucinations.  He has felt that there are people in the room 
 
         and has attempted to urinate on the wall.  He is concerned about 
 
         these side effects and would like to decrease his medication."  
 
         (Cl. Ex. 1, p. 21)  The medication was decreased, physical 
 
         therapy was continued and claimant was to return to the clinic in 
 
         another month.  On September 9, 1986, Dr. Hoffert reported:
 
         
 
              The patient reports that he is now involved in an exercise 
 
              program involving vigorous isometrics and exercises with 
 
              four pound weights.  When he does those exercises, his 
 
              muscles hurt all over and he feels in general he has gone a 
 
              step backwards in his level of comfort.  Regarding 
 
              depression, the patient has reduced his amitriptyline to 150 
 
              mg qHS and no longer has hallucinations and is still able to 
 
              sleep well.
 
         
 
                   Physical examination shows normal tone in the muscles 
 
              previously abnormal, but with some tenderness to palpation 
 
              of the low cervical paraspinous muscles bilaterally.
 
         
 
                   ASSESSMENT:  Despite the patient's complaints, his 
 
              physical examination suggests progress.  However, his 
 
              exercises are probably too vigorous for him at this point 
 
              and need to be slacked back.
 
         
 
         (Cl. Ex. 1, p. 20)
 
         
 
              On November 18, 1986, Dr. Hoffert referred claimant to the 
 
         "physical capacity clinic for physical capacity assessment and 
 
         vocational counseling" finding this "reasonable" because of 
 
         claimant's "concern about his future and his plateau in 
 
         treatment."  Claimant was advised to return to the clinic on a 
 
         "PRN" basis.  Dr. Hoffert referred claimant to Professional 
 
         Rehabilitation Services, Ltd., for a physical capacities 
 
         evaluation "relative to a neck injury...sustained in May 1984 
 
                                                    
 
                                                             
 
         while on the job" and the same was done December 8, 1986 by James 
 
         Agre, M.D.  Dr. Agre rendered a diagnosis of "chronic neck pain 
 
         and some radicular pain of the C5 nerve root on the left.  He 
 
         also has some problems with anxiety," opined that the injury as 
 
         described, "could well have lead to a herniated cervical disc and 
 
         subsequential problems," and concluded that:
 
         
 
                   Using the Wisconsin Administrative code for Workers 
 
              Compensation and also using the AMA guidelines for 
 
              evaluation of permanent partial disability, Mr. Pitzer has a 
 
              10% disability due to chronic cervical pain.  This takes 
 
              into account decreased range of motion, decreased strength, 
 
              and chronic pain in the neck and left upper extremity.
 
         
 
         (Cl. Ex. 2, pp. 36-37)
 
         
 
              Dr. Agre found that during an eight hour workday claimant 
 
         could sit, stand and walk, each one hour at a time and a total of 
 
         six hours; that claimant could continuously lift, carry and push 
 
         or pull one to four pounds, occasionally five to ten pounds; that 
 
         claimant could frequently bend, squat and reach above shoulder 
 
         level using the right extremity, occasionally climb and never 
 
         crawl; and that claimant could not drive automotive equipment or 
 
         be exposed to dust fumes and gases.  On March 15, 1987, Jane 
 
         Collentine reported:  "A request for vocational rehabilitation 
 
         has been obtained.  At this time, further medical management 
 
         intervention would not appear to be warranted" and closed her 
 
         file.
 
         
 
              Defendants referred claimant to Betsy Marion Hovde, M.S., 
 
         vocational rehabilitation counselor with Professional 
 
         Rehabilitation Services, Ltd., for a "vocational evaluation to 
 
         determine considerations for vocational rehabilitation."  Ms. 
 
 
 
                                
 
                                                             
 
         Hovde summarized her April 20, 1987 assessment as:
 
         
 
              He seemed motivated to do well on testing and was very 
 
              interested in getting back to work.  He expressed a great 
 
              deal of frustration at his current situation, vocationally, 
 
              socially, financially, and physically.
 
         
 
                   Mr. Pitzer indicates that he is extremely interested in 
 
              returning to work.  He reported that his wife currently does 
 
              not work and they share in the care of their two young 
 
              children.  He expressed a desire to return to the role of 
 
              the "bread-winner" and expressed feelings of frustration 
 
              with his current financial situation.  He indicated that the 
 
              wages received would be very important to him and he feels 
 
              that an acceptable wage would be $8.00 an hour.
 
         
 
                   ....
 
         
 
                   In order for Mr. Pitzer to return to gainful 
 
              employment, he will need to find or design a job which will 
 
              meet his restrictions.  Preferably, the job should fall into 
 
              the sedentary work category which may be defined as:  
 
              lifting 10 pounds maximum and occasionally lifting and/or 
 
              carrying such articles as dockets, ledgers, and small tools. 
 
               Although a sedentary job is defined as one which involves 
 
              sitting, a certain amount of walking and standing is often 
 
              necessary in carrying out job duties.  Jobs are sedentary if 
 
              walking and standing are required only occasionally and 
 
              other sedentary criteria are met.  The job would need to 
 
              allow Mr. Pitzer the flexibility to change positions 
 
              frequently, as he is unable to maintain one position longer 
 
              than a one-hour period (from the physical capacities 
 
              restrictions indicated by Dr. James Agre).  The job could 
 
              not require proficient finger and manual dexterity as Mr. 
 
              Pitzer is extremely limited in these areas.
 
         
 
                   ...In order for Mr. Pitzer to receive vocational 
 
              training in a new field, he would first need to obtain his 
 
              GED.  Such could likely be obtained within a relatively 
 
              short period of time.  Also, on-the-job training would be an 
 
              alternative method for Mr. Pitzer to gain new vocational 
 
              skills.  Such can be arranged via a vocational 
 
              rehabilitation agency.
 
         
 
         (Cl. Ex. 2, pp. 21-22)
 
         
 
              Ms. Hovde recommended:
 
         
 
                   There are a number of vocational possibilities 
 
              available to Mr. Pitzer.  In order that he might maximize 
 
              his potential, I would recommend that he engage in 
 
              vocational rehabilitation counseling.  The focus of the 
 
              counseling would be upon developing the vocational assets 
 
              identified in this evaluation, matching such assets with 
 
              occupational opportunities, providing training (if 
 
                                                    
 
                                                             
 
                   indicated), developing job opportunities, providing 
 
              job-seeking skills assistance, arranging on-the-job training 
 
              (if indicated) and providing follow-up services to insure 
 
              successful vocational adjustment.  A vocational 
 
              rehabilitation counselor could provide, coordinate, and 
 
              expedite such services.
 
         
 
         (Cl. Ex. 2, pp. 22-23)
 
         
 
              Ms. Hovde met again with claimant on May 29, 1987 to discuss 
 
         "vocational rehabilitation possibilities."  In a letter to 
 
         defendant' counsel dated June 18, 1987, Ms. Hovde reported that 
 
         although claimant was "extremely unhappy with his situation," 
 
         claimant was not "yet to the point of considering alternative 
 
         vocational scenarios" and that he "dismissed as unfeasible" every 
 
         possibility which was suggested to him.  Ms. Hovde opined that 
 
         given claimant's responses to vocational rehabilitation 
 
         alternatives, "prognosis for successful rehabilitation is 
 
         guarded" and recommended a three step plan toward returning 
 
         claimant to work, including return-to-work possibilities with 
 
         defendant employer (with work hardening, vehicle adaptation, 
 
         psychological counseling and relocation as intervening steps), 
 
         exploring return to work with another employer and exploring 
 
         retraining possibilities.
 
         
 
              Claimant returned to the University of Wisconsin Hospitals 
 
         and Clinics Multidisciplinary Pain Clinic on October 20, 1987. 
 
         Mark E. Schroeder, M.D., claimant's "pain manager" reported:
 
         
 
              It was the consensus of the Pain Conference that Mr. Pitzer 
 
              would benefit from an inpatient pain management program.  In 
 
              light of our belief that his neck is structurally sound and 
 
              he is at low risk for further neurologic damage, we believe 
 
              that the appropriate rehabilitation of his neck and shoulder 
 
              muscles should be undertaken in such an inpatient setting.  
 
              I recommended to Mr. Pitzer the program at the University of 
 
              Wisconsin Hospital and Clinics directed by Dr. James Agre or 
 
              a program at Mercy Hospital in Des Moines, Iowa, under the 
 
              direction of Dr. Blessing.  I discussed financial 
 
              considerations with the patient and indicated that since 
 
              this was a work related accident that the cost of these 
 
              programs are often borne by Worker's [sic] Compensation.  
 
              Mr. Pitzer has retained a lawyer and he will receive copies 
 
              of these Pain Clinic records to aid him in obtaining 
 
              appropriate funding for the inpatient pain management 
 
              program.
 
         
 
         (Cl. Ex. 1, p. 12)
 
         
 
              Dr. Schroeder opined that claimant was not able to work and 
 
         would remain incapacitated until "he is treated in an inpatient 
 
         pain management program."
 
         
 
              In September of 1987, claimant's case at Professional 
 
         Rehabilitation Services, Ltd., was transferred from Ms. Hovde to 
 
                                                    
 
                                                             
 
         Dan Thompson, M.S., CRC, (whose oral testimony was reported 
 
         earlier in this decision).  Mr. Thompson summarized his opinions 
 
         in a report dated November 11, 1987 as:
 
         
 
                   I believe at this point in time that there is very 
 
              little more that I can do unless somebody can talk this 
 
              gentleman into proceeding with rehabilitation.  I might add 
 
              that if the physical capacities evaluation that was 
 
              generated in December of 1986 is relatively correct at this 
 
              point in time, Mr. Pitzer is not only precluded from any 
 
              occupation that he previously engaged in including truck 
 
              driving, but it will also take an employment site that 
 
              allows for maximum flexibility.  He is technically only 
 
              allowed to sit, stand, and walk for one hour at a time so it 
 
              would have to be a position where he could vary his 
 
              activities tremendously.  In reviewing his aptitude scores, 
 
              the GATB indicates that he is at the 26th percentile in 
 
              general learning ability which would make it difficult for 
 
              him to succeed in any type of formal or sophisticated 
 
              training program.  It should be pointed out that Mr. Pitzer 
 
              has been polite and very straight-forward with this 
 
              counselor   It would appear in our discussions he has a 
 
              great deal of anger and despair but he hasn't directed any 
 
              of it at this counselor.
 
         
 
                   Finally, Larry indicates that he would like to go to 
 
              Milwaukee to a pain center, of three to six weeks in 
 
              duration, and his last comment to me was that he would wait 
 
              to hear about the scheduling.  In other words, Larry wasn't 
 
              going to try to schedule himself, he didn't know if the 
 
              insurance company even wanted him to go to it, and he would 
 
              suspect that they would not get him in until after the 
 
              Christmas holidays.  All of this certainly creates 
 
              difficulties in pursuing vocational rehabilitation but 
 
              unless he begins to feel differently, I don't know that I 
 
              will be able to provide much in the way of services at this 
 
              time.  As a final note, since Mr. Pitzer was injured while 
 
              in the employ of a Dubuque firm, I believe this is actually 
 
              the primary labor market to address.  It would be important 
 
              however to address both Mr. Pitzer's current physical 
 
              capacities and depression before beginning any full scale 
 
              labor market activity.
 
         
 
         (Cl. Ex. 2, p. 10)
 
         
 
              Subsequent reports generated by Mr. Thompson in December of 
 
         1987 and May of 1988, as well as his testimony given at hearing, 
 
         do not reveal any alteration in his opinions of claimant's 
 
         situation.
 
         
 
              Claimant was referred to the Chronic Pain Management 
 
         Program, John R. Galbraith, Ph.D., Co-Director, in March 1988, by 
 
         Dr. Mark Schroeder.  Dr. Galbraith recorded his impression as 
 
         "Chronic pain syndrome in a patient with mild to moderate 
 
         personality factors (somatization and depression), possible 
 
                                                    
 
                                                             
 
         psychophysiologic hyperresponsiveness and minor financial 
 
         operants secondary to depression" (Cl. Ex. 1, p. 4), and opined 
 
         "We agree that he is a very appropriate candidate for our program 
 
         and the probability of successful rehabilitation is high.  It is 
 
         our opinion that this treatment is necessary either directly or 
 
         indirectly because of the injury he sustained on May 3, 1984 and 
 
         because of the subsequent treatments and inactivity."  (Cl. Ex. 
 
         1, p. 4)
 
         
 
              On request of defendants, claimant was seen by Bruce W. 
 
         Davey, M.D., orthopedic surgeon, for an independent medical 
 
         examination.  Dr. Davey, who saw claimant on August 9, 1988, 
 
         reported that he reviewed medical records and x-ray studies 
 
         provided to him prior to the examination.  Dr. Davey concluded:
 
         
 
                   Physical examination revealed an obese middle-aged male 
 
              who was not in any acute distress during the examination. 
 
              Examination of the cervical spine revealed a normal 
 
              curvature.  He appeared to have almost full range of motion 
 
              of the neck considering the large size of his neck.  There 
 
              were complaints of discomfort with full extension of the 
 
              neck.  The foraminal compression test was negative. 
 
              Examination of the cervical spine did not reveal any 
 
              specific tenderness or muscle spasm.  The left shoulder had 
 
              full range of motion with no crepitance.  There was no 
 
              muscle spasm in the trapezius area.  The arms and forearms 
 
              were measured circumferentially with the arms being equal 
 
              right and left. There was one-half inch of atrophy of the 
 
              left forearm as compared with the right.  Sensory testing 
 
              revealed hypesthesia primarily on the anterior and lateral 
 
              aspect of the left arm but no significant difference in the 
 
              forearms or hands.  There was no specific tenderness in the 
 
              ulnar groove on the medial aspect of the elbow.  Reflex 
 
                           
 
                                                             
 
              examination revealed 2+ biceps, triceps, and brachial 
 
              radialus reflexes. Motor examination was done but was 
 
              somewhat difficult to evaluate due to the giving way 
 
              phenomenon.  I think that he may have some mild weakness of 
 
              the biceps and perhaps the triceps on the left as compared 
 
              with the right arm.  I do not feel that the examination of 
 
              strength was reliable enough to weight [sic] heavily in my 
 
              decision.
 
         
 
                   I reviewed the CT scans, myelograms, and cervical spine 
 
              films available to me.  I concur that the patient appears to 
 
              have a soft tissue extradural density at the C4-5 level on 
 
              the left in July of 1984.  I believe this is most consistent 
 
              with a herniated disc.  I feel that the treatment offered at 
 
              that time was appropriate even though the patient did not 
 
              gain any significant relief.  His later studies revealed 
 
              persistence of the defect along with a rather large spur 
 
              encroaching upon the C4-5 foramen on the left.  Again, I 
 
              feel that the posterior approach with foraminotomy was 
 
              appropriate given the patients [sic] findings and 
 
              complaints.
 
         
 
                   I feel that it is most likely that Mr. Pitzner [sic] 
 
              sustained a ruptured cervical disc as a result of the 
 
              incident in May of 1984.  The bone spur which was diagnosed 
 
              on later films was a pre-existing condition as was the 
 
              degeneration of the disc space at the C4-5 level.  It is my 
 
              opinion that a permanent partial impairment of the cervical 
 
              spine due to the herniated disc and subsequent surgeries is 
 
              a reasonable estimate of Mr. Pitzner's [sic] impairment.  I 
 
              feel that Mr. Pitzner's [sic] continuing care should be 
 
              concerned with exercises to strengthen his neck musculature. 
 
              I feel that Mr. Pitzner [sic] might benefit from a pain 
 
              clinic but it is also my feeling that he would probably 
 
              benefit more from a rehabilitation program which would 
 
              prepare him for lighter work.
 
         
 
                   I certainly feel that he could return to gainful 
 
              employment although I do not feel that truck driving or any 
 
              activity that requires continual extension of the neck would 
 
              be tolerated very well.  Due to the strain on the neck 
 
              muscles with lifting, I feel that a fifty pound lifting 
 
              restriction will probably be required.
 
         
 
         (Cl. Ex. 1, pp. 2-3)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation,for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              There is no dispute among the parties that claimant 
 
         sustained an injury arising out of and in the course of his 
 
         employment or that the injury is the cause of both temporary and 
 
                                                    
 
                                                             
 
         permanent disability.  The central issue in this case is the 
 
         extent of claimant's entitlement to those benefits.
 
         
 
              This has been a most difficult case for, as much as the 
 
         undersigned might believe claimant is in pain, there is also a 
 
         belief that claimant has magnified, exaggerated, and multiplied 
 
         his symptoms for the purposes of monetary gain.  Consequently, 
 
         the process of sorting through the truth and the magnification 
 
         has caused significant doubt in the mind of the undersigned.
 
         
 
              An overall review of the evidence leads the undersigned to 
 
         the following observations:
 
         
 
              1.  Claimant appears,to cooperate with medical and 
 
         rehabilitative personnel until a return to work is mentioned. 
 
         Claimant then becomes upset and expresses an increase in his 
 
         symptomatology.
 
         
 
              2.  Claimant does not appear to have participated to his 
 
         fullest capabilities in recovering from his injury.  Claimant 
 
         seems not to understand or not willing to understand the 
 
         importance of his own cooperation.
 
         
 
              3.  Claimant's demeanor at hearing, as well as his attitude 
 
         throughout this case, does not instill confidence in his 
 
         credibility.  Claimant directly refused to look at defendants' 
 
         counsel or any of defendants' witnesses while they were 
 
         testifying.  Claimant groaned, sobbed, and expressed through his 
 
         actions contempt toward defendants and defendants' witnesses.  
 
         The undersigned could not see that any of those emotions were 
 
         expressed by defendants toward claimant either through direct 
 
         testimony or through their reports admitted as exhibits.  The 
 
         undersigned would agree that claimant has a fixation on "getting 
 
         fixed" rather than getting over the hurdle of being injured, 
 
         albeit a serious injury.  Claimant appears to have been feeling 
 
         persecuted by his expressions of being "kicked out the door." 
 
         Defendants are clearly liable for the ramifications of the injury 
 
         but that is the extent of their liability.  Claimant appears to 
 
         be imposing all of his frustrations with facets of his life on 
 
         this injury.  For example, claimant professes to have been close 
 
         to his brother but maintains that he is suffering from no sense 
 
         of loss or depression as a result of his brother's death.  
 
         Claimant testified that you grieve and then you get over it.  
 
         Claimant's attitudes appear to be extremely inconsistent.
 
         
 
              4.  Claimant, when presented with a new medical or 
 
         vocational worker, presents to that person a cooperative attitude 
 
         upon commencing contact but fails to follow through with his 
 
         cooperation until each person comes to an "impasse" in trying to 
 
         deal with claimant.
 
         
 
              5.  It is the belief of the undersigned that claimant does 
 
         not truly wish to return to work.  Claimant was released to 
 
         return to work by more than one physician on more than one 
 
         occasion but essentially refuses to heed any advice with which he 
 
                                                    
 
                                                             
 
         might disagree.  Even on the one occasion where claimant 
 
         attempted to return to work, claimant delayed in contacting the 
 
         employer. Claimant, even though presented with numerous 
 
         opportunities to do so, would not assist vocational 
 
         rehabilitation professionals with a rehabilitation plan.  
 
         Claimant found no sense in seeking work for less wages than he 
 
         was earning and now that he is receiving social security benefits 
 
         maintains he is "not supposed to" look for work.  The undersigned 
 
         cannot agree with such a position.
 
         
 
              6.  Physicians agree that some of claimant's physiological 
 
         complaints do not fit, that not all of claimant's complaints are 
 
         causally connected to the injury, and that claimant 
 
         overdemonstrates his asserted condition.  It must be remembered 
 
         that doctors have opined claimant's neck is structurally sound 
 
         and that claimant is not at risk for further neurological damage. 
 
         Claimant's complaints are essentially subjective.  Because it is 
 
         believed that claimant has overexaggerated and multiplied his 
 
         symptoms and that the physicians' opinions are based on these 
 
         subjective complaints of claimant, the physicians' opinions are 
 
         somewhat suspect as to their validity.
 
         
 
              Claimant first asserts that he is an odd-lot employee as 
 
         contemplated by Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
         1985).
 
         
 
              Under the odd-lot doctrine, which was formally adopted by the 
 
         Iowa Supreme Court in Guyton, supra, a worker becomes an odd-lot 
 
         employee when an injury makes the worker incapable of obtaining 
 
         employment in any well-known branch of the labor market.  An 
 
         odd-lot worker is thus totally disabled if the only services the 
 
         worker can perform are so limited in quality, dependability, or 
 
         quantity that a reasonably stable market for them does not exist. 
 
         Id., citing Lee V. Minneapolis Street Railway Company, 230 Minn. 
 
         315, 320, 41 N.W.2d 433, 436 (1950).  The rule of odd-lot 
 
         allocates the burden of production of evidence.  If the evidence 
 
         of degree of obvious physical impairment, coupled with other facts 
 
         such as claimant's mental capacity, education, training or age, 
 
         places claimant prima facie in the odd-lot category, the burden 
 
         should be on the employer to show that some kind of suitable work 
 
         is regularly and continuously available to the claimant.  
 
         Certainly in such a case it should not be enough to show that 
 
         claimant is physically capable of performing light work and then 
 
         round out the case for non-compensable by adding a presumption 
 
         that light work is available.  Guyton, 373 N.W.2d at 105.
 
         
 
              When a worker makes a prima facie case of total disability 
 
         by producing substantial evidence that the worker is not 
 
         employable in the competitive labor market, the burden to produce 
 
         evidence of suitable employment shifts to the employer.  If the 
 
         employer fails to produce such evidence and the trier of fact 
 
         finds the worker falls in the odd-lot category, the worker is 
 
         entitled to a finding of total disability.  Even under the 
 
         odd-lot doctrine, the trier of fact is free to determine the 
 
         weight and credibility of the evidence in determining whether the 
 
                                                    
 
                                                             
 
         worker's burden of persuasion has been carried.  Only in an 
 
         exceptional case would evidence be sufficiently strong to compel 
 
         a finding of total disability as a matter of law.  Guyton, 373 
 
         N.W.2d at 106.  The court went on to state:
 
         
 
                   The commissioner did not in his analysis address any of 
 
              the other factors to be considered in determining industrial 
 
              disability.  Industrial disability means reduced earning 
 
              capacity.  Bodily impairment is merely one factor in a 
 
              gauging industrial disability.  Other factors include the 
 
              worker's age, intelligence, education, qualifications, 
 
              experience, and the effect of the injury on the worker's 
 
              ability to obtain suitable work.  See Doerfer Division of 
 
              CCA v. Nicol, 359 N.W.2d 428, 438 (Iowa 1984).  When the 
 
              combination of factors precludes the worker from obtaining 
 
              regular employment to earn a living, the worker with only a 
 
              partial functional disability has a total disability.  See 
 
              McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 
 
              1980).
 
         
 
              The greater weight of evidence would establish that claimant 
 
         has failed to demonstrate that the services he can perform are so 
 
         limited in quality, dependability or quantity that a reasonably 
 
         stable labor market for them does not exist.  This is particularly 
 
         true where claimant has failed to seek any employment since his 
 
         injury.  Although claimant asserts he is incapable of working, he 
 
         has not tried to do so since one attempt early after the injury. 
 
         Claimant has been, on more than one occasion, released to return 
 
         to work and failed to do so.  As will be discussed below, claimant 
 
         may be prohibited from driving a truck but that does not directly 
 
         lead to the conclusion that claimant is not employable.  
 
         Therefore, claimant has failed to establish he is an odd-lot 
 
         employee pursuant to Guyton, 373 N.W.2d 101.
 
 
 
                           
 
                                                             
 
         
 
              Claimant has, however, suffered a permanent impairment as a 
 
         result of his injury and his capacity to earn has clearly been 
 
         hamper.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
                                                    
 
                                                             
 
         
 
              Claimant, age 46, has essentially earned his living as a 
 
         laborer and truck driver.  Even taking the most liberal 
 
         restrictions imposed by physicians who have seen claimant 
 
         (keeping in mind that those opinions are viewed by the 
 
         undersigned as questionable in light of their basis laying in 
 
         what claimant has told them), claimant, as a result of the 
 
         injury, is not capable of returning to truck driving or to any 
 
         work which would require continual extension of the neck.  
 
         Claimant has restrictions on his employability which precludes 
 
         him from engaging in much of the work for which he is fitted.  
 
         Claimant makes much of the fact that Boscobel, his home town, is 
 
         a difficult labor market.  However, the industrial commissioner 
 
         has held that a disability which may result from the state of the 
 
         economy is not compensable under the Iowa Worker's Compensation 
 
         laws.  See Webb v. Lovejoy Construction Company, II Iowa 
 
         Industrial Report 430 (Appeal Decision 1981).
 
         
 
              Claimant did not graduate from high school.  It is unclear 
 
         in the record whether or not claimant has obtained his GED.  
 
         However, claimant does not appear to the undersigned to suffer 
 
         from any lack of intellectual ability which leads to the 
 
         conclusion that claimant could be retrained for other employment 
 
         if he would elect to do so or if he would have the requisite 
 
         motivation.
 
         
 
              Claimant repeatedly stated during the hearing that he did 
 
         not want work and did not want retraining.  Claimant testified he 
 
         wanted treatment.  The undersigned would conclude claimant has 
 
         had treatment, and that defendants have gone beyond the 
 
         requirements of the law to treat claimant both medically and 
 
         vocationally.
 
         
 
              Iowa Code section 85.34(2)(u) provides:
 
         
 
                   In all cases of permanent partial disability other than 
 
              those hereinabove described or referred to in paragraphs 
 
              "all through "t" hereof, the compensation shall be paid 
 
              during the number of weeks in relation to five hundred weeks 
 
              as the disability bears to the body of the injured employee 
 
              as a whole.
 
         
 
              Considering then all of the elements of industrial 
 
         disability, it is determined that claimant has sustained a 
 
         permanent partial disability of 20 percent for industrial 
 
         purposes entitling him to 100 weeks of permanent partial 
 
         disability benefits.
 
         
 
              Iowa Code section 85.27 provides:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical, rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
                                                    
 
                                                             
 
                   necessary transportation expenses incurred for such 
 
              services.
 
         
 
              Iowa Code section 85.34(1) provides that if an employee has 
 
         suffered a personal injury causing permanent partial disability, 
 
         the employer shall pay compensation for a healing period from the 
 
         day of the injury until (1) the employee returns to work; or (2) 
 
         it is medically indicated that significant improvement from the 
 
         injury is not anticipated; or (3) until the employee is medically 
 
         capable of returning to substantially similar employment.
 
         
 
              Medical records establish that on June 10, 1986, when 
 
         claimant was referred to Dr. Hoffert, it was reported that "it is 
 
         unlikely there is much more to offer claimant" for treatment of 
 
         his problem.  In November 1986, after pain clinic treatment, Dr. 
 
         Hoffert indicated that claimant's treatment had reached a 
 
         "plateau."  Claimant has not demonstrated any further recovery 
 
         since that time and the record does not establish that any 
 
         further treatment for the care of his injury is necessary at this 
 
         time. Consequently, it is determined that the care provided by 
 
         Dr. Galbraith was unauthorized and defendants will not be ordered 
 
         to be liable therefor.  Claimant acknowledged that he was 
 
         informed that the care provided by Dr. Galbraith would not be 
 
         authorized. Claimant had the option, at that point, to seek 
 
         relief by the Iowa Industrial Commissioner.  Such relief was not 
 
         sought.  Claimant elected to proceed to his detriment.  The 
 
         recommendations made by Dr. Galbraith involved the same 
 
         modalities which were engaged to assist claimant by Dr. Hoffert. 
 
          It appears to the undersigned that claimant had the same 
 
         attitude toward this treatment as he had toward previous 
 
         treatment.  Claimant has had the opportunity for pain clinic 
 
         treatment previously.  It is not shown that claimant demonstrated 
 
         any improvement in his condition as a result of that treatment.  
 
         It appears to the undersigned as it appeared to vocational 
 
         rehabilitation experts and the physicians involved in the case 
 
         that claimant would benefit more from vocational rehabilitation 
 
         rather than pain clinic management.  Claimant has rejected the 
 
         vocational treatment.  Further pain clinic treatment will not be 
 
         ordered.  In light of the above, it is concluded that claimant's 
 
         healing period, pursuant to Iowa Code section 85.34(1) ended 
 
         November 18, 1986 and permanent partial disability benefits shall 
 
         commence November 19, 1986.
 
         
 
              Iowa Code section 86.13 provides:
 
         
 
                   If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
         
 
              The final issue for resolution is claimant's request for 
 
         penalty benefits.  Claimant would submit that defendants should 
 
         not escape liability for penalty benefits by only paying to the 
 
                                                    
 
                                                             
 
         extent of permanent partial impairment and argues that defendants 
 
         failed to consider the elements of industrial disability in its 
 
         payment of permanent partial disability benefits.
 
         
 
              While it is true that claimant has been found to have 
 
         sustained an industrial disability which exceeds the 10 percent 
 
         paid by defendants, industrial disability can be less than, 
 
         greater than or equal to functional impairment.  Birmingham v. 
 
         Firestone Tire & Rubber Company, II Iowa Industrial Commissioner 
 
         Report 39 (Appeal Decision 1981).  Iowa Code section 86.13 refers 
 
         to a delay in the commencement of or termination of benefits 
 
         without reasonable or probable cause or excuse.  It does not allow 
 
         penalty benefits when one party is dissatisfied with the amount of 
 
         money that was voluntarily paid.  This is particularly true when, 
 
         under the.Iowa Workers' Compensation laws, defendants are not 
 
         entitled to recoup any amount of overpayment from the claimant.  
 
         It cannot be concluded, based on the evidence presented that 
 
         defendants delayed the commencement or terminated claimant's 
 
         benefits without reasonable or probable cause or excuse.  The 
 
         undersigned is not vested with equitable powers.  Accordingly, no 
 
         penalty benefits will be awarded in this case.
 
         
 
                              FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following ultimate findings of fact are made:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on May 3, 1984, when he slipped 
 
         while exiting a tractor-trailer he was driving for defendant 
 
         employer.
 
         
 
              2.  Claimant has been under the care of numerous physicians, 
 
 
 
                              
 
                                                             
 
         underwent a discectomy of C4-5 in January of 1985, and in October 
 
         of 1985 was found to have a bone spur on the left side at C4-5 
 
         for which he underwent a foraminotomy.
 
         
 
              3.  Claimant has sustained a permanent partial impairment as 
 
         a result of the injury.
 
         
 
              4.  As a result of the injury, claimant's capacity to earn 
 
         has been hampered.
 
         
 
              5.  Claimant's credibility is questionable.
 
         
 
              6.  Although released to return to work by numerous 
 
         physicians on more than one occasion, claimant has not returned 
 
         to work and his one attempt to return to work with defendant 
 
         employer was unsuccessful.
 
         
 
              7.  Claimant has not sought employment since that time.
 
         
 
              8.  Claimant has not participated to his fullest 
 
         capabilities in recovering from this injury and has not 
 
         cooperated with medical and vocational personnel to overcome its 
 
         effects.
 
         
 
              9.  As a result of the injury, claimant is not capable of 
 
         returning to truck driving or to work which would require 
 
         continual extension of the neck.
 
         
 
              10.  Claimant has expressed his desire not to return to work 
 
         and not to retrain, but to have treatment.
 
         
 
              11.  Defendants have gone beyond the requirements of the law 
 
         to provide treatment to claimant both medically and 
 
         vocationally.
 
         
 
              12.  Claimant's condition reached a "plateau on November 18, 
 
         1986.
 
         
 
              13.  Permanent partial disability benefits commence November 
 
         19, 1986.
 
         
 
              14.  Penalty benefits are not appropriate in this case.
 
         
 
              15.  Claimant is not an odd-lot employee as claimant has not 
 
         demonstrated that the services he can perform are so limited in 
 
         quality, dependability and quantity that a reasonably stable 
 
         labor market for them does not exist.
 
         
 
              16.  Claimant has sustained a permanent partial disability 
 
         of 20 percent for industrial purposes entitling him to 100 weeks 
 
         of permanent partial disability benefits.
 
         
 
              17.  Claimant has not shown that any further treatment for 
 
         the care of his injury is necessary at this time.
 
         
 
                                                    
 
                                                             
 
                             CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant, as a result of the injury of May 3, 1984, has 
 
         sustained a permanent partial disability of 20 percent for 
 
         industrial purposes.
 
         
 
              2.  Claimant has failed to establish a prima facie case he 
 
         is an odd-lot employee.
 
         
 
              3.  Claimant has failed to establish an entitlement to any 
 
         further medical benefits pursuant to Iowa Code section 85.27 at 
 
         this time.
 
         
 
              4.  The treatment provided by Dr. Galbraith is 
 
         unauthorized.
 
         
 
              5.  Claimant.has failed to establish entitlement to penalty 
 
         benefits under Iowa Code section 86.13.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay unto claimant one hundred (100) weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         of two hundred eighty-eight and 15/100 dollars ($288.15) per week 
 
         commencing November 19, 1986.
 
         
 
              Defendants shall pay until claimant one hundred thirty-two 
 
         point eight five seven (132.857) weeks of healing period benefits 
 
         at the stipulated rate of two hundred eighty-eight and 15/100 
 
         dollars ($288.15) for the period from May 3, 1984 up to and 
 
         including November 18, 1986.
 
         
 
              Defendants shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              Payments which have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              A claim activity report shall be filed upon payment of this 
 
         award.
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 23rd day of October, 1989.
 
                                         
 
                                                    
 
                                                             
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr Dennis L Hanssen
 
         Attorney at Law
 
         Terrace Center, Ste 111
 
         2700 Grand Ave
 
         Des Moines IA  50312
 
         
 
         Ms. Dorothy L Kelley
 
         Attorney at Law
 
         500 Liberty Bldg
 
         Des Moines IA  50309
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                    
 
 
            
 
             
 
 
 
 
 
                                            5-1803
 
                                            Filed October 23, 1989
 
                                            DEBORAH A. DUBIK
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LARRY PITZER,
 
         
 
              Claimant,
 
                                                   File No. 766890
 
         vs.
 
         
 
         ROWLEY INTERSTATE,                     A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         HOME INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant awarded 20 percent industrial disability for a 
 
         shoulder/cervical injury.  Significant problems with claimant's 
 
         credibility, motivation and veracity were evident throughout the 
 
         record.