1108.5-1402.40-1803
 
                                            Filed July 22, 1987
 
                                            DAVID E. LINQUIST
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
        
 
         CLIFFORD E. THORNTON,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 771755
 
         FIRESTONE TIRE COMPANY,
 
                                                  A P P E A L
 
              Employer,
 
                                                D E C I S I 0 N
 
         and
 
         
 
         INSURANCE COMPANY OF
 
         NORTH AMERICA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         _________________________________________________________________
 
         
 
         1108.5 - 1402.40 - 1803
 
         
 
              Claimant failed to establish a causal connection between his 
 
         injury and subsequent disability.  Congenital spondylolysis found 
 
         to be the cause of claimant's current disability.  Affirmed.
 
 
 
         
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        STEVEN L. BOATMAN,
 
        
 
           Claimant,                    File no. 772267
 
        
 
        vs.                              A P P E A L
 
        
 
        GRIFFIN WHEEL COMPANY,         D E C I S I O N
 
        
 
           Employer,
 
           Self-Insured,
 
           Defendant.
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals from a review-reopening proceeding granting 
 
        healing period benefits.
 
        
 
        The record on appeal consists of the transcript of the 
 
        review-reopening proceeding; claimant's exhibits 1 through 15; 
 
        and defendant's exhibits B and C. Both parties filed briefs on 
 
        appeal.
 
        
 
                                      ISSUES
 
        
 
        Claimant states the following issues on appeal:
 
        
 
        1. Claimant is entitled to Temporary Total Disability Payments.
 
        
 
        2. Claimant entitled to additional Industrial Disability beyond 
 
        the 25% originally given from the arbitration hearing of August 
 
        19, 1986, as a result of the Review-Reopening hearing and the 
 
        proof and facts presented there.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The review-reopening decision adequately and accurately reflects 
 
        the pertinent evidence and it will not be set forth herein.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the review-reopening decision are 
 
        appropriate to the issues and the evidence.
 
        
 
                                      ANALYSIS
 
        
 
        The analysis of the law in conjunction with the law is
 
        
 
        BOATMAN V. GRIFFIN WHEEL COMPANY
 
        Page 2
 
        
 
        
 
        adopted. Claimant, however, should be awarded temporary total 
 
        disability benefits instead of the healing period benefits which 
 
        the deputy ordered, because of the fact that claimant had fully 
 
        recuperated from his lower back injury of August 13, 1984 when he 
 
        sustained an apparent temporary aggravation or recurrence of this 
 
        back condition from August 20, 1986 to September 21, 1986. 
 
        Further, it is agreed that claimant was taking 18 hours per 
 
        semester as a full-time student instead of 18 hours a day as the 
 

 
        
 
 
 
 
 
        deputy indicated in his decision. However, this fact does not 
 
        change the decision; claimant is entitled to temporary total 
 
        disability benefits from August 20, 1986 to September 21, 1986.
 
        
 
        Claimant has failed to meet his burden to show that he is 
 
        entitled to additional industrial disability.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. The claimant was suffering from the residuals of a herniated 
 
        disc and its corrective surgery at the time of the hearing on 
 
        August 19, 1986 and was suffering from the same condition at the 
 
        time of the hearing an August 3, 1987.
 
        
 
        2. The claimant did have an apparent temporary aggravation or 
 
        recurrence of this back condition from August 20, 1986 to 
 
        September 21, 1986 which rendered him unable to work during that 
 
        period of time.
 
        
 
        3. The claimant did not prove facts that show a change in 
 
        impairment, diagnosis, prognosis, limitations or restrictions 
 
        that occurred after the hearing on August 19, 1986.
 
        
 
        4. The claimant did not prove facts that show a change in 
 
        nonmedical or economic condition after the hearing on August 19, 
 
        1986.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant did sustain the burden of proof by a preponderance of 
 
        the evidence that the recurrence of his back condition caused a 
 
        temporary inability to work from August 20, 1986 through 
 
        September 21, 1986.
 
        
 
        Claimant is entitled to temporary total benefits from August 20, 
 
        1986 through September 21, 1986.
 
        
 
        Claimant did not sustain the burden of proof by a preponderance 
 
        of the evidence that he sustained a change of condition which 
 
        caused any additional disability after the hearing of August 19, 
 
        1986.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
        BOATMAN V. GRIFFIN WHEEL COMPANY
 
        Page 3
 
        
 
        
 
                                      ORDER
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendant pay unto claimant four point seven one four 
 
        (4.714) weeks of temporary total disability benefits for the 
 
        period from August 20, 1986 through September 21, 1986 at the 
 
        rate of two hundred seventy-six and 38/100 dollars ($276.38) per 
 
        week for a total sum of one thousand three hundred two and 86/100 
 
        dollars ($1,302.86).
 
        
 
        That defendant pay accrued weekly benefits in a lump sum.
 
        
 
        That defendant pay interest on weekly benefits pursuant to Iowa 
 
        Code section 85.30.
 
        
 
        That defendant be given credit for benefits previously paid.
 
        
 

 
        
 
 
 
 
 
        That defendant pay the costs of this proceeding pursuant to 
 
        Division of Industrial Services Rule 343-3.3. Claimant shall pay 
 
        the costs of the transcription of the hearing proceeding.
 
        
 
        That defendant file claim activity reports as required by this 
 
        agency pursuant to Division of Industrial Services Rule 343-3.1.
 
        
 
        Signed and filed this 9th day of November, 1988.
 
        
 
        
 
                                         DAVID E. LINQUIST
 
        
 
                                       INDUSTRIAL COMMISSIONER
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         STEVEN L. BOATMAN,
 
         
 
              Claimant,                       File No.  772267
 
         
 
         vs.
 
         
 
                                                A P P E A L
 
         GRIFFIN WHEEL COMPANY,
 
                                              D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from a review-reopening proceeding granting 
 
         healing period benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         review-reopening proceeding; claimant's exhibits 1 through 15; 
 
         and defendant's exhibits B and C.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  Claimant is entitled to Temporary Total Disability 
 
              Payments.
 
         
 
              2.  Claimant 4-s entitled to additional Industrial 
 
              Disability beyond the 25% originally given from the 
 
              arbitration hearing of August 19, 1986, as a result of 
 
              the Review-Reopening hearing and the proof and facts 
 
              presented there.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The review-reopening decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be set forth 
 
         herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the review-reopening decision are 
 
         appropriate to the issues and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the law in conjunction with the law is 
 
         adopted.  Claimant, however, should be awarded temporary total 
 
         disability benefits instead of the healing period benefits which 
 
                                                
 
                                                         
 
         the deputy ordered, because of the fact that claimant had fully 
 
         recuperated from his lower back injury of August 13, 1984 when he 
 
         sustained an apparent temporary aggravation or recurrence of this 
 
         back condition from August 20, 1986 to September 21, 1986.  
 
         Further, it is agreed that claimant was taking 18 hours per 
 
         semester as a full-time student instead of 18 hours a day as the 
 
         deputy indicated in his decision.  However, this fact does not 
 
         change the decision; claimant is entitled to temporary total 
 
         disability benefits from August 20, 1986 to September 21, 1986.
 
         
 
              Claimant has failed to meet his burden to show that he is 
 
         entitled to additional industrial disability.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The claimant was suffering from the residuals of a 
 
         herniated disc and its corrective surgery at the time of the 
 
         hearing on August 19, 1986 and was suffering from the same 
 
         condition at the time of the hearing on August 3, 1987.
 
         
 
              2.  The claimant did have an apparent temporary aggravation 
 
         or recurrence of this back condition from August 20, 1986 to 
 
         September 21, 1986 which rendered him unable to work during that 
 
         period of time.
 
         
 
              3.  The claimant did not prove facts that show a change in 
 
         impairment, diagnosis, prognosis, limitations or restrictions 
 
         that occurred after the hearing on August 19, 1986.
 
         
 
              4.  The claimant did not prove facts that show a change in 
 
         nonmedical or economic condition after the hearing on August 19, 
 
         1986.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that the recurrence of his back condition caused 
 
         a temporary inability to work from August 20, 1986 through 
 
         September 21, 1986.
 
         
 
              Claimant is entitled to temporary total benefits from August 
 
         20, 1986 through September 21, 1986.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained a change of 
 
         condition which caused any additional disability after the 
 
         hearing of August 19, 1986.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
                                                
 
                                                         
 
              That defendant pay unto claimant four point seven one four 
 
         (4.714) weeks of temporary total disability benefits for the 
 
         period from August 20, 1986 through September 21, 1986 at the 
 
         rate of two hundred seventy-six and 38/100 dollars ($276.38) per 
 
         week for a total sum of one thousand three hundred two and 86/100 
 
         dollars ($1,302.86).
 
         
 
              That defendant pay accrued weekly benefits in a lump sum.
 
         
 
              That defendant pay interest on weekly benefits pursuant to 
 
         Iowa Code section 85.30.
 
         
 
              That defendant be given credit for benefits previously 
 
         paid.
 
         
 
              That defendant pay the costs of this proceeding pursuant to 
 
         Division of Industrial Services Rule 343-3.3.  Claimant shall pay 
 
         the costs of the transcription of the hearing proceeding.
 
         
 
              That defendant file claim activity reports as required by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 9th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                             DAVID E. LINQUIST
 
                                             INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, IA 52632
 
         
 
         Mr. John E. Kultala
 
         Attorney at Law
 
         511 Blondeau St
 
         Keokuk, IA 52632
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                   1801; 1802
 
                                                   Filed November 9, 1988
 
                                                   David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN L. BOATMAN,
 
         
 
              Claimant,                           File No. 772267
 
         
 
         vs.
 
                                                   A P P E A L
 
         
 
         GRIFFIN WHEEL COMPANY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1801; 1802
 
         
 
              Affirmance of the deputy decision granting 25% industrial 
 
         disability; but a modification of the decision to grant temporary 
 
         total benefits instead of healing period benefits for a 
 
         recurrence of claimant's back condition which caused a temporary 
 
         inability to work.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN L. BOATMAN,
 
                                                    File No. 772267
 
              Claimant,
 
                                                  A R B I T R A T I 0 N
 
         VS.
 
                                                     D E C I S I 0 N
 
         GRIFFIN WHEEL COMPANY,
 
         
 
              Employer,
 
              Self Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Steven L. 
 
         Boatman, claimant, against Griffin Wheel Company, a self-insured 
 
         employer, for the recovery of benefits as the result of an 
 
         alleged injury on August 13, 1984.  This matter was heard before 
 
         the undersigned on August 19, 1986 at the courthouse in 
 
         Burlington, Des Moines County, Iowa.  It was considered fully 
 
         submitted at the conclusion of the hearing.
 
         
 
              The record in this matter consists of the testimony of 
 
         claimant, William T. Fergeson, April L. Kerr, Scott Kerr, 
 
         Genevieve Boatman, Lula White, Laura Boatman, Marian L. Jacobs, 
 
         Douglas Nelson, Paul Larson, and Rose Harmon; claimant's exhibits 
 
         1 through 6 and 8 through 16; and, defendant's exhibits A through 
 
         K.
 
         
 
                             STIPULATIONS AND ISSUES
 
         
 
              Pursuant to the prehearing report and order approving the 
 
         same filed by the parties at the time of the hearing, the parties 
 
         stipulated as follows:
 
         
 
              1.  There is an employer-employee relationship between the 
 
         claimant and the employer at the time of the alleged injury.
 
         
 
              2.  Claimant sustained an injury arising out of and in the 
 
         course of his employment on August 13, 1984.
 
         
 
              3.  The injury suffered by claimant resulted in temporary 
 
         total and permanent partial disability.
 
         
 
              4.  The injury suffered by claimant was to the body as a 
 
         whole and thus he is entitled to an industrial disability 
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page   2
 
         
 
         
 
         determination.
 
              5.  Claimant's rate of compensation is $276.38, he is 
 
         married and entitled to six exemptions.
 
         
 
              6.  All medical benefits requested by the claimant 
 
         pursuant to section 85.27 have been or will be paid by the 
 
         defendant.
 
         
 
              7.  The costs incurred by the parties have actually been 
 
         paid by them which included $250 for the deposition of William 
 
         R. Pontarelli, M.D., and $76.25 in court reporter fees.
 
         
 
              The issues to be determined in this proceeding are the 
 
         determination of claimant's healing period and the extent of 
 
         permanent partial disability suffered by the claimant.
 
         
 
                             EVIDENCE PRESENTED
 
         
 
              Claimant testified he is thirty-seven years old and 
 
         completed the tenth grade in school.  He has since obtained a GED 
 
         diploma and is presently enrolled at Southeastern Community 
 
         College.  Claimant stated that he has about five months to 
 
         complete an associate of arts degree.  Claimant said he enrolled 
 
         at the college following his injury.
 
         
 
              Claimant stated that prior to August 13, 1984 he was in good 
 
         health.  On that day claimant awoke to go into work early and had 
 
         worked about six or seven hours when he was loading a fifty pound 
 
         bag of graphite into the furnace.  At that time he felt a sharp 
 
         pain and burning sensation in his legs.  He reported the injury 
 
         to his forearm and was later transferred to the hospital by 
 
         ambulance.  Claimant said he arrived at the emergency room at the 
 
         hospital but was not given medical treatment for about an hour 
 
         and a half.  Claimant attributed this delay to a company policy 
 
         not to treat injured workers until they had been given a urine 
 
         test.
 
         
 
              Claimant said he was examined by an orthopedic surgeon and 
 
         then referred to Webster B. Gelman, M.D., and William R. 
 
         Pontarelli, M.D., orthopedic specialists in Iowa City.  Claimant 
 
         said that Dr. Pontarelli performed a discectomy and then referred 
 
         him to the care of Donald Mackenzie, M.D., who monitored claimant 
 
         and prescribed physical therapy.
 
         
 
              Claimant said that he was released to return to work by Dr. 
 
         Pontarelli on a light duty status but did not return to work 
 
         because there was no work available for him at defendant within 
 
         the restrictions established by the doctor.  Claimant said he 
 
         remained off work until August of 1985 when the defendant 
 
         indicated that they did have light duty work available for him.  
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page   3
 
         
 
         
 
         Claimant said he worked in this position about three weeks until 
 
         he was blown off his feet by a wind which caused a reaggravation 
 
         of his low back condition.  Claimant was then seen by a Dr. Kemp 
 
         who referred claimant back to the specialist in Iowa City.  After 
 
         claimant saw Dr. Pontarelli, he was told that he should not go 
 
         back to work until permanent restrictions were mailed to him.  He 
 
         said that when these restrictions were received in the mail he 
 
         went to the personnel director at defendant, Rose Harmon, who 
 
         said that there was work available and that she would contact 
 
         claimant.  Claimant said it was his understanding that Ms. Harmon 
 
         would contact him concerning a permanent light duty job but she 
 
         never got back to him concerning a permanent position.
 
         
 
              Claimant stated that he submitted to a second examination by 
 
         Dr. Mackenzie who began treating him again.  He said Dr. 
 
         Mackenzie prescribed some shots for him which resulted in severe 
 
         headaches.  He said that the shots helped his back for a couple 
 
         of days but the pain soon returned.
 
         
 
              Claimant outlined a number of activities that he no longer 
 
         does as a result of his injury.  He stated that he no longer goes 
 
         scuba diving, does little around the house, and has not been able 
 
         to climb a ladder, or complete some projects around the home that 
 
         he had started.  Claimant said he wakes up with a backache and 
 
         stiff and sore legs which takes about ten or fifteen minutes to 
 
         straighten up.  He said it takes about an hour before his back is 
 
         limbered up.  Claimant said that he has gained thirty-five pounds 
 
         since his injury.  Claimant stated that he has attempted to find 
 
         employment in the Keokuk area but has been unable to do so.  
 
         Claimant advised that he was unable to return to the types of 
 
         jobs he had prior to his injury.  He added that he did not feel 
 
         qualified for employment except as a general laborer.  On 
 
         cross-examination claimant outlined his work history which 
 
         included work as a guard at the Iowa State Penitentiary in 1981; 
 
         work for the cable television company in Keokuk, Iowa, from 1977 
 
         to 1981; six weeks as a stock clerk; about a year as a truck 
 
         driver; and about a year as a grinder.  Claimant also advised 
 
         that he had one semester of college at Southeastern Community 
 
         College in the 1972-1973 school year.
 
         
 
              Claimant stated that he last received physical therapy in 
 
         March of 1985.  He also said that he has not used an exercise 
 
         bike since August of 1985.  Claimant conceded that the defendant 
 
         had purchased for him a membership in the local YMCA so he could 
 
         get physical therapy, but claimant has attended only about three 
 
         times.  He has not been to the YMCA since March of 1985.  
 
         Claimant stated that he gets most of his exercise at the public 
 
         swimming pool in Hamilton, Illinois.
 
         
 
              Claimant also testified on cross-examination that he had not 
 
         refused treatment from Dr. Mackenzie but had refused steroidal 
 
         injections.  He also denied that he had been advised by his 
 
         lawyer that Dr. Mackenzie was to be his authorized treating 
 
         physician.
 
         
 
         
 
              Claimant said that in September 1985 he met with Rose Harmon 
 
         concerning the availability of work.  He said he was advised at 
 
         that time that his job was still available.  He asked Ms. Harmon 
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page   4
 
         
 
         
 
         about permanent employment and she stated to him that she would 
 
         get back in touch with him.  Claimant acknowledged receipt of a 
 
         letter dated October 14, 1985 from the defendant's plant manager 
 
         concerning his return to work.  Claimant said that upon receipt 
 
         of the letter he contacted a union representative and went to see 
 
         the plant manager.  Claimant said he told the plant manager that 
 
         he would be attending school unless he was assured of a permanent 
 
         job at defendant.  He said he was later told by Rose Harmon that 
 
         the job would be permanent as long as claimant needed it.  
 
         Claimant, however, stated that since he had enrolled in school 
 
         already he decided to continue with his studies.  Claimant 
 
         insisted that he would return to work immediately if there was a 
 
         permanent job available for him.
 
         
 
              Claimant revealed that his course of study at Southeastern 
 
         Community College is in the area of general studies.  He said he 
 
         did have an interest in computers and electronics but he is no 
 
         longer interested in this kind of work.  Claimant said he would 
 
         prefer to explore some type of counseling career.
 
         
 
              On redirect examination claimant said he understood from the 
 
         defendant's plant manager that the job offered to him would only 
 
         have been available for a couple of weeks.
 
         
 
              Laura Boatman testified that she is the wife of the claimant 
 
         and has been married to him for fourteen years.  She stated that 
 
         prior to August 13, 1984 that claimant was in good health and 
 
         experienced no medical or physical problems of any kind.  She 
 
         said claimant used to be much more active with the children, 
 
         working on the house, as well as engaging in leisure sports 
 
         activities.  She said he now no longer helps do the housework, 
 
         move furniture, or make repairs on the home.  She said that since 
 
         claimant's injury the house has been painted which she did 
 
         herself.
 
         
 
              Mrs. Boatman stated that the claimant no longer sleeps 
 
         soundly and is up as many as three or four times a night.  She 
 
         said he also seems to experience difficulty sitting and driving.  
 
         She said that since the injury claimant's general health has 
 
         deteriorated and seems to affect every aspect of his life.  Mrs. 
 
         Boatman stated that claimant has developed a weight problem since 
 
         his injury and has gained as much as thirty-five pounds.  She 
 
         said he has been put on a weight loss program and although he has 
 
         not lost weight, he has not gained it either.
 
         
 
              Lula White testified that she is employed as a social worker 
 
         I for the state of Illinois.  She stated that she has been 
 
         claimant's neighbor for the past three or four years.  Ms. White 
 
         said she had the opportunity to observe the claimant prior to
 
         
 
         his August 1984 injury and believed that claimant was in 
 
         excellent health and had a good physique.  She has also observed 
 
         him since the injury and has noticed that claimant has difficulty 
 
         picking things up, bending, walking, and appears to change his 
 
         position while sitting.  She said she has talked with the 
 
         claimant about his educational pursuits and he seems to be 
 
         satisfied with those endeavors.  She said claimant has indicated 
 
         to her some interest in social work.
 
         
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page   5
 
         
 
         
 
              Genevieve Boatman testified that she is the mother of 
 
         claimant and stated that prior to his injury claimant had normal 
 
         health.  She said she sees the claimant fairly often' and since 
 
         his injury has noticed that he seems to be restricted in a number 
 
         of activities which he did not limit prior to the injury.  She 
 
         outlined in detail a number of activities which claimant now 
 
         seems to restrict.  She said claimant seems to like going to 
 
         college.
 
         
 
              William T. Fergeson, age seventeen, testified that he is 
 
         claimant's stepson.  He said that he has lived with the claimant 
 
         for about fifteen or sixteen years and observed him prior to his 
 
         injury.  He described claimant as a very active person who was 
 
         involved in sports of swimming and other activities of a normal, 
 
         healthy individual.  He stated that since the injury claimant 
 
         seems to be laid up quite a bit and has restricted or eliminated 
 
         most of the activities engaged in prior to the injury.  He stated 
 
         that he is a senior in high school and plays football and that 
 
         his stepfather does attend his football games.
 
         
 
              Scott Kerr testified that he is married to claimant's sister 
 
         and presently works in MaComb, Illinois.  He reported that he 
 
         first met claimant around August of 1984.  Mr. Kerr stated that 
 
         he has observed that claimant does have physical limitations and 
 
         seems to have difficulty walking around the house, gardening, 
 
         carrying heavy objects and children.  His observations of 
 
         claimant indicate that the claimant walks carefully and slowly as 
 
         if in pain.  On cross-examination Mr. Kerr said that he does not 
 
         see claimant each and every week.
 
         
 
              April L. Kerr testified that she is the sister of claimant 
 
         and grew up with him.  She said she saw him on numerous occasions 
 
         prior to his injury and he always seemed to be a healthy person 
 
         who did a lot of things with his family.  After the injury, Ms. 
 
         Kerr noticed that claimant moved much slower and stiffer.  She 
 
         said his condition seems to be about the same today as it was 
 
         when he was first injured.  She also outlined a number of 
 
         activities that the claimant has no longer engaged in since his 
 
         injury.  She said she also noticed that claimant now walks with a 
 
         limp which he did not do prior to the injury.
 
         
 
              Marian S. Jacobs testified that she is a rehabilitation 
 
         placement specialist who works throughout the state of Iowa.
 
         
 
         She identified exhibit 12 as her vocational evaluation report 
 
         concerning the claimant.  She stated that in connection with her 
 
         vocational rehabilitation evaluation she contacted a number of 
 
         employers and reviewed claimant's medical records.  She said she 
 
         also talked with one of claimant's doctors.  Ms. Jacobs expressed 
 
         her opinion as to the claimant's industrial disability.  She 
 
         further stated that in her opinion that claimant did have the 
 
         ability and intelligence to complete a college education.
 
         
 
              Douglas L. Nelson testified that he is employed by North 
 
         Central Rehabilitation Services as a rehabilitation consultant.  
 
         He stated that he had conducted an interview of the claimant and 
 
         reviewed the medical records concerning him as well as talking 
 
         with his employer.  Mr. Nelson observed that the claimant had had 
 
         a variety of employers in the past seventeen years and indicated 
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page   6
 
         
 
         
 
         that most of the jobs available to claimant are highly skilled or 
 
         physically demanding.  He stated that he believed that the 
 
         restrictions claimant presently has would allow him to work in a 
 
         light duty classification.  Mr. Nelson indicated that he thought 
 
         claimant's age was a favorable factor in rehabilitating him to 
 
         the work force.  Mr. Nelson said he had reviewed and was familiar 
 
         with the report prepared by Ms. Jacobs.
 
         
 
              Paul Larson testified that he is employed by defendant as a 
 
         general foreman in the melt shop.  He stated that claimant worked 
 
         under him while employed there.  Mr. Larson said he also 
 
         supervised claimant following his injury.  According to Mr. 
 
         Larson, he was advised of claimant's work restrictions through 
 
         the personnel director and directed to provide work to the 
 
         claimant within those restrictions.  Claimant worked for three or 
 
         four days painting and cleaning.  Mr. Larson said that he told 
 
         claimant that he had a copy of the restrictions and understood 
 
         them.  He said he placed no time limits on the claimant, advised 
 
         claimant that he could sit and rest if need be, and could go home 
 
         as needed.  It was his understanding that the restrictions would 
 
         apply as long as necessary though he did not understand that the 
 
         restrictions were to be permanent.
 
         
 
              Mr. Larson said that after the first three or four days in 
 
         which claimant returned to work he left for about a week because 
 
         the claimant thought there was only so much work to do.  He said 
 
         that to the best of his knowledge the personnel director called 
 
         the claimant and advised that there would be more work and that 
 
         he should return and report to work.  Mr. Larson said claimant 
 
         did this and worked for another four or four and a half days and 
 
         then left work again.  Mr. Larson denied any knowledge of a 
 
         specific incident prompting claimant to leave work the second 
 
         time.  Mr. Larson said claimant was allowed to lie down if he 
 
         needed to and that he did so on at least one occasion.
 
         
 
               Rose Harmon testified that she is employed as the personnel 
 
         director at defendant and is in charge of hiring applicants.  She 
 
         stated that she does know the claimant.  Ms. Harmon stated that 
 
         she was present during the testimony of the claimant and that she 
 
         did not understand that the light duty work offered to claimant 
 
         by the plant manager was to be of limited duration.  She stated 
 
         that it was her understanding that claimant was to have light 
 
         duty work as long as he needed to.  She stated that the idea of 
 
         allowing claimant to return to work on light duty was to get him 
 
         in a position where he could bid on a light duty job and be 
 
         retained in a permanent status.
 
         
 
              Ms. Harmon stated that when claimant was released to return 
 
         to work in April 1985 they did not have light duty work available 
 
         at the plant.  She stated, however, that when claimant came in 
 
         September 1985 with permanent restrictions from the doctor that 
 
         there was work available.  She said after claimant's first return 
 
         to work he worked three and a half days and then went home 
 
         because of back pain.  She said it was assumed that claimant 
 
         would be returning to work, but he did not do so of his own 
 
         volition.  Ms. Harmon then called the claimant and asked him why 
 
         he had not returned to work and he indicated that he did not 
 
         understand that there was additional work for him.  She said 
 
         claimant then returned on September 9, 1985, worked four and a 
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page   7
 
         
 
         
 
         half days, and left because of back pain.  She said there was no 
 
         indication of claimant suffering an additional injury as the 
 
         result of being blown over by the wind.  She stated that when 
 
         claimant did not return to work on September 23, 1985 his 
 
         workers' compensation benefits were terminated.
 
         
 
              Ms. Harmon stated that claimant later returned to her office 
 
         with the union president to find out if there would be a 
 
         permanent job within the restrictions established by the doctor.  
 
         She indicated to the claimant that there would be work available 
 
         to him within the restrictions as long as he needed it.  She said 
 
         claimant advised her at that time that he was going to become a 
 
         full-time student.  According to Ms. Harmon, work is still 
 
         available for the claimant within his restrictions and he has not 
 
         been terminated by the employer.  Ms. Harmon indicated that if 
 
         claimant reported to work on the day following this hearing he 
 
         would be put to work within the restrictions at the defendant's 
 
         plant.  She added that claimant had not lost any of his seniority 
 
         rights at the defendant's plant.
 
         
 
              William R. Pontarelli, M.D., testified by deposition which 
 
         was admitted into the record as claimant's exhibit 14.  Dr. 
 
         Pontarelli was deposed on July 10, 1985.  Dr. Pontarelli advised 
 
         that he is a specialist in orthopedic surgery at the Steindler 
 
         Clinic in Iowa City, Iowa.  He reported that he first saw the 
 
         claimant in January 1985 in a follow up for Dr. Gelman who had 
 
         previously retired from the clinic.  Dr. Pontarelli advised that 
 
         Dr. Gelman had first seen the claimant on November 1, 1984 at 
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page   8
 
         
 
         
 
         which time he took a history from the claimant consistent with 
 
         that which claimant testified to at trial.  According to Dr. 
 
         Pontarelli, Dr. Gelman had diagnosed a large herniated disc at 
 
         L5-Sl in the claimant and had operated to remove that disc in 
 
         November 1984.  Dr. Pontarelli said that when he examined the 
 
         claimant in January 1985 it appeared that the incision had healed 
 
         and he examined claimant for reflexes sensation and nerve root 
 
         irritation.
 
         
 
              Dr. Pontarelli stated that he had continued to follow 
 
         claimant following his surgery.  Dr. Pontarelli stated that his 
 
         last examination of the claimant was in May of 1985 and it was 
 
         his opinion that the claimant's condition at that time had not 
 
         changed since March of 1985.  Claimant, however, was not released 
 
         to return to work until May 1985 and that was with certain 
 
         restrictions.  Dr. Pontarelli stated that in his opinion claimant 
 
         suffered a permanent partial impairment to the body as a whole 
 
         equal to twenty percent based upon the manual of the American 
 
         Academy of Orthopaedic Surgeons, the claimant's complaints of 
 
         pain, and positive findings of nerve root irritation.  It was Dr. 
 
         Pontarelli's further opinion that the impairment suffered by the 
 
         claimant was causally related to the injury he received in August 
 
         1984.
 
         
 
              On cross-examination Dr. Pontarelli was questioned about a 
 
         prior back injury suffered by the claimant in August 1983.  
 
         According to Dr. Pontarelli, that injury had no relationship to 
 
         the present disability suffered by the claimant.  The doctor 
 
         reiterated his position that he would not expect claimant's 
 
         condition to improve after May 1985.  The precise date given by 
 
         the doctor for achievement of maximum medical recovery was May 
 
         28, 1985.  Dr. Pontarelli outlined the following restrictions for 
 
         the claimant, to wit:  no lifting over twenty-five pounds once an 
 
         hour; need to change positions frequently, including sitting, 
 
         standing, and lying down; no climbing stairs; and, no climbing 
 
         ladders.  The doctor indicated that it was his opinion there was 
 
         little claimant could do to help his condition.  He did indicate 
 
         that approximately ten percent of the twenty percent impairment 
 
         rating he assigned to the claimant was based upon the claimant's 
 
         complaints of pain to him.
 
         
 
              Claimant's exhibits 1, 2, 3, 4, 5, 6, 8, 9, 11, and 15 are 
 
         all medical reports concerning the claimant's injury.  These 
 
         reports detail claimant's course of treatment and evaluation.  In 
 
         light of the parties' stipulation concerning claimant's injury 
 
         and the fact that it caused permanent disability, a complete and 
 
         detailed review of these exhibits need not be made.  Suffice it 
 
         to say that claimant did suffer an injury in August 1984 which 
 
         was followed by conservative treatment until November 1984 when 
 
         he was operated on to remove a large extruded disc at the L5-Sl 
 
         level of his spine.
 
         
 
              Claimant's exhibit 10 is a vocational preference analysis 
 
         which indicates that claimant has a wide interest and further 
 
         indicates he is ambitious, energetic, and multi-talented.  
 
         Claimant's exhibit 12 is a disability report by Marian S. Jacobs 
 
         concerning claimant.  This is a well written and detailed report 
 
         concerning claimant's prior work experience, education, and 
 
         background.  The report acknowledged the defendant's good faith 
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page   9
 
         
 
         
 
         efforts to return claimant to work.  Ms. Jacobs concludes that 
 
         claimant suffers significant vocational disability.  Claimant's 
 
         exhibit 13 is an outline of Ms. Jacobs' qualifications and 
 
         experience.
 
         
 
              Claimant's exhibit 17 is a copy of a bill from a court 
 
         reporter in the amount of $83.75 for the deposition of Paul 
 
         Larson.  Claimant's exhibit 16 is a letter from claimant's 
 
         counsel to defendant's counsel concerning examination and 
 
         treatment by Dr. Mackenzie.
 
         
 
              Defendant's exhibit A is a copy of a note dated September 3, 
 
         1985 from Dr. Pontarelli to whom it may concern outlining the 
 
         work restrictions he has established for claimant.  Defendant's 
 
         exhibit B is a return to work slip signed by Dr. Pontarelli dated 
 
         September 17, 1985.  Defendant's exhibit C is a letter dated 
 
         September 18, 1985 indicating that the work restrictions 
 
         established on September 3, 1985 were permanent.  Defendant's 
 
         exhibit D has been previously discussed and indicates that 
 
         claimant's workers' compensation will be terminated until he 
 
         returned to work.  Defendant's exhibit E is a copy of claimant's 
 
         work record with defendant which indicates his time off work and 
 
         return to work back in 1985.
 
         
 
              Defendant's exhibit F and G are letters from Dr. Mackenzie 
 
         dated August 13, 1985 and May 13, 1986.  A review of these 
 
         letters indicates that the August 13, 1985 letter was actually 
 
         written in August 1986.  In Dr. Mackenzie's May 13 letter he 
 
         briefly outlines claimant's history of injury and treatment 
 
         subsequent thereto.  The doctor further explains that as a result 
 
         of his examination he found that claimant had a straight leg 
 
         raising test positive on the right at 501 and a positive 
 
         Leseque's test.  In May Dr. Mackenzie scheduled claimant for a 
 
         right lumbosacral epidural steroid injection.  In his August 
 
         letter Dr. Mackenzie indicates that the claimant complained of 
 
         headaches and pain with bowel movements following the epidural 
 
         injection but stated that it was his opinion that those symptoms 
 
         were not related to the epidural steroid injection.  The doctor 
 
         stated that a second injection was scheduled for June but 
 
         claimant did not follow up with his appointment.  Dr. Mackenzie 
 
         further indicated that he could not make a definitive diagnosis 
 
         or recommendation without further testing of the claimant.
 
         
 
              Defendant's exhibit H is a number of letters from Laura V. 
 
         Calderwood, M.D., who had been seeing claimant in late 1985 for 
 
         depression.  She outlined the medications that she prescribed for 
 
         claimant but indicates that during the course of time that she 
 
         saw claimant she noted little improvement in his depressed 
 
         attitude.  Defendant's exhibit I is a physical examination report 
 
         of the claimant dated August 19, 1983.  This examination report 
 
         indicates that claimant did not have any disabilities at that 
 
         time.
 
         
 
              Defendant's exhibit J is a letter from defendant's counsel 
 
         to claimant's counsel advising him that he should keep his 
 
         appointments with Dr. Mackenzie.  Finally, defendant's exhibit K 
 
         is.a professional resume of Douglas L. Nelson.
 
         
 
         
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page  10
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              There is no argument between the parties concerning the fact 
 
         of claimant's injury or its causal relationship to the disability 
 
         from which the claimant presently suffers.  The only matters for 
 
         determination in this proceeding are the extent of disability 
 
         suffered by the claimant.  The first matter for consideration is 
 
         the extent of the healing period which claimant underwent.  Iowa 
 
         Code section 85.34(l) provides that an injured employee is 
 
         entitled to received healing period benefits commencing on the 
 
         date of the injury and until the employee "returned to work or it 
 
         is medically indicated that significant improvement from the 
 
         injury is not anticipated or until the employee is medically 
 
         capable of returning to employment substantially similar to the 
 
         employment in which the employee was engaged at the time of the 
 
         injury, whichever occurs first.O  Claimant's first return to work 
 
         in this case was in September 1985.  It would appear, however, 
 
         that prior to that time that claimant had achieved maximum 
 
         medical recovery.  This is based upon the opinion of Dr. 
 
         Pontarelli who indicated that in his opinion claimant achieved 
 
         maximum medical recovery on May 28, 1985.  Dr. Pontarelli's 
 
         deposition does indicate that the doctor noted little improvement 
 
         between March 1985 and May 1985; however, claimant was not 
 
         released on light duty status until May.  In addition, the doctor 
 
         did note that the usual recovery time from surgery such as 
 
         claimant had is six to nine months and since the surgery was 
 
         performed in late November 1984 it would appear that the six 
 
         month period would not have expired until May 1985.  For these 
 
         reasons the date of May 28, 1985 will be found to have been the 
 
         date upon which claimant achieved maximum medical recovery and it 
 
         will further be found that this was the first of the three events 
 
         to occur which are specified in section 85.34(l).
 
         
 
              The next matter for discussion is the extent of permanent 
 
         partial disability suffered by the claimant.
 
         
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the later to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not,so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page  11
 
         
 
         
 
         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 or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
         
 
              The Iowa Supreme Court in McSpadden v. Big Ben Coal Co., 288 
 
         N.W. 2d 181 (Iowa 1980) in what seemed to be dicta noted that 
 
         reasons for disability may not be related in a direct manner to 
 
         functional impairment and said at 192:
 
         
 
              For example, a defendant-employer's refusal to give any 
 
              sort of work to a claimant after he suffers his 
 
              affliction may justify an award of disability .... 
 
              Similarily, a claimant's inability to find other 
 
              suitable work after making bona fide efforts to find 
 
              such work may indicate that relief should be granted.
 
         
 
              Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980) was decided by the same court some two months after 
 
         McSpadden.  In that case the court stated:
 
         
 
              [T]he 1977 injury was a motivating reason for Blacksmith's 
 
              job transfer .... [His employer] disqualified him from 
 
              driving a truck in the belief driving a truck could cause 
 
              him to get phlebitis .... Blacksmith was transferred because 
 
              of this perceived risk of subsequent health impairment, and 
 
              the perception was indisputable based in part on the 1977 
 
              experience.
 
         
 
                 ....
 
         
 
              ... Blacksmith alleges an industrial disability, as the 
 
              concept is explained in McSpadden .... Blacksmith did incur 
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page  12
 
         
 
         
 
              an increased industrial disability and is not barred from 
 
              recovery by failure to prove an increased functional 
 
              disability of his leg. (citation omitted)  This is the case 
 
              of an employee who has no apparent functional impairment and 
 
              who wants to work at the job he had before but is precluded 
 
              from doing so because his employer believes the past injury 
 
              disqualified him, resulting in a palpable reduction in 
 
              earning capacity.
 
         
 
              Although the court stated that they were looking for the 
 
         reduction in earning capacity, it is undeniable that it was the 
 
         "loss of earnings" caused by the job transfer for reasons related 
 
         to the injury that the court was indicating justified a finding 
 
         of "industrial disability."  Therefore, if a worker is placed in 
 
         a position by his employer after and because of an injury to the 
 
         body as a whole which results in actual reduction in earnings, 
 
         such action would appear to justify an award of industrial 
 
         disability even if the worker's "capacity" to earn has not been 
 
         diminished.
 
         
 
              Defendant in its brief argues that claimant is poorly 
 
         motivated and less than credible concerning the nature and extent 
 
         of the injury and disability that he presently suffers.  It is 
 
         clear, however, on review of the medical records that claimant 
 
         did suffer a significant injury to his lower back and continues 
 
         to have significant functional impairment as a result.  Both the 
 
         examinations by Dr. Pontarelli and Dr. Mackenzie which were 
 
         conducted after claimant's surgery revealed positive findings for 
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page  13
 
         
 
         
 
         neurological deficit in the claimant's sciatic nerve on the 
 
         right.  It was Dr. Pontarelli's opinion that .claimant's result 
 
         from his surgery was not as successful as is found in about 
 
         eighty or ninety percent of the cases.  As a consequence, 
 
         claimant continues to suffer residual problems as a result of the 
 
         herniated disc.  In addition, the work restrictions and 
 
         limitations established by the doctor for the claimant are indeed 
 
         severe and leave little doubt that he is precluded in the future 
 
         from engaging in heavy manual labor.  Thus, claimant is precluded 
 
         from returning to the kind of work for which he was most suited 
 
         prior to the injury.
 
         
 
              The most striking feature of this case, however, concerning 
 
         claimant's inability to find gainful employment centers around 
 
         the employer's efforts to return him to work.  It is clear on 
 
         this record that the efforts of the employer to return the 
 
         claimant to work have been made in good faith with full 
 
         recognition and appreciation of the limitations imposed upon him.  
 
         The employer has made available and continues to make available 
 
         to the claimant employment with them within the guidelines and 
 
         restrictions established by the doctor.  Claimant, either as a 
 
         result of concerns about job security or simply due to 
 
         misunderstanding, has not availed himself of the opportunities 
 
         the employer has provided to him.  These efforts of the employer 
 
         must be acknowledged in any determination of industrial 
 
         disability.  It would not be appropriate to allow claimant to 
 
         increase his industrial disability on the basis of unavailability 
 
         of work when such work is in fact available and has been offered.  
 
         To be sure, claimant may be well advised to exercise his personal 
 
         options to make a career change as a result of his injury.  The 
 
         availability of work to him, however, makes the decision to 
 
         change careers an option to the employee, not a necessity.
 
         
 
              Claimant made a relatively speedy recovery from his surgery 
 
         even though the results of that surgery were not as great as one 
 
         might have hoped.  Further, the record is replete with evidence 
 
         that the claimant is intelligent and quite capable of pursuing an 
 
         academic career.  Claimant has demonstrated that he is motivated 
 
         to expand his career options even though he may be less motivated 
 
         to return to the industrial setting.  In light of his injury, his 
 
         position and attitude is understandable.  Claimant did, however, 
 
         specifically state that it would be his first choice to return to 
 
         work at Griffin Wheel and not to continue his college education. 
 
          Griffin Wheel has given the employee the opportunity to return 
 
         to work and at the time of hearing that offer remained 
 
         outstanding.  In light of this factor and in light of all of the 
 
         factors that bear upon a determination of industrial loss, 
 
         claimant's industrial disability as a result of this injury will 
 
         be determined to be twenty-five percent.
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, the following facts are found:
 
         
 
              1.  On August 13, 1984 claimant received an injury to his 
 
         low back while moving a fifty pound bag at work.
 
         
 
              2.  As a result of the injury, claimant underwent a 
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page  14
 
         
 
         
 
         discectomy at L5-Sl of his spine.
 
         
 
              3.  Claimant was off work as a result of his injury from 
 
         August 13, 1984 until August 26, 1985.
 
         
 
              4.  Claimant achieved maximum medical recovery from his 
 
         injury on May 28, 1985.
 
         
 
              5.  Claimant has significant functional impairment as a 
 
         result of his injury.
 
         
 
              6.  Claimant has significant physical restrictions as a 
 
         result of his injury.
 
         
 
              7.  Claimant has pursued a successful academic career since 
 
         his injury.
 
         
 
              8.  Claimant has been and continues to be offered work at 
 
         defendant within his limitations.
 
         
 
              9.  Claimant is intelligent and well motivated to improve 
 
         his vocational skills.
 
         
 
             10.  Claimant cannot return to heavy manual labor.
 
         
 
             11.  Claimant's rate of compensation is $276.38.
 
         
 
             12.  Claimant has been paid some weekly compensation 
 
         benefits.
 
         
 
             13.  Claimant's industrial disability as a result of his 
 
         injury is twenty-five percent.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, the following conclusions are made:
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         as a result of his injury he is entitled to healing period 
 
         benefits from August 13, 1984 to May 29, 1985.
 
         
 
              Claimant has proven by a preponderance of the evidence that 
 
         he has suffered an industrial disability as a result of his 
 
         injury equal to twenty-five percent of the body as a whole.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendant pay unto claimant 
 
         forty-one and two-sevenths (41 2/7) weeks of healing period 
 
         benefits at his rate of two hundred seventy-six and 38/100 
 
         dollars ($276.38) for the period from August 13, 1984 to May 29, 
 
         1985 and one hundred twenty-five (125) weeks of permanent partial 
 
         disability benefits thereafter at the same rate.  Defendant is 
 
         given credit for benefits previously paid.  All accrued payments 
 
         shall be in a lump sum together with statutory interest.
 
         
 
              Defendant shall pay the costs of this action.
 
         
 
              Defendant shall file a claim activity report within thirty 
 

 
         
 
         
 
         
 
         BOATMAN V. GRIFFIN WHEEL COMPANY
 
         Page  15
 
         
 
         
 
         (30) days of the date hereof.
 
         
 
         
 
              Signed and filed this 31st day of October, 1986.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         STEVEN E. ORT
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         Keokuk, Iowa 52632-1066
 
         
 
         Mr. John E. Kultala
 
         Attorney at Law
 
         511 Blondeau Street
 
         Keokuk, Iowa 52632
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              1802; 1803
 
                                              Filed:  October 31, 1986
 
                                              STEVEN E. ORT
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         STEVEN L. BOATMAN,
 
         
 
               Claimant,
 
         
 
         VS.                                           File No 772267
 
         
 
         GRIFFIN WHEEL COMPANY,                   A R B I T R A T I 0 N
 
         
 
               Employer,                              D E C I S I 0 N
 
               Self-Insured,
 
               Defendant.
 
         
 
         
 
         
 
         1802; 1803
 
         
 
              This was a case involving nature and extent of disability 
 
         from an L5-Sl discectomy.  Employer had offered and continued to 
 
         offer claimant employment.  Claimant decided he would rather go 
 
         to school.  Claimant had twenty percent functional rating, severe 
 
         limitations, and residual pain and neurological deficit.  
 
         Twenty-five percent body as a whole award was made.  Healing 
 
         period terminated on maximum medical recovery.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN L. BOATMAN,                         File No. 772267
 
         
 
              Claimant,                              R E V I E W -
 
         
 
         vs.                                       R E O P E N I N G
 
         
 
         GRIFFIN WHEEL CO.,                         D E C I S I O N
 
         
 
              Employer,                                F I L E D
 
              Self-insured,
 
              Defendant.                              APR 06 1988
 
         
 
                                              IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by Steven 
 
         L. Boatman, claimant, against Griffin Wheel Co., employer and 
 
         self-insured defendant for benefits as a result of an injury that 
 
         occurred on August 13, 1984.  A prior hearing was held on August 
 
         19, 1986 and a decision was filed on October 31, 1986 awarding 
 
         claimant 41 and 2/7 weeks of healing period benefits and 125 
 
         weeks of permanent partial disability benefits.  This hearing was 
 
         held on August 3, 1987 at Burlington, Iowa and the case was fully 
 
         submitted at the close of the hearing.  The record consists of 
 
         the testimony of Steven L. Boatman (claimant), Jerome Neyens 
 
         (assistant plant controller), Betty Leeper (timekeeper), Jane 
 
         Watson (receptionist) and Rose Harmon (personnel and safety 
 
         coordinator), joint exhibits one through six and joint exhibit 
 
         seven, and defendant's exhibits B and C.
 
         
 
                                 STIPULATIONS
 
         
 
              The parties stipulated to the following matters.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That claimant sustained an injury on August 13, 1984 which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         benefits, is $276.38 per week.
 
         
 
              That defendant claims no credit for previous payment of 
 
                                                
 
                                                         
 
         benefits under an employee nonoccupational group health plan and 
 
         claims no credit for workers' compensation benefits paid prior to 
 
         the hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether the injury is the cause of any temporary disability 
 
         based upon a change of condition after the prior hearing on 
 
         August 19, 1986.
 
         
 
              Whether the injury is the cause of any additional permanent 
 
         disability based upon a change of condition after the prior 
 
         hearing on August 19, 1986.
 
         
 
              Whether claimant is entitled to additional compensation for 
 
         temporary disability benefits.
 
         
 
              Whether claimant is entitled to additional compensation for 
 
         permanent disability benefits.
 
         
 
              Whether claimant is entitled to certain medical mileage was 
 
         resolved by the parties at the conclusion of the hearing and 
 
         therefore requires no determination at this time.
 
         
 
                              RULING ON MOTION
 
         
 
              Defendant objected to the fact that claimant alleged a 
 
         change of medical condition in his original notice and petition 
 
         and then presented evidence of both medical and nonmedical 
 
         (economic) change of condition at the hearing.  Claimant then 
 
         moved to amend the petition to conform to the proof.  A ruling on 
 
         that motion was deferred until this decision.
 
         
 
              It is now determined that it is not necessary to amend the 
 
         petition to conform to the proof.  The petition in this case is 
 
         sufficient on it's face.  Even though the petition states at item 
 
         number ten, "Change in circumstances.  Medical condition being 
 
         worse.", it also states at item 16 that one of the disputed 
 
         issues is "Industrial disability" and also specifies "Extent of 
 
         disability" in item 16.  It is now determined that item 16 fairly 
 
         put defendant on notice that both medical and nonmedical change 
 
         of condition were possible issues in this case.  Defendant did 
 
         not claim surprise.  On the contrary, it is apparent from the 
 
         presentation of the evidence by both parties that both of them 
 
         were fully cognizant of the issues and were well prepared to 
 
         present evidence on both issues.  Therefore, it is not necessary 
 
         to amend the petition to conform to the proof because the 
 
         petition itself fully apprised defendant of the issues in this 
 
         case. Defendant's objection is overruled.
 
         
 
                                                
 
                                                         
 
              Furthermore, workers' compensation practice does not require 
 
         the parties to observe technical forms of pleading.  The petition 
 
         need only state the claim in general terms and formal rules of 
 
         procedure need not be observed.  Alm v. Morris Barrack Cattle Co., 
 
         240 Iowa 1174, 1177, 38 N.W.2d 161, 163 (1949); Yeager v. 
 
         Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 
 
         Cross v. Hermansen Bros., 235 Iowa 739, 16 N W.2d 616 (1944).  
 
         From the evidence presented at the hearing it is evident that 
 
         employer was generally informed of the basic facts upon which the 
 
         employee relied and had an opportunity to prepare and defend.  
 
         Hoenig v. Mason & Hanger, Inc., 162 N.W.2d 188, 192 (Iowa 1968).
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the pertinent evidence.
 
         
 
              Official notice is taken of the decision of Deputy 
 
         Industrial Commissioner Steven E. Ort on October 31, 1986 [Iowa 
 
         Administrative Procedure Act 17A.14(4)].  After the injury on 
 
         August 13, 1984 and at the time of the first hearing on August 
 
         19, 1986, claimant was enrolled in college at Southeastern 
 
         Community College.  He only needed five months to complete his 
 
         chosen course of study and receive an Associate of Arts degree 
 
         (Decision page 2, paragraph 5).  Employer provided claimant a 
 
         full-time job within his restrictions after the injury and the 
 
         surgery.  Claimant worked for a few days in August of 1985 and 
 
         again for a few days in September of 1985.  Claimant testified 
 
         that it was his understanding that this job was only temporary; 
 
         however, employer testified that it was available as long as 
 
         claimant wanted it. Deputy Ort concluded that employer did make 
 
         full-time employment available to claimant within his 
 
         restrictions, but claimant did not avail himself of the 
 
         opportunity and that claimant may well have opted to make a 
 
         career change (Dec. p. 13, par. 2).  Deputy Ort further found 
 
         that claimant had pursued a successful academic career since the 
 
         injury (Dec. p. 14, par 7).
 
         
 
              Claimant's injury on August 13, 1984 was a herniated disc at 
 
         L-5, S-1 that was surgically corrected at the University of Iowa 
 
         Hospitals and Clinics.  After the surgery certain restrictions 
 
         were imposed on claimant which are typical following a 
 
         laminectomy (Dec. p. 8, par 1 & 3).  These restrictions have 
 
         never been changed.
 
         
 
              At the first hearing, Rose Harmon, personnel and safety 
 
         coordinator, testified that claimant would be put to work within 
 
         his restrictions if he showed up at work on 7 a.m. the morning 
 
         following the hearing (Dec. p. 7, par 3).  It was indicated by 
 
         way of argument at this hearing that either claimant or his 
 
         attorney indicated that he would be there.
 
         
 
              Claimant did not appear at employer's place of business at 7 
 
         a.m. the following morning.  To the contrary, claimant testified 
 
         that the prior hearing lasted several hours from approximately 1 
 
                                                
 
                                                         
 
         p.m. to 7:30 p.m.  Claimant testified that he had problems 
 
         standing and sitting at that hearing.  He said that he suffered a 
 
         recurrence of the back pain caused by the injury of August 13, 
 
         1984.  He related that he went to the Keokuk Area Hospital at 4 
 
         a.m. on August 20, 1987, the morning after the first hearing.  
 
         The medical doctor there reported that he saw claimant in the 
 
         emergency room for a ruptured lumbar disc aggravation.  The 
 
         doctor directed that claimant needed to be off work that day, 
 
         August 20, 1987, and perhaps longer.  He said claimant should 
 
         check with his own doctor regarding when to return to work.  The 
 
         name of this doctor appears to be Dr. Barrows (Joint exhibit 1).
 
         
 
              Claimant then saw his authorized treating physician, D. 
 
         Mackenzie, M.D., an orthopedic surgeon, the following day on 
 
         August 21, 1987.  Dr. Mackenzie diagnosed possible recurrent L-5 
 
         disc herniation on the right and indicated claimant would be 
 
         totally disabled from August 21, 1986 through September 21, 1986 
 
         (Jt. ex. 2).
 
         
 
              This flare-up may explain why the petition in this case was 
 
         signed on August 28, 1986, only nine days after the first 
 
         hearing, by claimant's counsel and was marked "Change in 
 
         circumstances. Medical condition being worse."  (original notice 
 
         and petition)
 
                           
 
                                                         
 
              At this time Dr. Mackenzie moved to Texas.  He referred 
 
         claimant and his other patients to Dr. Weinstein (full name 
 
         unknown) at the University of Iowa, Hospitals and Clinics.  Dr. 
 
         Weinstein said on October 2, 1986 that claimant presents with 
 
         occasional back pain but that he did not have much right buttock 
 
         or right leg pain.  His physical examination was essentially 
 
         normal.  A CT scan showed the old laminectomy at L-5, S-1.  No 
 
         obvious pathologies were seen.  Dr. Weinstein estimated 
 
         claimant's impairment to be approximately eight to ten percent.  
 
         He concluded by saying "I recommend the patient continue his 
 
         treatment through Vocational Rehabilitation learning a new 
 
         occupation which he seems to be happy with." (Jt. ex. 3).
 
         
 
              Claimant testified that when Dr. Weinstein learned that he 
 
         had a workers' compensation claim, Dr. Weinstein told him that 
 
         there was nothing he could do for him.
 
         
 
              Claimant testified that after he saw Dr. Weinstein on 
 
         October 2, 1986, that he went to the plant three times and asked 
 
         to see Rose.  Defendant's counsel pointed out that in his 
 
         deposition taken on May 21, 1987 that claimant testified that he 
 
         only went to the plant twice (Ex. C, p. 82, line 21).  Claimant 
 
         continued to testify that he never did get to see Rose because it 
 
         was either her one-half day off or because she had gone to lunch 
 
         or because she was in a meeting.  Claimant testified at this 
 
         hearing that the reason he wanted to see Rose was to get the name 
 
         of an authorized physician and to make arrangements to return to 
 
         work.  Claimant said that in August and November of 1986 that he 
 
         either called or went to the plant two times a week.  He 
 
         estimated that he tried to make contact a total of approximately 
 
         eight times in October and another eight times in November.  
 
         Claimant said that most of the time he called on the telephone 
 
         from a neighbor's house.  He stated that each time he left his 
 
         neighbor's telephone number but that he never received a call 
 
         back from Rose.  Defendant's counsel pointed out that in his 
 
         deposition claimant said that he only made two or three telephone 
 
         calls to Rose (Ex. C, p. 64, line 18). Claimant testified that 
 
         these telephone calls were on his neighbor's telephone bill.  He 
 
         stated that he has a copy of this bill in his possession but he 
 
         forgot to bring it with him to the hearing.  Claimant continued 
 
         that when he heard nothing from employer by December of 1986 that 
 
         his lawyer wrote two letters to employer which claimant signed.  
 
         A letter requesting the name of a physician was dated December 
 
         10, 1986 and reads as follows:
 
         
 
                   I am hereby requesting that I be sent to a doctor 
 
              because of present complaints from my workman's compensation 
 
              injury of August 13, 1984, and since the company doctor, Dr. 
 
              Mackenzie has now moved to Texas and is no longer available. 
 
              Please advise me who I should see.  It is imminent that I 
 
              see a doctor right away.
 
         
 
         (Ex. 4)
 
         
 
              A letter requesting to return to work was dated December 19, 
 
                                                
 
                                                         
 
         1986 and it reads as follows:  "I have attempted to contact you 
 
         on numerous occasions before including leaving messages.  I have 
 
         not received any response.  Please advise when and what time I 
 
         can report to work."  (Ex. 5).  As a result of his letter for the 
 
         name of a physician employer arranged an appointment for claimant 
 
         with O. Gerald Orth, M.D., a neurosurgeon, at Columbia, Missouri 
 
         which is 220 miles away.  Claimant testified that he was unable 
 
         to keep the first appointment on January 19, 1987 due to weather 
 
         conditions but that he did see Dr. Orth on February 4, 1987.
 
         
 
              Dr. Orth reported that claimant stated that he had low back 
 
         pain.  A CT scan of May of 1986 demonstrated either a retained 
 
         disc fragment or secondary scarring from his earlier L-5, S-1 
 
         disc excision.  Dr. Orth said there was no evidence of nerve root 
 
         compression.  He did not believe further surgery would relieve 
 
         claimant's current subjective complaints.  Dr. Orth concluded as 
 
         follows:
 
         
 
              At the present time he is capable of returning to full time 
 
              employment with the exception that he will again experience 
 
              muscle spasm and pain in the low back.  If he wishes to 
 
              tolerate this discomfort, then he is capable of returning to 
 
              his previous job.  If he is not capable of tolerating his 
 
              discomfort, then he will not be able to tolerate work 
 
              related situation.  I do not believe returning to work would 
 
              necessarily increase his chances for additional disc 
 
              problems.
 
         
 
                   The patient is in terrible physical conditioning as a 
 
              result of non-use of his back and leg muscles over the past 
 
              year.  He would certainly benefit from an exercise program 
 
              which would put stress on weekly improvement.  Whether he 
 
              would benefit from antidepressant medication or Tens Unit is 
 
              questionable.
 
         
 
         (Ex. 7)
 
         
 
              Employer arranged a work capacity evaluation for claimant at 
 
         the University of Iowa on April 21, 1987.  Claimant testified 
 
         that he missed this evaluation because he had chicken pox.
 
         
 
              A second examination was scheduled for June 16, 1987 but 
 
         claimant also failed to keep this appointment.
 
         
 
              Claimant testified that he last worked for employer in 
 
         September of 1985.  Claimant testified that it was his 
 
         understanding that if he did not return to work to this special 
 
         job that employer had created for him that he was in effect 
 
         laidoff.  He said that this is why he never returned to work 
 
         after September of 1985.  He testified that he then became a 
 
         full-time student 18 hours a day.  He also testified that he was 
 
         a full-time student from January of 1987 to May of 1987.  He 
 
         attended classes which lasted three or four hours per day during 
 
         that period of time.  He also testified that if employer had 
 
         offered him a job during that period of time he would have gone 
 
                                                
 
                                                         
 
         back to work.
 
         
 
              Claimant testified that after the flare-up of his back on 
 
         August 20, 1986 his back returned to about the same condition 
 
         that it was in at the time of the first hearing.
 
         
 
              Claimant testified that he could not find a job near home.  
 
         It was brought out however, that he did not make any job 
 
         applications, but simply asked several employers if they were 
 
         hiring.  Claimant averred that the only job that he could find was 
 
         in Temple, Texas for the Kirby Company at $1,200.00 per month 
 
         knocking on doors and setting up sales interviews for vacuum 
 
         sweeper salesmen.  Claimant said that at Griffin Wheel he earned 
 
         $17,000.00 to $18,000.00 per year, plus shift differential, 
 
         overtime pay and employee benefits of medical insurance, sick pay, 
 
         pension benefits and vacation time. He stated that his present job 
 
         has none of these additional benefits.  Claimant stated that he 
 
         hopes to find better employment later which is more suited to his 
 
         Associate of Arts degree in psychology.  He was hoping to find a 
 
         job working with the mentally retarded.
 
         
 
              Jerome Neyens, assistant plant controller, testified that 
 
         after the hearing on August 19, 1986 he only saw claimant at the 
 
         plant on one occasion and that was during the lunch hour on 
 
         November 6, 1986.  It was an unusual encounter and therefore he 
 
         made a note of it.  Claimant was wearing a plaid shirt and was 
 
         wearing a device like a corset, girdle or brace outside of his 
 
         shirt.  Claimant said he needed a doctor, or wanted to see a 
 
         doctor or wanted the name of a doctor.  Neyens testified that 
 
         Rose Harmon, who normally handles these matters, was out of the 
 
         office that day.  Claimant did not appear to be in pain and when 
 
         Neyens determined it was not an emergency situation he told 
 
         claimant to call Rose Harmon on the following day.  Neyens 
 
         further testified that claimant did not ask for work on that 
 
         occasion.  The witness stated that he left a note for Harmon to 
 
         the effect that claimant was in and inquired about a doctor.
 
         
 
              Betty Leeper testified that she is the timekeeper for 
 
         employer.  Since the last hearing on August 19, 1986 she only saw 
 
         claimant at the plant on one occasion and that was during the 
 
         lunch hour.  Claimant was wearing a plaid shirt with a corset 
 
         over his outer clothing.  He said he was in need of medical 
 
         attention and wanted to know who he should go see.  Rose was not 
 
         there so she had him talk to Neyens.  Claimant did not ask for 
 
         work on that occasion.  Leeper further testified that she did not 
 
         receive any subsequent telephone calls from claimant.
 
         
 
              Jane Watson testified that she is the receptionist at the 
 
         plant.  Visitors see her first and she also answers the incoming 
 
         telephone calls, except during the lunch hour.  She testified 
 
         that after the hearing on August 19, 1986 claimant never appeared 
 
         in person at the plant to ask for Rose Harmon or anyone else.  
 
         She further testified that she did not receive any telephone 
 
         calls from claimant to the best of her knowledge.  She testified 
 
         that claimant has never come to the plant to ask for a doctor or 
 
                                                
 
                                                         
 
         a job, either one, to the best of her knowledge.
 
         
 
              Rose Harmon testified that she has been the coordinator of 
 
         personnel and safety since June of 1981.  She attended and 
 
         testified at the first hearing on August 19, 1986.  She said that 
 
         claimant appeared to be in severe pain at the previous hearing.  
 
         He shuffled when he walked.  He alternated standing up and sitting 
 
         down.  He held his back with his hand and made grunt noises.  She 
 
         stated that he wore his back brace on the outside of his clothing 
 
         at the hearing.    Harmon acknowledged that she did testify that a 
 
         job was available for claimant the following morning after the 
 
         hearing.  Claimant did not appear to go to work.  Instead she 
 
         received a slip from a doctor that he was unable to work because 
 
         of a disc problem.  Dr. Mackenzie then wrote that claimant was to 
 
         be off work until September 21, 1986 because of a disc problem.  
 
         Next she received a bill from Dr. Weinstein, who was not an 
 
         authorized physician at that time.  She requested claimant to come 
 
         to the plant on October 15, 1986 or October 16, 1986 to sign a 
 
         medical release so she could pay Dr. Weinstein.  This is the first 
 
         and only time she saw claimant at the plant after the hearing on 
 
         August 19, 1986.  She related that claimant said nothing about (1) 
 
         coming back to work (2) did not ask if a job was still available 
 
         for him (3) if that restricted duty job still was available to 
 
         him.  The next time he was in the plant was November 6, 1986 when 
 
         he talked to Neyens and Leeper.  She said Neyens instructed 
 
         claimant to call her the following morning.  She further testified 
 
         that claimant did not call her the following morning.  She stated 
 
         that she did not call claimant because claimant does not have a 
 
         telephone.  She said that claimant had never furnished her with a 
 
         telephone number where he could be called at the neighbors.
 
         
 
              Harmon then testified that she received the petition in this 
 
         case on November 13, 1986.  The petition said that claimant's 
 
 
 
                           
 
                                                         
 
         medical condition had worsened.  Next, on December 15, 1986 she 
 
         received claimant's letter dated December 10, 1986 that he wanted 
 
         the name of a doctor and that it is imminent that he see a doctor 
 
         right away.  This letter said nothing about a return to work. 
 
         Harmon testified that she next received the information that 
 
         claimant wanted to know when and what time he could return to 
 
         work.  This letter was dated December 9, 1986 but, it was 
 
         postmarked January 8 or 9, 1987 and she did not actually receive 
 
         it until January 12, 1987.
 
         
 
              Harmon stated that with respect to claimant's first request 
 
         to see a doctor she arranged an appointment with O. Gerald Orth, 
 
         M.D., a neurosurgeon, at Columbia, Missouri.  She said she picked 
 
         Dr. Orth at that distance of 220 miles away because the local 
 
         doctor had recently misdiagnosed patients on two different 
 
         occasions.  Therefore, the company did not want to continue to 
 
         use him.  Furthermore, claimant was also displeased with this 
 
         very same local doctor.  Both Harmon and claimant had been happy 
 
         with Dr. Mackenzie but he had left town and someone new had to be 
 
         selected.  Another patient who had seen Dr. Orth came out real 
 
         well.  Dr. Orth being a neurosurgeon was well qualified. 
 
         Therefore, she sent claimant to see Dr. Orth.
 
         
 
              With respect to claimant's second request to return to work, 
 
         Harmon thought she should have an evaluation from the University 
 
         of Iowa concerning claimant's ability to return to work.  
 
         Claimant had not actually worked for about one and one-half 
 
         years.  Also, claimant's two requests in December of 1986 "did 
 
         not jibe". Claimant said he wanted a doctor for immediate medical 
 
         attention and he also wanted to return to work immediately at the 
 
         same time. Under these circumstances Harmon felt a medical 
 
         evaluation was in order before allowing claimant to return to 
 
         work.  She also thought she should have a medical evaluation 
 
         because Dr. Barrows and Dr. Mackenzie indicated claimant had a 
 
         possible disc problem. In addition, Dr. Orth said that claimant 
 
         was in very poor physical condition and needed an exercise 
 
         program.  Therefore, she set up an appointment for a job capacity 
 
         evaluation at the University of Iowa.  Harmon added that she set 
 
         up two separate appointments and that claimant did not show up 
 
         for either one of these appointments.
 
         
 
              Harmon maintained that employer has had a light duty job 
 
         within claimant's restrictions available to him ever since he 
 
         voluntarily left it in September of 1985.  She also confirmed 
 
         that it was still available at the time of this second hearing.  
 
         She also testified that she was aware of the fact that claimant 
 
         was a full-time student even though claimant had not informed her 
 
         of it himself.
 
         
 
              Harmon testified that claimant did not call her at any time 
 
         between the first and second hearing with a request to return to 
 
         work.  Furthermore, she had not received any telephone notes or 
 
         messages that claimant had called her requesting a return to 
 
         work. She added that if she had received a request from claimant 
 
         she would not have allowed him to return to work because after 
 
                                                
 
                                                         
 
         the first hearing there was evidence from Dr. Mackenzie that said 
 
         that claimant might have a disc problem that was diagnosed on 
 
         August 20, 1986.
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              The operative phrase in a review-reopening proceeding is 
 
         change of condition.  Lawyer & Higgs, Iowa Workers' Compensation 
 
         -- Law and Practice, section 20-2.
 
         
 
              The employee must prove by a preponderance of the evidence 
 
         that the increase in incapacity on which he bases his claim is 
 
         the result of the original injury.  Wagner v. Otis Radio & 
 
         Electric Co., 254 Iowa 990, 993-94, 119 N.W.2d 751, 753 (1963); 
 
         Henderson v. Isles, 250 Iowa 787, 793-94, 96 N.W.2d 321, 324 
 
         (1959).
 
         
 
              If there is substantial evidence of a worsening of condition 
 
         not contemplated at the first award then a review-reopening is 
 
         justified.  Bousfield v. Sisters of Mercy, 249 Iowa 64, 86 N.w.2d 
 
         109 (1957).
 
         
 
              A change of condition may be something other than a physical 
 
         one or a medical one.  A change in earning capacity, subsequent 
 
         to the initial award caused by the original injury, can also 
 
         constitute a change of condition.  Blacksmith v. All-American 
 
         Inc., 290 N.W.2d 348 (Iowa 1980); McSpadden v. Big Ben Coal Co., 
 
         2888 N.W.2d 181 (Iowa 1980).  Since these later two decisions a 
 
         number of other nonmedical or economic changes of conditions have 
 
         been entertained by the industrial commissioner.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 13, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
                                                
 
                                                         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he suffered a temporary aggravation or 
 
         change of condition of his earlier injury of August 13, 1984.  
 
         Dr. Barrows, the emergency room physician, on August 20, 1986 
 
         said that claimant aggravated his ruptured lumbar disc and needed 
 
         to be off work that day (Ex. 1).  Dr. Mackenzie said on August 
 
         21, 1986 that claimant had a recurrence of the L-5 disc 
 
         laminectomy (Ex. 2).  This was also confirmed by Dr. Weinstein by 
 
         virtue of using the August 13, 1984 injury and resultant surgery 
 
         as the basis of the history for claimant's complaints when he saw 
 
         him on October 2, 1986 (Ex. 3).  Also, Dr. Orth could only rely 
 
         on the same history for claimant's complaints (Ex. 7).  No other 
 
         cause is suggested by any of the evidence.  Claimant was off work 
 
         from August 20, 1986 through September 21, 1986 (Exs. 1 & 2). 
 
         Therefore, it is determined that the injury on August 13, 1984 
 
         and resultant surgery from the injury was the cause of claimant's 
 
         inability to work during that period of time.  Therefore, 
 
         claimant is entitled to additional healing period benefits from 
 
         August 20, 1986 through September 21, 1986.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he has sustained a change of 
 
         condition that caused any additional permanent partial disability 
 
         based on either a medical or nonmedical (economic) change of 
 
         condition.
 
         
 
              The first injury was a herniated disc at L-5, S-1.  It was 
 
         repaired.  Certain restrictions were placed on claimant (Dec. p. 
 
         8, par. 1 & 3).  Dr. Barrows said that claimant had an 
 
         aggravation of this condition (Ex. 1).  Dr. Mackenzie said 
 
         claimant had a recurrence of this condition (Ex. 2).  Dr. 
 
         Weinstein merely recorded claimant's complaints of back pain but 
 
         not much leg pain (Ex. 3).  Dr. Orth stated that claimant's CT 
 
         scan showed a small defect which was either a retained disc 
 
         fragment or secondary scarring from his previous surgery (Ex. 7).  
 
         Dr. Weinstein actually decreased claimant's permanent functional 
 
         impairment rating from the 20 percent which was considered at the 
 
         first hearing to eight to ten percent (Ex. 3).  Dr. Orth did not 
 
         award a permanent impairment rating at all (Ex. 7).
 
         
 
              None of the doctors imposed any additional limitations or 
 
         restrictions on claimant.  Dr. Orth said that claimant could 
 
         return to full-time employment if he could tolerate the 
 
         discomfort.  If he could not tolerate discomfort, then he could 
 
         not return to the work related situation.  In any event, he did 
 
         not believe that returning to work would necessarily increase 
 
         claimant's chances for additional disc problems (Ex. 7).
 
         
 
              At the time of the hearing on August 19, 1986, claimant was 
 
         a full-time college student.  After the hearing and up until May 
 
         of 1987, claimant continued to be a full-time college student.  
 
         This was claimant's own personal choice of the endeavor that he 
 
         should follow.  He was medically able to be a student before and 
 
         after the hearing.  Therefore, based on the foregoing evidence it 
 
         is determined that claimant did not sustain the burden of proof 
 
                                                
 
                                                         
 
         by a preponderance of the evidence that he sustained a change of 
 
         medical condition after the hearing on August 19, 1986.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained a nonmedical 
 
         change of condition after the hearing on August 19, 1986.  If 
 
         claimant had reported for work at 7 a.m. on the morning after the 
 
         previous hearing and defendant had refused to employ him on the 
 
         former tailor-made job that had been designed to his 
 
         restrictions, then it could be grounds for a nonmedical or 
 
         economic change of condition.  Claimant did not however, report 
 
         to work the following morning.
 
         
 
              If claimant had reported to work at 7 a.m. on the morning 
 
         after the hearing and defendant had required a work capacity 
 
         evaluation, work hardening program or possible physical therapy 
 
         it could be grounds for a nonmedical or economic change of 
 
         condition. Claimant did not however, report for work.
 
         
 
              Instead, claimant reported to the emergency room.  Dr. 
 
         Barrows said he aggravated his ruptured lumbar disc.  Dr. 
 
         Mackenzie said he had a recurrence of his L-5 disc lamination and 
 
         needed to be off work for a month.  Under these circumstances 
 
         employer was justified in asking for an evaluation of work 
 
         capacity since claimant had already suffered one serious 
 
         on-the-job injury while working for defendant employer.  Dr. Orth 
 
         also pointed out that claimant was out of condition which further 
 
         justified defendant's request for a work capacity evaluation. 
 
         Furthermore, Harmon observed that claimant had not done any 
 
         physical work since September of 1985 when he told employer he 
 
         could not perform the job that had been tailor-made for him 
 
         within the doctor's restrictions.  In addition, the double 
 
         message which claimant sent to employer by requesting to be put 
 
 
 
                          
 
                                                         
 
         back to work immediately and also requesting immediate medical 
 
         attention, "did not jibe" as Harmon phrased it.  An evaluation 
 
         for work capacity under the facts of this case, considering what 
 
         transpired after the first hearing, was not unreasonable.
 
         
 
              Claimant testified that he made numerous attempts to return 
 
         to work in October and November of 1986.  He testified that he 
 
         made three trips to the plant and numerous telephone calls. 
 
         Defendant's counsel impeached claimant on his hearing testimony 
 
         by the testimony that claimant gave at the time of his deposition 
 
         on March 21, 1987.  Also, Neyens, Leeper, Watson and Harmon 
 
         contradicted and controverted claimant's testimony.  Neyens and 
 
         Leeper saw him at the plant once.  He wanted a doctor at that 
 
         time.  He did not ask to return to work.  Watson testified that 
 
         she never did see him at the plant but Neyens and Leeper 
 
         testified that claimant was there during Watson's lunch hour.  
 
         Watson testified that she never received any telephone calls from 
 
         claimant either.  Harmon testified that she never saw him in 
 
         person at the plant nor did she get any telephone calls or 
 
         telephone messages from him about returning to work.  Claimant 
 
         testified that the telephone calls were on his neighbor's 
 
         telephone bill but he nevertheless, neglected to bring the bill 
 
         to the hearing.
 
         
 
              Claimant admitted that he was a full-time student, 18 hours 
 
         a day, after the hearing on August 19, 1986 until he graduated 
 
         with an Associate of Arts degree in psychology in May of 1987.  
 
         His class hours ranged from three to four hours per day and he 
 
         also testified that the total work effort required 18 hours per 
 
         day. This testimony is inconsistent with claimant's statement 
 
         that he desired to return to work during this same period of 
 
         time.  It would appear that claimant was immersed in the 
 
         full-time job of being a college student.
 
         
 
              The greater weight of the evidence is that claimant did not 
 
         sustain the burden of proof of a nonmedical or economic change of 
 
         condition after the hearing on August 19, 1986 which was caused 
 
         by either defendant's failure to employee him or for any other 
 
         reason.  Claimant therefore, is not entitled to any additional 
 
         permanent partial disability benefits.
 
         
 
                              FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant was suffering from the residuals of a 
 
         herniated disc and it's corrective surgery at the time of the 
 
         hearing on August 19, 1986 and was suffering from the same 
 
         condition at the time of the hearing on August 3, 1987.
 
         
 
              That claimant did have an apparent temporary aggravation or 
 
         recurrence of this back condition from August 20, 1986 to 
 
         September 21, 1986 which rendered him unable to work during that 
 
         period of time.
 
                                                
 
                                                         
 
         
 
              That claimant did not prove facts that show a change in 
 
         impairment, diagnosis, prognosis, limitations or restrictions 
 
         that occurred after the hearing on August 19, 1986.
 
         
 
              That claimant did not prove facts that show a change in 
 
         nonmedical or economic condition after the hearing on August 19, 
 
         1986.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made.
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that the recurrence of his back 
 
         condition caused a temporary inability to work from August 20, 
 
         1986 through September 21, 1986.
 
         
 
              That claimant is entitled to additional healing period 
 
         benefits from August 20, 1986 through September 21, 1986.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained a change of 
 
         condition which caused any additional disability after the 
 
         hearing of August 19, 1986.
 
         
 
              That claimant is not entitled to any additional permanent 
 
         partial disability benefits.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant four point seven one four 
 
         (4.714) weeks of additional healing period benefits for the 
 
         period from August 20, 1986 through September 21, 1986 at the 
 
         rate of two hundred seventy-six and 38/100 dollars ($276.38) per 
 
         week in the total amount of one thousand three hundred two and 
 
         86/100 dollars ($1,302.86).
 
         
 
              That defendant pay this amount in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant pay the costs of this proceeding pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 6th day of April, 1988.
 
                                                
 
                                                         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         PO Box 1066
 
         Keokuk, Iowa  52632-1066
 
         
 
         Mr. John E. Kultala
 
         Attorney at Law
 
         511 Blondeau Street
 
         Keokuk, Iowa  52632
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.20; 1802; 1803;
 
                                            2905;
 
                                            Filed April 6, 1988
 
                                            WALTER R. McMANUS, JR.
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN L. BOATMAN,
 
         
 
              Claimant,                             File No. 772267
 
         
 
         vs.                                         R E V I E W -
 
         
 
         GRIFFIN WHEEL CO.,                        R E 0 P E N I N G
 
         
 
              Employer,                             D E C I S I 0 N
 
              Self-insured,
 
              Defendant.
 
         
 
         
 
         1402.20; 1802; 1803; 2905
 
         
 
              At the first hearing employer testified that a job for 
 
         claimant within his restrictions was waiting for him if he 
 
         reported for work the following morning at 7:00 a.m.  Claimant or 
 
         his counsel stated that claimant would be there.  Claimant did not 
 
         show up at work, but rather reported in to the emergency room at 
 
         4:00 a.m. with a recurrence/aggravation of his disc condition.  
 
         His physician took him off work for another month due to the 
 
         recurrence.  After that employer wanted a work capacity evaluation 
 
         before allowing claimant to return to work.  Claimant did not show 
 
         up for either work capacity evaluation scheduled by employer. 
 
         Claimant was a full-time student during the period after the first 
 
         hearing which he said consumed 18 hours a day.
 
         
 
              Held:  Claimant was allowed additional healing period 
 
         benefits for the one month after the hearing when the physician 
 
         took him off work.  Claimant submitted no evidence of a change of 
 
         physical or medical condition by way of impairment, diagnosis, 
 
         prognosis, restrictions or limitations.  On the contrary, one 
 
         physician lowered his impairment rating.  Employer's requirement 
 
         of a work capacity evaluation after claimant's recurrence of his 
 
         disc condition did not constitute a nonmedical or economic change 
 
         of condition but was considered reasonable because of the 
 
         recurrence and a number of other reasons.