BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KURT ZANDERS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                          File No. 772273
 
         CITY OF MALVERN,
 
                                         A P P E A L
 
               Employer,
 
                                         D E C I S I 0 N
 
          and
 
          
 
          EMPLOYERS MUTUAL COMPANIES,
 
          
 
               Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an 85.27 benefits decision denying 
 
         certain medical benefits as the result of an alleged injury on 
 
         August 10, 1984.  The record on appeal consists of the transcript 
 
         of the arbitration proceeding; claimant's exhibits 1 through 5; 
 
         and defendants' exhibits A through J. Both parties filed briefs 
 
         on appeal.
 
         
 
                                      ISSUE
 
         
 
              Claimant states the following issue on appeal: "Is claimant 
 
         C-5 quadriplegic entitled to a van as an 85.27 benefit to allow 
 
         him to transport and use his electric wheelchair which has been 
 
         prescribed by his doctors?"
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The 85.27 benefits decision adequately and accurately 
 
         reflects the pertinent evidence and it will not be set forth 
 
         herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the 85.27 benefits decision are 
 
         appropriate to the issues and the evidence.
 
         
 
         
 
         
 
         ZANDERS v. CITY OF MALVERN
 
         Page 2
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                     ANALYSIS
 
         
 
              Claimant is a quadriplegic as a result of a work-related 
 
         injury.  Claimant has been provided with an electric wheelchair 
 
         by the employer.  The employer has paid for extensive remodeling 
 
         to claimant's home to accommodate his wheelchair.  The employer 
 
         has also paid for wheelchair modifications to claimant's van.
 
         
 
              Claimant seeks a determination that defendants are 
 
         responsible for the purchase price of the van under Iowa Code 
 
         section 85.27.  That section states, in relevant part:
 
         
 
              The employer ... shall furnish reasonable surgical, medical, 
 
              ... hospital services and supplies therefor and shall allow 
 
              reasonably necessary transportation expenses incurred for 
 
              such services.  The employer shall also furnish reasonable 
 
              and necessary crutches, artificial members and appliances 
 
              but shall not be required to furnish more than one set of 
 
              permanent prosthetic devices.
 
         
 
              Clearly, claimant's van is not a crutch, a prosthetic 
 
         device, or an artificial member.  If claimant is to prevail in 
 
         his assertion that the purchase price of the van is defendants' 
 
         responsibility, claimant must establish that the van constitutes 
 
         either a necessary transportation expense or an appliance under 
 
         section 85.27.
 
         
 
              Claimant asserts that he cannot be transported in a regular 
 
         automobile.  Claimant is unable to sit upright in a vehicle with 
 
         normal seat belts.  Claimant's bowel and bladder needs cannot be 
 
         met in a car.  Claimant also needs to shift his weight 
 
         frequently, and cannot do so while seated in a car seat.  With 
 
         the specially equipped van, claimant is able to be transported in 
 
         his wheelchair, which eliminates these problems.  Claimant's 
 
         physician has stated that claimant's mobility is conducive to 
 
         avoiding or minimizing depression.  However, claimant has not 
 
         been diagnosed as suffering from depression.
 
         
 
              Defendants argue that claimant's use of the van is mostly 
 
         for personal matters.  Claimant uses the van for visits to his 
 
         doctor and to the hospital, but also uses the van for 
 
         transportation to events connected with his hobby and other 
 
         personal matters.
 
         
 
              Defendants are obligated to provide claimant with reasonable 
 
         and necessary transportation to and from medical care under 
 
         section 95.27. Defendants could comply with this obligation in 
 
         several ways.  Defendants could contract with a private 
 
         transportation service, such as an ambulance, to pick claimant up 
 
         and transport him to medical services.  Defendants could purchase 
 
         a
 
         
 
         
 
         
 
         ZANDERS v. CITY OF MALVERN 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 3
 
         
 
         
 
         van in their own name and hire someone to transport claimant to 
 
         the doctor or hospital.  Defendants can also allow claimant to 
 
         use his own vehicle for transportation to the doctor or hospital, 
 
         with defendants obligated to reimburse him for reasonable and 
 
         necessary mileage costs.
 
         
 
              The fact that claimant's van is occasionally used for 
 
         transportation to medical services does not make the vehicle a 
 
         transportation expense under section 85.27. Defendants' provision 
 
         of vehicular modifications and the payment of mileage expenses 
 
         satisfies defendants, obligations to provide medical 
 
         transportation to claimant.
 
         
 
              Similarly, the fact that the van is used occasionally for 
 
         medical transportation does not indicate that the van is an 
 
         appliance.  A van does not replace a body function lost by the 
 
         injury, such as lost balance supplied by a walker, or lost 
 
         support supplied by a back brace.  A van provides vehicular 
 
         transportation, a non-physical function that both uninjured and 
 
         injured workers have the responsibility to provide themselves.  
 
         Claimant's van is not an appliance within the meaning of section 
 
         85.27.
 
         
 
              Section 85.27 contemplates the provision of reasonable 
 
         medical expenses.  That section does not obligate an employer to 
 
         restore an injured worker to his or her pre-accident personal 
 
         lifestyle.  Claimant's personal living expenses, including 
 
         transportation for nonmedical purposes, were his own obligation 
 
         before his injury, and section 85.27 does not change that.  To 
 
         the extent his injury has deprived him of income that formerly 
 
         was used to meet those expenses, that loss of earnings has 
 
         already been addressed by the award of permanent total disability 
 
         benefits.
 
         
 
              Claimant's assertion that mobility is necessary for his 
 
         mental state is also unpersuasive.  The law does not allow this 
 
         agency to order defendants to pay a particular item merely 
 
         because to do so may make the claimant feel better.  There are 
 
         many items that would arguably suit this purpose, such as 
 
         ordering defendants to provide a claimant with a sports car, a 
 
         boat, a vacation in a tropical locale or even an outright gift of 
 
         a large sum of money for claimant to spend at his own discretion.  
 
         Any of these items might relieve a claimant's depression.  Even 
 
         if these items were prescribed by a physician, that fact alone 
 
         does not make them proper medical expenses under section 85.27. 
 
         Similarly, a van is not a reasonable medical expenditure merely 
 
         because it may contribute in some manner to improving claimant's 
 
         mental state.
 
         
 
              Claimant is not entitled to reimbursement for the purchase 
 
         price of the van under section 85.27.  To the extent that Fisher
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         ZANDERS v. CITY OF MALVERN
 
         Page 4
 
         
 
         
 
         v. First Assembly of God Church, IV Iowa Industrial Commissioner 
 
         Report 119 (Decision of 85.27 benefits, May 18, 1984), holds 
 
         contrary to this opinion, that decision is incorrect and is 
 
         hereby overruled.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant sustained an injury which arose out of and in 
 
         the course of his employment as a lifeguard with defendant 
 
         employer on August 10, 1984.
 
         
 
              2. Claimant is a C-5 quadriplegic who has no use of his body 
 
         below his shoulders.
 
         
 
              3. Claimant uses a motorized wheelchair which he operates by 
 
         use of a mouth/chin control.
 
         
 
              4. Claimant's wheelchair, with him in it, weighs 
 
         approximately 500 pounds.
 
         
 
              5. The most convenient way to transport claimant in his 
 
         wheelchair is by use of the van but it is not the only mode of 
 
         transportation available.
 
         
 
              6. Although the use of the van provides convenience, the van 
 
         in and of itself is not medically necessary to treat claimant's 
 
         injuries.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Claimant has failed to establish the purchase of a van is a 
 
         medical expense under Iowa Code section 85.27 or is reasonably 
 
         necessary to treat a work-related injury.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That claimant take nothing further from these proceedings.
 
         
 
              That the costs of this proceeding are assessed against 
 
         defendants pursuant to Division of Industrial Services Rule 
 
         343-4.33 in the following amounts:
 
          
 
               Dr. Byron B. Oberst -                  $150.00
 
          
 
               Dr. Roger Leuck - expert fee                 150.00
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                 (pursuant to Iowa Code section 622.72)
 
         
 
         
 
         
 
         ZANDERS v. CITY OF MALVERN
 
         Page 5
 
         
 
         
 
         Blair and Associates - court reporters            79.00
 
         
 
         Twin City Reporter                           43.91
 
         
 
              Signed and filed this 22nd day of November, 1989.
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Scott H. Peters
 
         Attorney at Law
 
         P.O. Box 1078
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Philip J. Willson
 
         Attorney at Law
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         2501 - 2504
 
                                         Filed November 22, 1989
 
                                         DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         KURT ZANDERS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                          File No. 772273
 
         CITY OF MALVERN,
 
                                         A P P E A L
 
         Employer,
 
                                          D E C I S I 0 N
 
         and
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2501 - 2504
 
         
 
              Claimant, a permanently and totally disabled C-5 
 
         quadriplegic, sought an order compelling defendants to pay for 
 
         the purchase price of a van he used for transporting him in his 
 
         wheelchair.  Defendants had already paid for the wheelchair, 
 
         extensive modifications to claimant's home, and modifications to 
 
         his van to accommodate the wheelchair.  Claimant argued that the 
 
         van itself was a proper section 85.27 medical expense, and 
 
         offered evidence that he could not be conveniently transported in 
 
         a car and that the mobility offered by the van was conducive to 
 
         avoiding depression.
 
         
 
              The van was used for transportation to medical services a 
 
         fraction of the time, but was held that defendants had satisfied 
 
         their obligation to provide transportation to medical services by 
 
         modifying the van and paying mileage expenses.
 
         
 
              It was also held that a van did not replace a lost physical 
 
         function, and therefore was not an appliance.  Claimant was 
 
         obligated to provide his own vehicular transportation before the 
 
         accident and this obligation did not shift to defendants as a 
 
         result of the accident.  Defendants are not obligated to restore 
 
         claimant to his prior lifestyle.  To the extent that claimant's 
 
         ability to purchase the van on his own is affected by his loss of
 
         
 
         
 
         
 
         earnings, that loss is already addressed by the award of 
 
         permanent total disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's contention that the van was a reasonable and 
 
         necessary medical expense because it helped him avoid depression 
 
         was also unpersuasive.  Items such as a boat or a trip to an 
 
         exotic locale might help claimant avoid depression also, but such 
 
         items are not medical in nature and are not reasonable medical 
 
         expenses.
 
         
 
              Fisher v. First Assembly of God Church, IV Iowa Industrial 
 
         Commissioner Report 119 (Decision of 85.27 benefits, May 18, 
 
         1984), to the extent it holds contrary to this decision, is 
 
         overruled.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KURT ZANDERS,
 
         
 
              Claimant,                             File No. 772273
 
         
 
         vs.                                        D E C I S I 0 N
 
         
 
         CITY OF MALVERN,                                0 N
 
         
 
               Employer,                                85.27
 
         
 
         and                                        B E N E F I T S
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding brought by Kurt Zanders, claimant, 
 
         against City of Malvern, employer, and Employers Mutual 
 
         Companies, insurance carrier, to recover benefits under the Iowa 
 
         Workers' Compensation Act, specifically under Iowa Code section 
 
         85.27 as a result of an injury sustained on August 10, 1984.  
 
         This matter came on for hearing before the undersigned deputy 
 
         industrial commissioner April 18, 1988 and was considered fully 
 
         submitted at the close of the hearing.  The record in this case 
 
         consists of the closed testimony of claimant and Danny Zanders, 
 
         his father; claimant's exhibits 1 through 5, inclusive, and 
 
         defendants' exhibits A through J, inclusive.
 
         
 
                                      ISSUES
 
         
 
              The sole issue in this matter is claimant's entitlement to 
 
         benefits under Iowa Code section 85.27.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant, age 24, a C-5 quadriplegic, was injured August 10, 
 
         1984 in a swimming pool accident arising out of and in the course 
 
         of his employment as a lifeguard for defendant employer.  
 
         Claimant explained he has use of his body down to his shoulders 
 
         and a "shoulder shrug is about the lowest" with use of his head 
 
         and neck.  Claimant does not have any use of his limbs and 
 
         utilizes an electric wheelchair which he controls using his mouth 
 
         or chin.  Claimant lives in Omaha, Nebraska with his parents who 
 
         attend to the majority of his needs in a home modified for 
 
         accessibility.  Defendants have provided for the costs of home 
 
         modification.  Claimant estimated his motorized wheelchair, with 
 
         him in it, weighs approximately 500 pounds.  Claimant testified 
 
         that there is no other way to transport his motorized wheelchair 
 
         other than an especially equipped van without contracting with 
 
         someone else to "take it somewhere" and that he cannot move 
 
         around in a normal car or station wagon without a number of 
 
         people to lift him and the chair in and out.  Claimant explained 
 

 
         that since his loss of independence the motorized wheelchair "has 
 
         been a life saver" and that the mobility provided by the chair 
 
         and the van give him back "a little bit of his previous life."
 
         
 
              Claimant explained that while he does not and cannot 
 
         operate the van itself, he uses it and has used it for shopping 
 
         trips, to go to family functions, antique shows, house hunting 
 
         with his parents, and fossil shows among other things.  
 
         Claimant testified the van will be used for transportation to 
 
         and from school when he resumes his study of geology at the 
 
         University of Nebraska at Omaha.  Claimant also uses the van to 
 
         attend medical appointments including two trips to the Craig 
 
         Hospital in Englewood, Colorado, and one trip to his family 
 
         doctor in Omaha for general checkup.
 
         
 
              Claimant testified he has not ridden in any vehicle other 
 
         than the van since his discharge from Craig Hospital.  He 
 
         explained he is not able to get into and out of the van without 
 
         assistance as he needs someone to open the door, let the 
 
         motorized lift down, hoist the lift back up, buckle down the 
 
         wheelchair, close the van doors and drive.
 
         
 
              Danny Zanders testified the van (pictured in claimant's 
 
         Exhibit 5) was ordered in December 1984 and delivered in 
 
         February 1985 shortly after claimant was discharged from Craig 
 
         Hospital.  Mr. Zanders opined claimant cannot be transported 
 
         without using the van and that a regular automobile would be 
 
         unsuitable since it would not allow claimant to do "weight 
 
         shifts" since claimant cannot stay in the wheelchair while a 
 
         normal vehicle is moving.  He explained claimant cannot be 
 
         restrained by use of a regular seat belt in a regular car and 
 
         that it is necessary to have the capability to put claimant in 
 
         a prone position should something happen with regard to his 
 
         catheter or bowel functions.  Mr. Zanders also testified to the 
 

 
         
 
         
 
         
 
         ZANDERS V. CITY OF MALVERN
 
         Page   3
 
         
 
         
 
         convenience of the van which, because an individual can move 
 
         around in it, negates the necessity to make additional stops to 
 
         "drain bags."
 
         
 
              Byron B. Oberst, M.D., who practices in the medical 
 
         specialties of pediatrics, adolescence, and college medicine, 
 
         explained he first saw claimant shortly after his swimming pool 
 
         accident and was involved with claimant's care and treatment up 
 
         through the time claimant went to Craig Hospital.
 
         
 
              Asked what an electric wheelchair does for a quadriplegic 
 
         to help with such potential problems as depression, 
 
         discouragement, loss of body image and loss of lifestyle, Dr. 
 
         Oberst stated:
 
         
 
              Q.  Now, what does an electric wheelchair do for such a 
 
              person to help with the problems that you've just 
 
              described?
 
         
 
              A.  Well, much.  Gives him independence in the first 
 
              place so he can go from Point A to Point B without 
 
              having anybody pushing him there.  One of the things 
 
              that we know in today's world in working in the 
 
              computer world is that we're trying to develop 
 
              methodologies and approaches to help those folks have a 
 
              much better quality of life and be much more 
 
              independent and to be tied to a wheelchair, tied to a 
 
              bed, for anything that you need to do is -- excuse me 
 
              -- a hell of a way to have to live no matter how you 
 
              look at it.
 
         
 
              Q.  All right.  And is this the mobility part of the 
 
              treatment and rehabilitation in a patient such as this 
 
              whatever --
 
         
 
              A.  It isn't treatment but it's rehabilitation.  
 
              There's a difference between two -- the two.
 
         
 
              Q.  All right.
 
         
 
              A.  Treatment he no longer can have if you want to look 
 
              at treatment as far as the medication or surgical 
 
              procedure or something else to restore him to as near 
 
              normal a life as you possibly can.
 
         
 
                 Rehabilitation and the ability to be able to address 
 
              -- as we do in any therapeutic program -is to have the 
 
              patient be able to be as capable of being able to 
 
              handle their own you might say living skills, it you 
 
              will, as well as their mental attitudes as possible.
 
         
 

 
         
 
         
 
         
 
         ZANDERS V. CITY OF MALVERN
 
         Page   4
 
         
 
         
 
              Q.  Now, if one were to say that the psychological 
 
              problems -- the depression problems, the personal 
 
              self-worth things that you mentioned could be assisted 
 
              by the doctor, could that not be described as part of 
 
              the medical treatment for that patient?
 
         
 
                 ....
 
         
 
              .... THE WITNESS:  No. That would be I would consider 
 
              part of the rehabilitation program.  If you look at 
 
              therapy as the total global type of thing, yes.  If 
 
              you're talking about it as a specific modality to 
 
              change something in his physical makeup, no.
 
         
 
         (Cl. Ex. 1, pp. 9-10)
 
         
 
              On the issue of the van, Dr. Oberst responded:
 
         
 
              Q.  Practically speaking is there any way to transport 
 
              that electric chair except by an equipped van?
 
         
 
              A.  I don't know how you could because you can't pick 
 
              them up and carry them.  They're too cumbersome.
 
         
 
              Q.  In that sense then do you have an opinion as to 
 
              whether or not the van to transport that chair would 
 
              also be medically necessary in Kurt Zanders' therapy 
 
              and rehabilitation?
 
         
 
                 ....
 
         
 
              THE WITNESS:  Very much so.  Plus the fact that in 
 
              today's therapeutic world the way vans can be equipped 
 
              for the handicapped individual give him a much better 
 
              way to handle his quality of life and his ability to 
 
              become independent and self-sufficient.
 
         
 
         (Cl. Ex. 1, p. 11)
 
         
 
              Roger Leuck, M.D., who specializes in the treatment of 
 
         spinal cord injuries, testified he was claimant's attending 
 
         physician during claimant's hospitalization at Craig Hospital 
 
         from September 13, 1984 through February 8, 1985.  Dr. Leuck 
 
         opined that a van equipped with wheelchair accessories would be 
 
         necessary to provide claimant mobility with his wheelchair and 
 
         explained the importance of mobility in the treatment and 
 
         rehabilitation of a quadriplegic by stating:
 
         
 
              A.  Well, mobility serves many purposes.  I think from 
 
              just a health standpoint alone, people that do not get 
 
              up and around or tend to stay in bed have and 
 
              accumulate more medical problems.  So I think it's 
 
              important that they get mobilized or get out of bed as 
 
              much as possible.  That prevents further medical 
 
              potential problems such as skin sores.  At the same 
 
              time, it keeps people from becoming weaker or 
 
              deconditioned so that they cannot tolerate the upright 
 
              conditions. so I think it's very important from a 
 
              mobility standpoint, one, that they get out of bed, are 
 

 
         
 
         
 
         
 
         ZANDERS V. CITY OF MALVERN
 
         Page   5
 
         
 
         
 
              able to get out of bed.
 
         
 
                 And secondly, they have to be able to get out of 
 
              their environment to seek health care at times and 
 
              otherwise to get about their business of going out and 
 
              living.
 
         
 
         (Cl.  Ex. 2, p. 6)
 
         
 
              Dr. Leuck issued a patient equipment prescription for "van 
 
         mods for 1985 Ford E150 Club Wagon" which provided for a fully 
 
         automatic lift, lowered floor, smooth floor, manual wheelchair 
 
         lock-down, safety belt system, insulation package, air 
 
         conditioning, auxiliary heating and air conditioning, and fire 
 
         extinguisher.  Defendants have paid approximately $5,000 for 
 
         modifications to the van to accommodate claimant's wheelchair.  
 
         What remains in dispute is the actual purchase price of the van.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The crux of the issue presented for resolution is, simply 
 
         put, whether defendants are liable for the purchase of the van 
 
         used to transport claimant in his motorized wheelchair.  
 
         Defendants have paid for modifications to the van.  Claimant 
 
         asserts that the purchase price of the van itself is a medical 
 
         expenses under Iowa Code section 85.27.  Claimant's only avenue 
 
         for recovery is to establish the van is an expense under section 
 
         85.27.  Iowa Code section 85.27 provides:
 
         
 
                 The employer, for all injuries compensable under 
 
              this chapter or chapter 85A, shall furnish reasonable 
 
              surgical, medical, dental, osteopathic, chiropractic, 
 
              podiatric, physical rehabilitation, nursing, ambulance 
 
              and hospital services and supplies therefor and shall 
 
              allow reasonably necessary transportation expenses 
 
              incurred for such services.  The employer shall also 
 
              furnish reasonable and necessary crutches, artificial 
 
              members and appliances but shall not be required to 
 
              furnish more than one set of permanent prosthetic 
 
              devices.
 
         
 
              This section of the law has been interpreted by the 
 
         industrial commissioner as requiring the employer to furnish 
 
         those things which are reasonably necessary to treat the injured 
 
         employee's work-related injury.  Therefore, the issue is again 
 
         reduced to a determination of whether or not the van is 
 
         reasonably necessary to treat claimant's work-related injury.  
 
         With all deference to the claimant, his condition, and the 
 
         special needs which a quadriplegic may require, it cannot be 
 
         concluded that the van is a medical expense necessary to treat 
 
         the injury.
 
         
 
              Initially, it is noted that while there is a physician's 
 
         prescription for modification, there is no medical prescription 
 
         for the van itself.  However, the mere existence of a 
 
         prescription does not necessitate a conclusion that that which is 
 
         prescribed is a medical expense.  Doctors Oberst and Leuck 
 
         testified as to the need for the mobility of the electric 
 

 
         
 
         
 
         
 
         ZANDERS V. CITY OF MALVERN
 
         Page   6
 
         
 
         
 
         wheelchair and claimant has been provides with the same.  They 
 
         both opined the van is the most practical way of transporting 
 
         claimant in that chair.  However, it is clearly not the only mode 
 
         of transportation available.  Claimant has shown that other modes 
 
         of transportation may be inconvenient but not that they are not 
 
         available.
 
         
 
              Doctors Oberst and Leuck refer to potential problems with 
 
         depression, discouragement, anxiety, and loss of body image.  No 
 
         evidence is contained in the record to show claimant is currently 
 
         suffering from depression or anxiety.  To order defendants to pay 
 
         for a van based on claimant's potential for developing such 
 
         problems would be to require the undersigned to base a decision 
 
         on mere speculation which is clearly contrary to precedent.  The 
 
         recent case of Umphress v. Armstrong Rubber Co., Appeal Decision 
 
         filed August 27, 1987, holds that it is not proper to base a 
 
         decision on mere speculation as to what may occur to claimant in 
 
         the future and it is the condition of the claimant as established 
 
         at the time of hearing that must be considered.  Claimant argues 
 
         that purpose of the van in the quadriplegic case is to allow for 
 
         the use of the electric wheelchair which gives claimant some 
 
         mobility, some link to normal life, some sense of normalcy and 
 
         therefore promotes both his mental and physical well-being by 
 
         avoiding depression, anxiety, and by reducing the unavoidable 
 
         loss of self-esteem associated with the loss of his normal life.  
 
         As indicated above, the van or lack thereof, does not prohibit 
 
         claimant from the use of his electric wheelchair.  Further, many 
 
         other things come to mind which may help claimant avoid 
 
         depression, anxiety and loss of self-esteem which would not be a 
 
         medical expense under Iowa Code section 85.27.  It is for these 
 
         reasons that the undersigned is not convinced by claimant's 
 
         reliance on Fisher v. First Assembly of God Church, Decision on 
 
         85.27 Benefits, the number 447773.  Fisher is particular to the 
 
         facts of the case and cannot be extended to the facts of this 
 
         case.
 
         
 
              Section 85.27 also speaks of "physical rehabilitationO 
 
         expenses.  As the van cannot be considered a medical expense 
 
         because it does not treat claimant's injuries, it likewise does 
 
         not physically rehabilitate claimant from the effects of his 
 
         injuries.  Claimant may use the van for the purposes of 
 
         continuing his education and thus for the purpose of vocational 
 
         rehabilitation but the defendants' liability is limited for 
 
         vocational rehabilitation under Iowa Code section 85.70.  Dr. 
 
         Oberst agrees the van is not a part of claimant's medical 
 
         treatment and Dr. Leuck speaks in terms of avoiding potential 
 
         problems.
 
         
 
               Iowa Code section 85.27 requires defendants to furnish all 
 
         reasonable services necessary to treat a work-related injury.  
 
         Nowhere within in the law is it mandated that employers return 
 
         claimant to the lifestyle led before the injury.  Testimony 
 
         establishes claimant's use of the van is principally for 
 
         personal, albeit legitimate, reasons.  Only twice has the 
 
         claimant returned for medical checkups and once has he returned 
 
         to his family doctor.  All remaining trips taken were for 
 
         claimant's personal interest and satisfaction. (Defendants' 
 
         responsibility for transportation expenses is not under 
 
         consideration here.)
 

 
         
 
         
 
         
 
         ZANDERS V. CITY OF MALVERN
 
         Page   7
 
         
 
         
 
         
 
              One of the purposes of the Workers' Compensation Act is to 
 
         ensure a determined liability for employer and although the 
 
         statute is to be construed liberally, care must be taken not to 
 
         legislate under the guise of a liberal statutory construction.  
 
         If an expenditure is undertaken in the name of Iowa Code section 
 
         85.27 which is not for the treatment of the compensable injury, 
 
         it cannot under Iowa law be reimbursed.  Claimant has not 
 
         established that the van is reasonable and necessary to relieve 
 
         him of the effects of his injury and therefore that the actual 
 
         van is necessary to treat his work-related injury.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following facts are found:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment as a lifeguard with defendant 
 
         employer on August 10, 1984.
 
         
 
              2.  Claimant is a C-5 paraplegic who has no use of his body 
 
         below his shoulders.
 
         
 
              3.  Claimant uses a motorized wheelchair which he operates 
 
         by use of a mouth/chin control.
 
         
 
              4.  Claimant's wheelchair, with him in it,weighs 
 
         approximately 500 pounds.
 
         
 
              5.  The most convenient way to transport claimant in his 
 
         wheelchair is by use of the van but it is not the only mode of 
 
         transportation available.
 
         
 
              6.  Although the use of the van provides convenience, the 
 
         van in and of itself is not medically necessary to treat 
 
         claimant's injuries.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made.
 
         
 
              Claimant has failed to establish the purchase of a van is a 
 
         medical expense under Iowa Code section 85.27 or is reasonably 
 
         necessary to treat a work-related injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant take nothing further from these proceedings.
 
         
 
              That the costs of this proceeding are assessed against 
 
         defendants pursuant to Division of Industrial Services Rule 
 
         343-4.33 in the following amounts:
 
         
 
              Dr. Byron B. Oberst - expert fee         $150.00
 
         
 

 
         
 
         
 
         
 
         ZANDERS V. CITY OF MALVERN
 
         Page   8
 
         
 
         
 
              Dr. Roger Leuck - expert fee              150.00
 
                   (pursuant to Iowa Codes section 622.72)
 
         
 
              Blair and Associates - court reporters     79.00
 
         
 
              Twin City Reporter                         43.91
 
         
 
         
 
              Signed and filed this 26th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       DEBORAH A. DUBIK
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Scott H. Peters
 
         Attorney at Law
 
         233 Pearl Street
 
         P.O. Box 1078
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Philip J. Willson
 

 
         
 
         
 
         
 
         ZANDERS V. CITY OF MALVERN
 
         Page   9
 
         
 
         
 
         Attorney at Law
 
         370 Midlands Mall
 
         P.O. Box 249
 
         Council Bluffs, Iowa 51502
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  2500
 
                                                  Filed May 26, 1988
 
                                                  Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KURT ZANDERS,
 
         
 
              Claimant,                          File  No. 772273
 
         
 
         vs.                                     D E C I S I 0 N
 
         
 
         CITY OF MALVERN                               0 N
 
         
 
              Employer,                               85.27
 
         
 
         and                                     B E N E F I T S
 
         
 
         EMPLOYERS MUTUAL COMPANIES,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         2500
 
         
 
              Claimant, a C-5 quadriplegic, sought to be reimbursed for 
 
         the purchase price of a van which he asserted was a medical 
 
         expense under 85.27.  The van was found not reasonably necessary 
 
         to treat claimant's injuries and therefore claimant's request was 
 
         denied.
 
 
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BERNARD C. HUGHES,
 
         
 
              Claimant,                              File No. 772646
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         EATON CORPORATION,                          D E C I S I O N
 
         
 
              Employer,                                 F I L E D
 
              Self-Insured,
 
              Defendant.                               FEB 14 1989
 
         
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
         
 
                                        
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Bernard C. 
 
         Hughes, claimant, against Eaton Corporation, self-insured 
 
         employer, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of a personal injury sustained on 
 
         August 14, 1984 which arose out of and in the course of his 
 
         employment.  This matter came on for hearing before the 
 
         undersigned deputy industrial commissioner April 21, 1988.  The 
 
         record was considered fully submitted at the close of the 
 
         hearing.  The record in this matter consists of the testimony of 
 
         claimant, Karen Hughes, his wife, Alfred Marchesio, Dennis Gates, 
 
         Clark Williams; and joint exhibits 1 through 53, inclusive.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved April 21, 1988, the only issue presented for resolution 
 
         is the extent of claimant's entitlement to permanent partial 
 
         disability benefits for a stipulated disability to the body as a 
 
         whole.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of his employment on August 14, 1984 when, while lifting 
 
         bars to a wheel brator, he experienced pain in his low back. 
 
         Claimant recalled he finished out his shift that day, sought 
 
         medical attention the following morning and that he was initially 
 
         treated conservatively with rest and no lifting.  Claimant 
 
         testified the pain kept getting worse, that he was losing weight 
 
         and that he was eventually referred to an orthopedic surgeon. 
 
         Claimant testified that after seeing the original orthopedic 
 
         surgeon, defendant employer referred him to another orthopedist, 
 
         Dwight Burney, M.D., who recommended surgery which was performed 
 
         in September 1984.  Claimant recalled he returned to work on 
 
         light duty in early 1985 and remained on light duty until he was 
 
         laid off in May 1985 for economic reasons unrelated to his 
 
         injury. Claimant' testified that while on layoff he sought 
 
         employment and was eventually hired for a short period of time by 
 
         Kenny Bruce to do repair helper work which did not involve any 
 
         heavy labor and which paid between $4.00 and $4.50 per hour.  
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Claimant also recalled that during this period of time he sold 
 
         Christmas trees for about the same wage.  Claimant offered he 
 
         returned to work with defendant employer in January 1987 at a 
 
         position within his medical restrictions and at a wage of $9.00 
 
         per hour.  Claimant described his current position as a drill 
 
         press operator for which he was trained by defendant.  Claimant 
 
         expressed a satisfaction with his employment and a desire to 
 
         remain in his employment with defendant.  Claimant testified he 
 
         is generally able to perform all the responsibilities of his job 
 
         although at times he does get sore while at and after work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant testified he is a high school graduate but 
 
         described his reading ability as "very bad" and his writing 
 
         ability as "no good."  Claimant stated he "faked it" in school, 
 
         that school was not easy for him and that when it was necessary 
 
         for him to complete job applications, he "made up an excuse" to 
 
         take them out to his wife who would fill them in for him.  
 
         Claimant stated that his limitations in these areas are of 
 
         concern to him.
 
         
 
              Karen Hughes, claimant's wife, testified that she reads to 
 
         claimant, that she has filled out applications for him and that 
 
         she does all the bill paying and budgeting for their household. 
 
         She stated that while claimant was on layoff from defendant 
 
         employer, he looked for work two or three times per week and 
 
         specifically looked for work which did not require reading or 
 
         writing and which would not bother his back as claimant worries 
 
         about reinjuring his back.
 
         
 
              Alfred Marchesio, who identified himself as a rehabilitation 
 
         consultant and president of Midlands Rehabilitation Consultants, 
 
         Inc., testified he was asked by claimant's counsel to evaluate 
 
         claimant's situation from a vocational rehabilitation standpoint 
 
         and that in doing so he reviewed claimant's medical records, the 
 
         deposition of Michael T. O'Neil, M.D., claimant's high school 
 
         records and a psychological evaluation done by B.L. Cogley, 
 
         M.S.W., Ph.D., at his request.  Mr. Marchesio summarized his 
 
         findings in a report dated February 5, 1987 which states, in 
 
         part:
 
         
 
                   Mr. Hughes is a 38-year-old male with a 15 percent 
 
              disability rating due to low back impairment that has 
 
              resulted in laminectomy at L5.  Fortunately, he has received 
 
              good result from that surgery performed by Dr. Burney.  Mr. 
 
              Hughes' work experience has been primarily as a laborer, 
 
              some 12 years in farming, and more recently as a production 
 
              worker beginning in January 1984 to the present including 
 
              convalescence for surgery and a sustained layoff from July 
 
              1985 until January 1987.  He is a high school graduate who 
 
              unfortunately completed that experience without the 
 
              accompanying academic skills would.be normally expected.  To 
 
              be sure Mr. Hughes is an individual of normal intelligence 
 
              but certainly has limitations in regards to his basic 
 
              academic skill, ranging from a 3.0 to a 9.9 grade level. 
 
              There is a substantial discrepancy between his verbal IQ of 
 
              79 and his performance IQ of 98 resulting in a full scale IQ 
 
              of 86.  This data clearly indicates to this consultant that 
 
              Mr. Hughes would not be a candidate for formal training and 
 
              has been fortunate to work in occupations that primarily 
 
              have capitalized on a strong suit of performance, or 
 
              learning activities by demonstration and application.
 
         
 
                   Mr. Hughes has been given an accommodation [sic] by his 
 
              employer which certainly is commendable.  It is this 
 
              consultant's experience that individuals who are reliable, 
 
              meet standards, basically are viewed as a person who gets 
 
              along well within the environment of the company, can and 
 
              does on occasion receive such accommodations [sic].  
 
              However, it is also my experience that individuals with a 
 
              similar limitation, both academically and physically, are 
 
              denied employment with new employers who are unwilling to 
 
              make concessions, accommodations [sic], etc., for employees 
 
              who are basically untested.  Thus we must view the long term 
 
              implications of Mr. Hughes' injury if he is forced to seek 
 
              employment with a new employer.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   Certainly the statewide and southwest Iowa economic 
 
              conditions during the past few years have not been strong 
 
              and have not produced growth and, at times as we have 
 
              already seen, jobs in fact have been lost.  Mr. Hughes 
 
              certainly is capable of performing tasks that would require 
 
              no more than 25 pounds of lifting and without a great deal 
 
              of repetitive bending, stooping, or twisting which would 
 
              have him performing activities such as handling, feeding 
 
              off-bearing, tending, manipulating, driving and operating.
 
         
 
                   Most light and sedentary jobs, however, are reserved 
 
              for more the technical, managerial and supervisory positions 
 
              within the national economy, areas that Mr. Hughes has not 
 
              gained appropriate experience and, based on testing, will 
 
              not have the necessary potential to acquire the skills.  
 
              Based on Mr. Hughes' physical impairment and academic 
 
              deficiencies, I would project that Mr. Hughes has access to 
 
              only 20-30 percent of the labor market in comparison to 
 
              able-bodied high school graduates.
 
         
 
                   There is no.dispute that the job currently held by Mr. 
 
              Hughes pays a competitive salary, and is within his physical 
 
              and intellectual limitations.  However, if forced to make a 
 
              transfer, a substantial loss of earnings would be expected 
 
              with no guarantees that a new employer would be willing to 
 
              place him in a lighter category of work or make job 
 
              accommodations [sic] which would allow Mr. Hughes to 
 
              function within his limitations.  Based on the Department of 
 
              Labor statistics, we can conclude that he has lost access to 
 
              40 percent of the job market alone which includes all 
 
              occupations classified as medium, heavy and very heavy. 
 
              Furthermore, the light and sedentary occupations are also 
 
              restricted as he does not have supervisory, managerial or 
 
              technical skills.
 
         
 
                   The injury sustained by Mr. Hughes is permanent and 
 
              will have long-range implications in his employment 
 
              prospects for the rest of his working years.  In all 
 
              probability he is in a optimal situation at the present time 
 
              but which does not include a guarantee of consistent nor 
 
              permanent employment. His ability to find similar work at a 
 
              similar salary is drastically reduced given the local and 
 
              regional economic conditions.  Finding alternate employment 
 
              would be quite difficult based on his academic and physical 
 
              limitations.
 
         
 
         (Joint Exhibit 43, pages 7-8)
 
         
 
              Mr. Marchesio did acknowledge on cross-examination that even 
 
         without his injury claimant would have had difficulty finding 
 
         other employment and particularly employment which would pay as 
 
         well as the job he currently holds.
 
         
 
              Dennis Gates, who identified himself as the human resources 
 
         or personnel manager for defendant employer, testified claimant 
 
         was hired January 30, 1984 as a part-time temporary employee, 
 
         furnace operator, and worked up until the time of his injury in 
 
         August 1984.  Mr. Gates explained that employees who work one 
 
         year become a "regular employee" with seniority rights and that 
 
         when claimant returned to work February 1, 1985 following his 
 
         recovery from his injury claimant was classified as a regular 
 
         employee even though he had not worked that entire year.  Mr. 
 
         Gates stated that upon claimant's return to work claimant was 
 
         assigned to the general factory and that he worked at various 
 
         light duty jobs throughout the plant.  Mr. Gates testified 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         claimant remained in the general factory position until a 
 
         reduction in force occurred in May 1985, that claimant was 
 
         recalled to work January 1987 based on his seniority, that 
 
         claimant was placed in a drill press operator position, given 
 
         "hands on training" in order to perform the job properly and that 
 
         claimant remains in that position.  Mr. Gates offered he is not 
 
         aware of any problems claimant might have with his job since he 
 
         has not been advised of any by claimant's supervisor as would be 
 
         the company policy, that claimant has had no complaints regarding 
 
         his back and that claimant has not missed any work on account of 
 
         his injury.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Mr. Gates explained there are 494 employees at the Eaton 
 
         plant, that 109 have less seniority than claimant, that 
 
         claimant's chances of getting laid off are "a lot less now" and 
 
         his chances of being recalled if laid off "greater," that 
 
         claimant's current wages are $9.68 per hour with a yearly salary 
 
         of $20,134.40 without overtime and that claimant has the 
 
         opportunity to bid into better paying jobs than that which he 
 
         currently holds.  Mr. Gates opined there is no reason to believe 
 
         claimant does not have a bright future with the company in light 
 
         of claimant's good attendance, that he is an excellent worker who 
 
         gets the work out and because he does not complain.  Mr. Gates 
 
         testified the company has a tuition reimbursement program which 
 
         claimant is eligible to utilize to improve his reading and 
 
         writing skills.
 
         
 
              Clark Williams, who identified himself as a rehabilitation 
 
         consultant with Management Consulting and Rehabilitation 
 
         Services, Inc., testified he conducted a vocational assessment of 
 
         claimant at the request of defendant's counsel.  Mr. Williams 
 
         summarized his conclusions in a report dated June 22, 1987 which 
 
         states, in part:
 
         
 
         
 
                   1.  Mr. Hughes impressed this consultant as an 
 
              individual who is eager to work.  He feels he has a good 
 
              record with Eaton and has exhibited longevity in this 
 
              employment.  Eaton management informed this consultant that 
 
              Mr. Hughes' seniority is such that he would be able to bid 
 
              or maintain positions that would be within his restrictions; 
 
              that Mr. Hughes could, if he chose, be employed by other 
 
              Eaton plants, with his experience with the company.
 
         
 
                   2.  It is this consultant's opinion that Mr. Hughes' 
 
              recent employment as a drill press operator is, in fact, a 
 
              learning process for him and could be considered a 
 
              transferrable [sic] skill for other areas of employment, 
 
              including a machine shop.  In the interview, Mr. Hughes 
 
              stated that he does not have any problems using the 
 
              measurement devices nor does he have problems with minor 
 
              mathematical calculations.  In the meeting with Mr. Hughes 
 
              in his home, it was my opinion that Mr. Hughes could attend 
 
              a vocational program at an area college dealing in machine 
 
              shop certification.  It was suggested that he could also 
 
              participate in a grading skills program designed to obtain a 
 
              GED, as well as any other skills required for vocational 
 
              certification.  Mr. Hughes stated that a previous consultant 
 
              had indicated that Mr. Hughes is not educatable [sic]; this 
 
              is not this consultant's opinion.  He appears to be capable 
 
              of learning and I do not agree with the interpretation of 
 
              the testing results.  In the Midlands Rehabilitation 
 
              Consultants, Inc. report, the presentation would lead the 
 
              reader to assume that Mr. Hughes' learning disability means 
 
              that he has no ability, nor does he have an aptitude for 
 
              life skills and/or could he be involved in learning 
 
              functions.  It is possible that the testing results have 
 
              been misinterpreted, i.e., "learning disability is to be 
 
              distinguished from lower intelligence.  There have been many 
 
              different definitions of a learning disability but, 
 
              basically, it is defined as an individual who is of average 
 
              intelligence, but who scores below expectations on academic 
 
              tests for unknown reasons or for reasons which are not 
 
              attributable to lack of exposure to education."  I believe 
 
              these comments are not to be interpreted that Mr. Hughes is 
 
              incapable of learning, but that he experiences difficulty in 
 
              trying to learn in a standard process.  Mr. Hughes should 
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              capitalize on his strengths and he should be offered 
 
              positive aspects and encouraged/motivated to invest in 
 
              himself.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   3.  It is also this consultant's opinion that Mr. 
 
              Hughes would be available for a greater, wider range of 
 
              jobs.  The skills he has acquired as a machinist would open 
 
              new doors of employment, not previously available to him.
 
         
 
                   4.  It is agreed that Mr. Hughes is indeed in an 
 
              optimal situation, as far as wages and benefits.  What needs 
 
              to be put into proper perspective is the effect of Mr. 
 
              Hughes being placed in a layoff situation and being 
 
              threatened by a diminished capacity to obtain the same type 
 
              of employment he has during prior layoff situations.  He 
 
              still has the capacity to assist in repair of motors and 
 
              replacing belts on grain bins; he can still sell Christmas 
 
              trees and produce from his garden.  Although he dislikes a 
 
              hog operation, he could still function adequately in this 
 
              area.
 
         
 
         (Jt. Ex. 44, pp. 5-7)
 
         
 
              Charles Berglund, who identified himself as a foreman for 
 
         defendant and claimant's current supervisor, testified that 
 
         claimant has not mentioned any medical problems to him, that 
 
         claimant has not complained to him about his back or about being 
 
         unable to perform any aspect of his job and that claimant is just 
 
         as competent and capable of doing the job he is on as the other 
 
         workers in the department.  Mr. Berglund acknowledged that 
 
         claimant is not a particularly talkative individual and is 
 
         generally a "real quiet fellow."
 
         
 
              Michael T. O'Neil, M.D., orthopedic surgeon, testified he 
 
         practiced with Dr. Dwight Burney who originally treated claimant 
 
         but that Dr. Burney subsequently passed away and that he reviewed 
 
         Dr. Burney's records and personally examined claimant on August 
 
         25, 1986 in order to testify in this matter.  Dr. O'Neil agreed 
 
         with Dr. Berglund's assessment that claimant, as a result of the 
 
         work injury, has a 15 percent permanent partial "disability" to 
 
         the body as a whole and, with regard to restrictions, stated:
 
         
 
              I think that Mr. Hughes or any individual who's had a 
 
              ruptured lumbar disc and who has had surgery should avoid 
 
              certain activities which we know will aggravate or cause a 
 
              recurrence of back and leg symptoms.  I believe that in Mr. 
 
              Hughes' case he should avoid strenuous activity, manual 
 
              labor which requires repeated stooping, lifting, bending.  I 
 
              believe that he should avoid single lifting of more than 50 
 
              pounds and repeated lifting of more than 25 pounds, 
 
              particularly if this lifting is associated with bending or 
 
              turning or twisting, such as he might do in an industrial 
 
              complex or manual labor where you're required to repeatedly 
 
              pick up objects, turn, bend, lift.
 
         
 
         (O'Neil Deposition; Jt. Ex. 49, pages 11-12)
 
         
 
              When questioned on Dr. Burney's office note of April 23, 
 
         1985 which read "I think he [claimant] may now return to full 
 
         work," Dr. O'Neil testified:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              I notice that Dr. Burney's note of April 23rd, he still 
 
              talks about Mr. Hughes having back pain and left low back 
 
              pain in the morning when he gets up or after sitting for 
 
              awhile.  So I think that even though he said he could return 
 
              to full work, he still talks about Mr. Hughes having back 
 
              pain.  And I don't think that Dr. Burney would let him go 
 
              back to heavy manual type work knowing full well that he 
 
              still had back pain.
 
         
 
              Q.  But as far as any conversations you would have with Dr. 
 
              Burney, you wouldn't have any personal knowledge of what he 
 
              thought about this patient, is that correct?
 
         
 
              A.  No.  No, I don't.
 
         
 
         (O'Neil Dep.; Jt. Ex. 49, p. 18)
 
         
 
              Claimant underwent an independent medical examination 
 
         January 27, 1987 conducted by Michael J. Morrison, M.D., of the 
 
         Orthopedic Clinic, P.C., in Omaha, Nebraska.  Dr. Morrison 
 
         concluded:
 
         
 
              In the office I've informed Mr. Hughes that from his 
 
              examination there's no evidence of any further active nerve 
 
              root irritation and that he has reached maximum medical 
 
              recovery.  His permanency from having a laminectomy done 
 
              with relief of his leg pain would be 10%, whole body and his 
 
              restrictions in the future should be restricted [sic] to no 
 
              frequent bending over to lift heavier than 40-50 pounds.
 
         
 
         (Jt. Ex. 42)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Iowa Code subsection 85.34(2)(u) provides:
 
         
 
                   In all cases of permanent partial disability other than 
 
              those hereinabove described or referred to in paragraphs "a" 
 
              through "t" hereof, the compensation shall be paid during 
 
              the number of weeks in relation to five hundred weeks as the 
 
              disability bears to the body of the injured employee as a 
 
              whole.
 
         
 
                   If it is determined that an injury has produced a 
 
              disability less than that specifically described in said 
 
              schedule, compensation shall be paid during the lesser 
 
              number of weeks of disability determined, as will not exceed 
 
              a total amount equal to the same percentage proportion of 
 
              said scheduled maximum compensation.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              As the parties have stipulated that claimant sustained an 
 
         injury which arose out of and in the course of his employment 
 
         which was the cause of both temporary and permanent disability, 
 
         the only question presented for resolution is the extent of 
 
         claimant's permanent partial disability.
 
         
 
              The undersigned does not question that claimant has 
 
         sustained a permanent functional impairment as a result of this 
 
         injury.  Dr. Burney concluded, with Dr. O'Neil acting in 
 
         agreement, that claimant has a 15 percent permanent partial 
 
         "disability."  Although the word disability is used as opposed to 
 
         the word impairment which is the domain of the expert witness, 
 
         the undersigned finds no evidence to conclude that the opinion of 
 
         these physicians was based on anything other than claimant's 
 
         functional abilities.  Dr., Morrison, who saw claimant one time 
 
         for the purposes of an evaluation, opined claimant's permanency 
 
         to be 10 percent to the body as a whole.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience.of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has submitted the following written contention:
 
         
 
              It is the contention of the Claimant that the degree of his 
 
              industrial disability exceeds the 15% previously paid by the 
 
              Defendants.  It should be noted that Claimant's educational 
 
              and learning background is such that he remains functionally 
 
              illiterate which severely handicaps him in any sort of a job 
 
              search.  While he has been employed recently at Eaton 
 
              Corporation and appears to be doing well with his job, in 
 
              the event that job is lost because of the restrictions 
 
              placed upon Claimant, his ability to obtain meaningful 
 
              employment is virtually nil.
 
         
 
         (Attachment to Prehearing Report)
 
         
 
              Defendant, on the other hand, argues:
 
         
 
              It is the contention of the Employer that the degree of 
 
              industrial disability is actually less than the 15.74% (78 
 
              weeks, 5 days) previously paid and that the Employer has 
 
              been overly generous in voluntarily paying Claimant that 
 
              amount. Claimant still retains the ability to perform those 
 
              jobs performed prior to his employment with Employer.  
 
              Moreover, the Claimant has a bright employment future with 
 
              the Employer; is educable and trainable; has already learned 
 
              job skills with the Employer which are transferrable [sic] 
 
              elsewhere; and has the capability and opportunity to acquire 
 
              additional job skills as an employee with Employer.
 
         
 
         (Attachment to Prehearing Report)
 
         
 
              It is clear to the undersigned that based upon claimant's 
 
         testimony claimant's greatest fears appear to be the possibility 
 
         of reinjury and job security.  He is, understandably so, 
 
         concerned over sustaining further injury to his back from which 
 
         he may not completely recover.  Claimant also stresses the 
 
         problems he believes he may have in securing employment should he 
 
         lose his current job with defendant.  The industrial commissioner 
 
         has said many times, most recently in Umphress v. Armstrong 
 
         Rubber Company (Appeal Decision filed August 27, 1987) that it is 
 
         error to consider what may happen to claimant in the future for 
 
         to do constitutes basing a decision on mere speculation.  ("It 
 
         appears...that the deputy based his decision in part on what may 
 
         occur to claimant in the future as opposed to his present 
 
         condition.  This is mere speculation.")  It is clearly claimant's 
 
         present status, or his status at the time of the hearing, that 
 
         must be evaluated.  At present, claimant is clearly satisfied 
 
         with his employment and intends to remain in this employment so 
 
         long as that employment is available.  Claimant's job appears to 
 
         be as secure as any job in he tenuous economic structure of 
 
         manufacturing life.  Claimant acknowledges that defendant has 
 
         expressed no dissatisfaction,with his job performance and has 
 
         conveyed no intention to terminate this employment relationship. 
 
         Indeed, Dennis Gates, defendant's human resources manager, has 
 
         testified that the chances of claimant getting laid off are now 
 
         less than what they were in the past and, if laid off, his 
 
         chances of being recalled are greater in light of the seniority 
 
         which he holds.  However, the fact that claimant may not ever 
 
         have to seek employment from other employers does not negate the 
 
         effect of the injury on claimant's earning capacity.  Harrison v. 
 
         Buesing Automotive, Inc. (Appeal Decision filed August 27, 1987).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Although claimant has not demonstrated any actual loss of 
 
         earnings as a result of his injury since the time he was on 
 
         layoff from defendant was as a result of economic conditions and 
 
         not as a result of his injury, it is not an individual's earnings 
 
         which are necessarily of major importance in the evaluation of 
 
         industrial disability.  Rather, the loss or reduction of an 
 
         individual's earning capacity must be reviewed.  Industrial 
 
         disability can be the same as, less than or greater than 
 
         functional impairment. Birmingham v. Firestone Tire & Rubber 
 
         Company, II Iowa Industrial Commissioner Report 39 (Appeal 
 
         Decision 1981).
 
         
 
              Claimant is currently 39 years old, 34 at the time of 
 
         injury, and has a high school education.  The value of his high 
 
         school education is, however, subject to question in light of 
 
         claimant's admitted limitations in reading and writing.  These 
 
         limitations are borne out by the psychological evaluation 
 
         conducted by B. L. Cogley at the request of Alfred Marchesio.  
 
         However, defendant candidly acknowledged that claimant was 
 
         eligible for its tuition reimbursement program and, since 
 
         claimant's concerns over his limitations in reading and writing 
 
         appear to the undersigned to be sincere, claimant should be 
 
         encouraged to pursue improvement in this area.  Claimant has 
 
         previous work experience as a farm laborer, a truck gardener and 
 
         a hog and cattle operation.  Claimant has been successful in 
 
         returning to employment which is well within the medical 
 
         restrictions imposed on him by both.Dr. O'Neil and Dr. Morrison.  
 
         Defendant has worked with claimant to accommodate any problems he 
 
         might have and to return him to employment within those 
 
         restrictions.  As the industrial commissioner stated in Gallardo 
 
         v. Firestone Tire Company (Appeal Decision filed October 21, 
 
         1987) an employer's repeated efforts to retain claimant as an 
 
         employee after his injury and to accommodate any medical 
 
         restrictions resulting therefrom reduces the amount of claimant's 
 
         industrial disability. Claimant appears to have had a scant 
 
         medical history prior to this injury.  His abilities to secure 
 
         employment are somewhat restricted in light of the length of time 
 
         he was unable to find work during the period of his layoff in May 
 
         1985 through January 1987.  This, however, cannot all be 
 
         attributed to his work injury as all of the experts who testified 
 
         at hearing agree the economic climate of southwestern Iowa is not 
 
         currently at its peak.  Notwithstanding, the undersigned does not 
 
         dispute that claimant's capacity to earn has been hampered as a 
 
         result of this injury.  Considering then all the elements of 
 
         industrial disability, it is found that claimant has sustained a 
 
         permanent partial disability of 15 percent for industrial 
 
         purposes.  Claimant, having already been paid an industrial 
 
         disability equal to 15.74 percent, shall take nothing further as 
 
         a result of these proceedings.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based on all of the evidence presented, the 
 
         following findings of fact are made:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on August 14, 1984.
 
         
 
              2.  As a result of his injury, claimant underwent surgery 
 
         and was unable to return to work until February 1, 1985.
 
              
 
              3.  Claimant was laid off from his employment in May 1985 
 
         due to economic reasons unrelated to his injury.
 
              
 
              4.  Claimant returned to work for defendant in January 1987 
 
         and defendant accommodated claimant's work restrictions.
 
         
 
              5.  Claimant has sustained a permanent partial impairment as 
 
         a result of the work injury.
 
         
 
              6.  Claimant's capacity to earn has been hampered as a 
 
         result of he injury.
 
         
 
              7.  Claimant is currently employed in a position with which 
 
         he is satisfied, from which he has no intention of leaving and 
 
         defendant has expressed no dissatisfaction with claimant's job 
 
         performance.
 
         
 
              8.  At the time of hearing, claimant had secure employment.
 
         
 
              9.  Claimant is currently 39 years old, 35 at the time of 
 
         his injury, with a high school education which is of tentative 
 
         value in light of limitations he has with regard to reading and 
 
         writing.
 
         
 
              10.  Claimant has made his way primarily as a laborer.
 
         
 
              11.  Claimant has work restrictions which prevent him from 
 
         engaging in some of the occupations for which he is fitted by 
 
         experience.
 
         
 
              12.  Claimant has established he sustained a permanent 
 
         partial disability of 15 percent for industrial purposes.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              Claimant has established that as a result of the injury of 
 
         August 14, 1984 which arose out of and in the course of his 
 
         employment, he has a 15 percent permanent partial disability for 
 
         industrial purposes.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              As defendant has previously paid claimant an amount of 
 
         benefits equal to an industrial disability of fifteen point seven 
 
         four percent (15.74%) and the undersigned has concluded claimant 
 
         has an industrial disability of 15 percent (15%), claimant shall 
 
         take nothing further as a result of this proceeding.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Costs of this action are assessed against defendant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 14th day of February, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Lyle W. Ditmars
 
         Attorney at Law
 
         233 Pearl St
 
         P.O. Box 1078
 
         Council Bluffs, IA  51502
 
         
 
         Mr. Allan Bjork
 
         Attorney at Law
 
         1300 Des Moines Bldg.
 
         Des Moines, IA  50309