3400
 
                           Filed November 21, 1990
 
                           MICHELLE A. McGOVERN
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HERBERT W. TRUITT,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 774753
 
            TROY ELEVATOR,                :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            HAWKEYE SECURITY INS. CO.,    :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            3400
 
            Defendants were allowed an $80,000.00 credit against a third 
 
            party claim which claimant previously settled.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            HERBERT W. TRUITT,              :
 
                                            :
 
                 Claimant,                  :
 
                                            :       File No. 774753
 
            vs.                             :
 
                                            :           O R D E R
 
            TROY ELEVATOR,                  :
 
                                            :            N U N C  
 
                 Employer,                  :
 
                                            :             P R O
 
            and                             :
 
                                            :            T U N C
 
            HAWKEYE SECURITY INS. CO.,      :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
                 The appeal decision filed November 10, 1992 is hereby 
 
            amended as follows:
 
            
 
                 Page 4, second full paragraph, the word "subrogation" 
 
            is stricken and "indemnification" is substituted therefore.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 N. Market St
 
            Oskaloosa, IA  52577
 
            
 
            Mr. Thomas Henderson
 
            Attorney at Law
 
            1300 First Interstate Bank Bldg
 
            Des Moines,  IA  50309
 
            
 
 
            
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            HERBERT W. TRUITT,              :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 774753
 
            TROY ELEVATOR,                  :
 
                                            :          R U L I N G
 
                 Employer,                  :
 
                                            :              O N
 
            and                             :
 
                                            :       R E H E A R I N G
 
            HAWKEYE SECURITY INS. CO.,      :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            Defendants have moved for a rehearing.  Claimant filed a 
 
            resistance to defendants' application for rehearing.  A 
 
            rehearing is appropriate.
 
            Defendants urge that they are entitled to an indemnification 
 
            lien under Iowa Code section 85.22(1) against future 
 
            payments of workers' compensation.  As set out in the appeal 
 
            decision, the case of Fisher v. Keller Industries, 485 
 
            N.W.2d 626 (Iowa 1992) prohibits an indemnification lien for 
 
            payments of workers' compensation that will be accrued in 
 
            the future.  However, defendants seek the right to withhold 
 
            payments as indemnification for payments already made at the 
 
            time of the third party settlement.  An interpretation of 
 
            the settlement agreement is necessary.
 
            Claimant received a settlement of his third party action in 
 
            the amount of $80,000.  At the time of the settlement, 
 
            claimant had been paid approximately $60,000 in workers' 
 
            compensation benefits.  Under an agreement between the 
 
            parties, claimant received $50,000 of the $80,000 
 
            settlement, and defendant workers' compensation insurance 
 
            carrier received $30,000.  A release form signed by an agent 
 
            of the insurance carrier recited that the insurance 
 
            carrier's right to indemnification for workers' compensation 
 
            payments was being released in consideration of the $30,000.
 
            Defendants now urge that their understanding of the 
 
            agreement was that defendants would continue to exercise an 
 
            indemnification lien for the other $30,000 that had been 
 
            paid by them to claimant in the form of workers' 
 
            compensation benefits.  Claimant states that the agreement 
 
            contemplated a waiver of any further right to 
 
            indemnification.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            The release form signed by the insurance carrier's 
 
            representative is unambiguous.  Although the release form 
 
            does not name claimant as a party released, it does state 
 
            that the carrier's right to indemnification for payments to 
 
            Herbert Truitt for an injury occurring on September 4, 1984 
 
            is released and discharged.  Claimant participated in the 
 
            settlement through his attorneys.   By signing the release, 
 
            the carrier has waived all further right to indemnification.  
 
            The carrier accepted $30,000 as a compromise settlement, as 
 
            stated in paragraph 3 of the release.  If the carrier wished 
 
            to reserve the right to further indemnification as part of 
 
            this settlement, it could have added the necessary language 
 
            so stating for claimant's acceptance or rejection.  Instead, 
 
            the carrier did "release, acquit and forever discharge...our 
 
            rights to subrogation and indemnification for workers' 
 
            compensation benefits and payments heretofore and hereafter 
 
            paid to or on behalf of Herbert Truitt..." (emphasis added).
 
            The document speaks for itself.  It waives all further right 
 
            of indemnification.  Defendants will not be allowed to 
 
            withhold any further amounts by way of indemnification.
 
            
 
                 Signed and filed this ____ day of December, 1992.
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Harold B. Heslinga
 
            Attorney at Law
 
            118 N. Market St
 
            Oskaloosa, IA  52577
 
            
 
            Mr. Thomas Henderson
 
            Attorney at Law
 
            1300 First Interstate Bank Bldg
 
            Des Moines,  IA  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              3400
 
                                              Filed December 11, 1992
 
                                              Byron K. Orton
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            HERBERT W. TRUITT,              :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 774753
 
            TROY ELEVATOR,                  :
 
                                            :          R U L I N G
 
                 Employer,                  :
 
                                            :              O N
 
            and                             :
 
                                            :       R E H E A R I N G
 
            HAWKEYE SECURITY INS. CO.,      :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
            3400
 
            On rehearing, held that defendants has waived their right to 
 
            further indemnification.  Claimant received an $80,000 third 
 
            party settlement.  Discussions between the parties resulted 
 
            in claimant retaining $50,000, and $30,000 paid to the 
 
            workers' compensation carrier in release of its 
 
            indemnification rights.  Testimony by an insurance agent 
 
            that he thought the company could still withhold payments 
 
            under section 85.22 for another $30,000 claimant had 
 
            received was rejected in favor of the plain unambiguous 
 
            language of the release.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BELINDA.LaFRANCE,
 
         
 
              Claimant,
 
                                                 File No. 775090
 
         VS.
 
                                                 M E D I C A L
 
         GLENWOOD STATE HOSPITAL SCHOOL,:
 
                                                 B E N E F I T S
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding for medical benefits brought by 
 
         Belinda LaFrance, claimant, against Glenwood State 
 
         Hospital-School, employer, and State of Iowa, insurance carrier, 
 
         defendant, for medical benefits only as a result of an injury 
 
         that occurred on September 6, 1984.  A hearing was held in 
 
         Council Bluffs, Iowa on June 21, 1989, and the case was fully 
 
         submitted at the close of the hearing.  Claimant was represented 
 
         by Jacob J. Peters.  Defendant was represented by Shirley A. 
 
         Steffe.  The record consists of the testimony of Belinda 
 
         LaFrance, claimant, Jeffrey LaFrance, claimant's husband, and 
 
         joint exhibits 1-16.  The deputy ordered a transcript of the 
 
         hearing.  Both attorneys submitted excellent briefs.
 
         
 
              The parties stipulated that an employer-employee 
 
         relationship existed between claimant and employer at the time of 
 
         the injury; that claimant sustained an injury on September 6, 
 
         1984, which arose out of and in the course of employment with 
 
         employer; and that an agreement for settlement under section 
 
         86.13 was approved on December 20, 1985, which left claimant with 
 
         rights to future medical benefits (Exhibit 1).
 
         
 
         
 
         
 
         LaFRANCE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         Page 2
 
         
 
         
 
                                      ISSUES
 
         
 
              The parries submitted the following issues for 
 
         determination at the time of the hearing.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Whether claimant is entitled to certain medical expenses 
 
         incurred subsequent to the settlement agreement.
 
         
 
              Whether claimant is entitled to an order directing 
 
         defendant to designate an authorized physician at claimant's 
 
         current place of residence.
 
         
 
                      PRELIMINARY MATTERS - OFFICIAL NOTICE
 
         
 
              Pursuant to the request of defendant's counsel, which 
 
         request was not objected to by claimant, official notice is taken 
 
         of the prior settlement documents in the industrial 
 
         commissioner's file, in particular the medical documents 
 
         considered at the time of the settlement. (Iowa Administrative 
 
         Procedure Act 17A.14(4))
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant was 20 years old at the time of the injury and 25 
 
         years old at the time of the hearing.  She testified that on 
 
         September 6, 1984, she was employed as a resident treatment 
 
         worker at the Glenwood State Hospital-School.  She  described  
 
         her injury as follows: "I had taken my girls to the lunchroom for 
 
         lunch and I was standing against a cement wall.  And one of the 
 
         other residents walked by and swung at me and hit me across the 
 
         face.  And I hit the brick wall, slid down the wall, and passed 
 
         out for just a few minutes."  (Transcript page 12)   As a result 
 
         of this incident, claimant testified: "I had headaches on a 
 
         regular basis.  I had a sore neck.  I couldn't hardly move my 
 
         neck.  I had trouble between my shoulder blades.  I still have 
 
         dizzy spells.  I had some numbness in my arms on occasion."  (Tr. 
 
         p. 13)
 
         
 
              Claimant initially saw F. M. Gawecki, M.D., a female 
 
         specialist, and he referred claimant to Jan J. Golnick, M.D., a 
 
         neurologist. (Settlement Exhibit pp. 1 & 2)  Claimant treated 
 
         with Dr. Golnick from September 21, 1984 until October 16, 1985, 
 
         for headaches, neck pain, shoulder pain and upper thoracic pain. 
 
         (Sett. Ex. 2-14)
 
         
 
              A settlement was approved on December 20, 1985.  Claimant 
 
         was paid-healing period benefits from September 6, 1984 through 
 
         January 15, 1985.  It was agreed that claimant sustained a 15 
 
         percent industrial disability and was entitled to 75 weeks of 
 
         permanent partial disability benefits based upon an impairment 
 
         award of 10 percent to the body.as a whole from Dr. Golnick.  The
 
         
 
         
 
         
 
         LaFRANCE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         Page 3
 
         
 
         
 
         agreement stated in part:  "[T]he execution of this compensation 
 
         agreement in no way affects the claimant's rights to future 
 
         medical benefits... "  (Ex. 1, p. 2) Claimant testified that the 
 
         medical was purposely left open because she "[s]till had 
 
         headaches, sore, stiff neck, had I trouble with pain between my 
 
         shoulder blades, and a lot of pain in my neck." (Tr. p. 15)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant and her husband moved to Texas in April of 1986.  
 
         In August of 1986, she was still having trouble.  She met a 
 
         chiropractor, Kent Noell, D.C., at a medical fair and began 
 
         taking treatment at his clinics.  Claimant testified, "I told him 
 
         that I had open medical and that it was under my belief that the 
 
         State of Iowa would pay for the bills whenever I needed help with 
 
         my problems." (Tr. pp. 16 & 17).  Claimant testified that she did 
 
         not understand that she needed prior authorization.  (Tr. p. 17) 
 
         She said that she was treated with ice, massage, heat, a roll 
 
         bar, cable traction and chiropractic adjustments similar to the 
 
         physical therapy she received from Dr. Golnick.  The treatments 
 
         helped when they were given on a regular basis.  (Tr..p. 17) 
 
         Claimant testified that she also received treatments from Drs. R. 
 
         J. Kolodzej, D.C., and Mark Gregg, D.C., both chiropractors.
 
         
 
              When the state refused to pay her bills, the chiropractors 
 
         refused to see her and her condition became worse. (Tr. pp. 19 & 
 
         20) Claimant testified that she still has headaches about once a 
 
         week, constant neck pain and continues to have pain between her 
 
         shoulder blades. (Tr. pp. 21 & 22)
 
         
 
              The chiropractic office records show a note dated November 
 
         17, 1986, which says that the patient reported falling on 
 
         November 16, 1986, and she was scheduled for an examination that 
 
         week. (Ex. p. 16)  Claimant denied any knowledge of such a fall. 
 
         (Tr. p. 23) The chiropractic office record also shows a new 
 
         injury on March 31, 1987. (Ex. 16  p. 2)  Claimant denied any 
 
         knowledge of a new injury on March 31, 1987. (Tr. p. 23)  On 
 
         cross-examination, claimant acknowledged that it is possible she 
 
         had a fall on November 16, 1986 and a new injury on March 31, 
 
         1987. (Tr. pp. 25 & 26)  Claimant acknowledged that an entry on 
 
         June 18, 1987, mentions sinusitis.  (Tr. p. 26; Ex. 16  p. 2)  
 
         She also granted that the chiropractic report showed nutrition 
 
         supplements for skin problems. (Tr. p. 27, Ex. 16 p. 1)
 
         
 
              Claimant testified that she worked at a restaurant in Texas 
 
         alternately as a cashier, waitress and food manager.  The 
 
         heaviest work was putting food on a plate and putting the plate 
 
         on a tray. (Tr. p. 30)
 
         
 
              Jeffrey K. LaFrance, claimant's husband, testified that the 
 
         medical was left open  at the time of settlement because claimant 
 
         was continuing to have headaches, neck pain and shoulder pain. 
 
         (Tr. p. 34)  It was his understanding that claimant could see Dr.
 
         
 
         
 
         
 
         LaFRANCE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         Page 4
 
         
 
         
 
         Noell and the state would pay for the treatment.  He did not know 
 
         that a written authorization was necessary from the State of Iowa 
 
         in order to see Dr. Noell. (Tr. pp. 35 & 36)   He testified that 
 
         she needed the treatment and that it helped her. (Tr. pp. 36 & 
 
         37)   He was not aware of a fall on November 16, 1986 or a new 
 
         injury on March 31, 1987.  He knew of no other injuries that 
 
         claimant sustained other than the injury with defendant.  (Tr. 
 
         pp. 38 & 39)  He testified that claimant continues to have 
 
         headaches, sore neck and pain between the shoulders.  (Tr. p. 39)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant treated with the chiropractors from August 22, 
 
         1986 through September 24, 1987. (Ex. 16  pp. 2 & 3)  On December 
 
         12, 1986, Richard L. Andrews supervisor, workers' compensation, 
 
         returned the chiropractic medical bills to claimant's counsel 
 
         with the statement:  "The attached bills were unauthorized by the 
 
         State of Iowa."  (Ex. 2) On January 29, 1987, claimant's counsel 
 
         requested instructions on how to obtain authorized medical care.  
 
         (Ex. 3)  The attorney did not receive a response and wrote to 
 
         Andrews again on April 6, 1987.  (Ex. 4)  Andrews responded on 
 
         April 13, 1987:  "I must still consider this unauthorized and 
 
         inappropriate treatment for your clients's chronic back 
 
         condition.  Belinda's day-to-day activities continue to aggravate 
 
         the chronic back condition; and should not be construed as being 
 
         the responsibility of the State of Iowa.  (Ex. 5)  Claimant's 
 
         attorney again requested the name of an authorized physician in 
 
         Texas so claimant could obtain authorized medical treatment.  
 
         (Ex. 6).
 
         
 
              Dr. Gregg authored a report on July 28, 1988, stating:  "On 
 
         August 22, 1986, the patient was examined in our offices for 
 
         injuries arising from an.accident on September 6, 1984."   Dr. 
 
         Gregg further stated:  The  patient's major complaints arising 
 
         from this accident are right major neck pain, left minor neck 
 
         pain, right and left shoulder pain, headaches (occipital and 
 
         frontal), pain between the shoulder blades, low back pain, and 
 
         fatigue. (Ex.  10  p. 1)  His x-rays revealed a slight right 
 
         scoliosis in the  thoracic spine and an additional vertebrae in 
 
         the lumbar spinal area causing an alteration in normal spinal 
 
         mechanics.
 
         
 
              Dr. Gregg found: "Final diagnosis is that I feel the 
 
         injuries sustained are casually related to the accident in 
 
         question."  (Ex. 10 p. 2)  He also felt that the physical 
 
         activities in her job as cashier aggravated her injuries and 
 
         adversely affected her recovery.  Dr. Gregg concluded his report 
 
         with these remarks:
 
         
 
              The patient was initially seen in our offices by Drs.
 
              Noell, Kolodzej, and myself for injuries sustained at
 
              the State Hospital.  The blow to the head and resultant
 
              fall were enough to injure the patient's Cervical,
 
              
 
         
 
         LaFRANCE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         Page 5
 
         
 
         
 
              Lumbar, and Sacro-Iliac areas.  Headaches were a major
 
              portion of her complaints with concommitant low back
 
              pain.
 
         
 
         (Ex. 10 p. 3
 
         
 
              A packet of medical bills totals $3,994.00 when an adding 
 
         machine,tape was used to total the separate monthly statements in 
 
         the packet.  These bills are from Kent C. Noell, D.C., and Golden 
 
         Triangle Chiropractic Center from August 22, 1986 through 
 
         February 12, 1988. (Ex. 14)
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              The initial original notice and petition filed October 29, 
 
         1984, alleged that claimant was hit across the face with leather 
 
         gloves, fell backwards and struck the back of her head and neck 
 
         against the wall and a metal door suffering injuries to her head, 
 
         neck, shoulder and back.  The original notice and petition.for 
 
         medical benefits in this instant case filed June 24, 1988, 
 
         alleged that claimant was struck in the face by a resident, 
 
         knocked down, rendered unconscious, and suffered injuries to the 
 
         neck, back and head.  The settlement agreement filed December 20, 
 
         1985, indicates that claimant "suffered injuries to her neck, 
 
         back and head." (Ex. 1)
 
         
 
              Dr. Gawecki's only report dated September 13, 1984, 
 
         mentioned only headaches. (Sett. Ex. 1)
 
         
 
              Dr. Golnick reported on September 26, 1984; November 26, 
 
         1984; February 4, 1985; May 6, 1985; August 12, 1985; and October 
 
         16, 1985. (Sett. Ex. 3-14)  He diagnosed and treated primarily 
 
         severe headaches in the occipital area and cervical pain.  On 
 
         October 26, 1984, he diagnosed post-traumatic headache with 
 
         injury to the cervical spine but he mentioned a positive shoulder 
 
         depression test at that time. (Sett. Ex. p. 4)   On November 26, 
 
         1984, he recorded tenderness over the upper thoracic and 
 
         mid-scapula area and the shoulder depression test caused 
 
         worsening of the cervical pain on both sides.  (Sett. Ex. p. 7)  
 
         Dr. Golnick ordered an electroencephalogram and prescribed 
 
         medications, a TENS unit, trigger point injections, paravertebral 
 
         blocks at C-5 and biofeedback therapy. (Sett. Ex. pp. 3-8)  On 
 
         February 4, 1985, Dr. Golnick mentioned that claimant was 
 
         complaining of neck pain as well as pain in the mid-thoracic 
 
         area.  He said she can return to work on January 15, 1985, with 
 
         the restriction of not lifting more than 20 pounds.  He ended 
 
         this report by stating:
 
         
 
              As far as her future treatment is concerned the patient
 
              will have to [sic] be seen by me periodically.  She
 
              will need to take pain medications for headache and
 
              neck pain.  She may also need an additional course of
 
              physical therapy and perhaps a future therapeutical
 
         
 
         
 
         
 
         LaFRANCE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         Page 6
 
         
 
         
 
              nerve block might be  necessary.  The patient should
 
              also continue to use the TENS unit for the cervical
 
              injury.
 
         
 
         (Sett. Ex. p. 10)
 
         
 
              On May 6, 1985; the neurologist stated: "I believe that she 
 
         should be restricted from any heavy lifting, pushing, or carrying 
 
         any heavy objects for a period of two years.  Heavy objects are 
 
         defined as anything more than 20 pounds.  The patient will remain 
 
         under my care.  She will benefit from therapeutical exercises." 
 
         (Sett. Ex. p. 11) On August 12, 1985, claimant still complained 
 
         of muscle spasms in her neck and a severe headache everyday 
 
         usually upon waking.  "An EMG and nerve conduction study was done 
 
         in our office on July 26, 1995.  The EMG showed abnormalities 
 
         indicative of cervical radiculopathy at the C5-C6 level on  the  
 
         left side." (Sett. Ex. p. 12)  The clinical diagnosis was (1) 
 
         chronic post traumatic headache; and (2) post traumatic cervical  
 
         radiculopathy at the C5-C6 level on the left.  The doctor then  
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         stated:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Prognosis:  There is a very good chance that the
 
              patient may continue to suffer from chronic headaches
 
              for many years or perhaps for the rest of her life.
 
              The neck pain most likely will get better with physical
 
              therapy.  However, the patient will continue to have
 
              problems with the pain in the neck as well as with
 
              reduced strength in the left upper extremity for at
 
              least two years.  The definite prognosis is difficult
 
              to determine at this point.
 
         
 
         (Sett. Ex. p. 12)
 
         
 
              At no time in any of the settlement exhibits was there any 
 
         mention of lumbar involvement.  (Sett. Ex. 1-15)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance 
 
         of the evidence that the injury of September 6, 1984, is casually 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W. 2d 607 (1945).  A 
 
         possibility is insufficient; a probability  is.necessary.  Burt 
 
         v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955). The question of casual 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 casual connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need
 
         
 
         
 
         
 
         LaFRANCE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         Page 7
 
         
 
         
 
         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 fast. Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone Co.
 
         , 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The cases cited by claimant's attorney to the effect that 
 
         claimant is entitled to additional medical benefits after a 
 
         release from the doctor, a return to work or a settlement do 
 
         support claimant's position. Emary v. Ankeny-Des Moines Plumbing, 
 
         Inc., Vol. I, No. 4, State of Iowa Industrial Commissioner 
 
         Decisions page 819 (June 10, 1985) ; Edgerton v. Hallmark Nursing 
 
         Home, Vol I, No. 4, State of Iowa Industrial Commissioner 
 
         Decisions 803, 807 (June 25, 1985) ; Rittgers v. United Parcel 
 
         Service, III Iowa Industrial Commissioner Report 210. (Appeal 
 
         Decision October 19, 1982).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              One case cited by claimant was particularly in point 
 
         because claimant sought chiropractic services after being 
 
         released by the medical doctor authorized by defendants.  The 
 
         industrial commissioner stated:  "There is no indication in the 
 
         record that defendants at that time or during the following 16 
 
         months offered claimant alternative medical services although 
 
         they knew or should have known through the reports of Dr. 
 
         Blenderman that claimant believed he was in need of further 
 
         medical assistance for his pain."  Kincaid v. Seedorf Masonry, 
 
         Vol. I, No. 1, State of Iowa Industrial Commissioner Decisions, 
 
         pages 128, 130  (Appeal Decision July 13, 1984).
 
         
 
              Claimant and her husband testified that they intentionally 
 
         left the medical open at the time of settlement because claimant 
 
         was having continuing problems and they anticipated that she 
 
         would need additional medical care.  The various quotes from Dr. 
 
         Golnick's reports show that he anticipated that claimant might 
 
         need additional care for many years or perhaps for the rest  of 
 
         her life. (Sett. Ex. 12)   Dr. Gregg stated that claimant's 
 
         injuries were the cause of her cervical, lumbar, and sacroiliac 
 
         complaints. (Ex. 10 p. 3) However, the opinion of experts  may be 
 
         accepted or rejected, in whole or in part, by the trier of fact.  
 
         Sondag, 220 N.W.2d 903, 907 (Iowa 1974).  Neither Dr. Gawecki or 
 
         Dr. Golnick mentioned lumbar pain at the time of the accident or 
 
         within one year after the accident.  Claimant has not established 
 
         a need for medical treatment to her lumbar spine caused by the 
 
         injury of September 6, 1984.  It is determined that claimant has 
 
         shown that the injury of September 6, 1984, was the cause of 
 
         additional medical treatment for headache, shoulder pain, 
 
         cervical pain and thoracic pain.
 
         
 
         
 
         
 
         LaFRANCE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         Page 8
 
         
 
         
 
              The bills submitted are not sufficiently definitive to 
 
         completely sort out what each treatment was for.  Obviously, 
 
         claimant is entitled to some recovery.  To allow no recovery 
 
         would not be correct or,.fair.  At the same time, it would not be 
 
         corrector fair to charge employer with bills for which it is not 
 
         responsible and therefore employer cannot be charged with all of 
 
         the treatment which is shown.  (Ex. 14 & 16)
 
         
 
              Claimant and her husband denied any knowledge of a new 
 
         injury on March 31, 1987.  However, it clearly appears from the 
 
         chiropractic records that claimant did sustain a new  injury  on 
 
         that date and the treatment changed to low back pain from neck 
 
         pain based upon initials used on.the chiropractic office notes.  
 
         Defendant is not liable for the low back pain treatments recorded 
 
         after March 31, 1987. (Ex. 16)
 
         
 
              The fact that claimant may have fallen on November 16, 
 
         1986, does not appear in any way to have changed the treatment 
 
         mode on the chiropractic office notes.  Nor is there any evidence 
 
         that this fall increased or intensified the amount of treatments 
 
         that claimant was already receiving.  The nutritional supplements 
 
         orthotic appliances do not appear to be significant.  In the best 
 
         judgment of this deputy, it would appear that claimant is 
 
         entitled to 50 percent of the total expenses submitted.  One half 
 
         of $3,994.00 is $1,997.00.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendant cites the case of Templeton v. Little Giant Crane 
 
         & Shovel, Vol. I, No. 3, State of Iowa Industrial Commissioner 
 
         Decisions 702 (Appeal Decision January 17, 1985).  In that case 
 
         the industrial commissioner denied benefits because claimant did 
 
         not seek authorization for the medical treatment for which he 
 
         wished to be reimbursed.  In this case, defendant would not pay 
 
         for the physician selected by claimant and would not authorize 
 
         another physician even though requested to do so on more than one 
 
         occasion.  Defendant also cites Lamack v. John Morrell & 
 
         Company, Vol I, No. 3, State of Iowa Industrial Commissioner 
 
         Decisions 621.  That case is distinguished from the instant case 
 
         because in that case employer had authorized a physician that 
 
         claimant could seek.
 
         
 
              When employer both denied treatment by the chiropractor, 
 
         which claimant was seeing, and refused to designate an authorized 
 
         physician, as claimant requested, this amounted to a total denial 
 
         of liability for claimant's claim for additional medical expense.  
 
         This is supported by the direct quote of defendant's workers' 
 
         compensation supervisor: "I must still consider this unauthorized 
 
         and inappropriate treatment for your client's chronic back 
 
         condition.  Belinda's day-to-day activities continue to aggravate 
 
         the chronic back condition; and should not be construed as being 
 
         the responsibility of the State of Iowa."  (Ex. 5)
 
         
 
         
 
         
 
         LaFRANCE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         Page 9
 
         
 
         
 
              The long standing precedent of this agency is that 
 
         defendants cannot dispute liability and at the same time be 
 
         entitled to choose the medical care. Barnhart v. MAQ 
 
         Incorporated, I Iowa Industrial Commissioner Report 16 (Appeal 
 
         Decision 1981); Kindhart v. Fort Des Moines Hotel, Vol I., No. 3, 
 
         State of Iowa Industrial Commissioner Decisions 611 (Appeal 
 
         Decision 1985); Hammeister v. Parkview Manor, File No. 721585 
 
         (Appeal  Decision October 31, 1986); Mason v. Thermogas, File 
 
         Nos. 819978 &  816116 (Appeal Decision filed July 28, 1989).  
 
         Claimant's only obligation after defendant denied total liability 
 
         for additional medical treatment was to seek only reasonable care 
 
         for medical conditions caused by the injury which occurred on 
 
         September 6  1984   Claimant testified that the chiropractic care 
 
         was quite similar to the physical therapy care prescribed by Dr. 
 
         Golnick.  There was no evidence that the care provided for 
 
         claimant's headaches, neck, shoulders and thoracic spine were not 
 
         reasonable or were not caused by this injury.   Dr. Gregg's 
 
         unequivocal statement on casual connection was not rebutted, 
 
         controverted,  contradicted, or refuted by any other evidence, 
 
         medical or non-medical.  Dr. Gregg was not deposed.  No 
 
         opposing-medical views by any other medical practitioners were 
 
         introduced into evidence by defendants.  Hartzer v. Swift 
 
         Independant Packing Company, File No. 786164 (filed January 31, 
 
         1990); Wright v. Super 8 Lodge of Des Moines, Filed No. 858615 
 
         (filed February 20, 1990.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has requested an order compelling defendant to 
 
         designate an authorized physician.  Defendant is ordered to 
 
         designate an authorized treating physician with appropriate 
 
         expertise within a reasonable distance from claimant's home at 
 
         the present time in Red Oak, Iowa within 30 days from the signing 
 
         and filing of this decision.  If defendant fails to designate an 
 
         authorized treating physician as specified, then defendant will 
 
         be liable for any care sought by claimant which is reasonable and 
 
         casually connected to the injury of September 6, 1984.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That at the time of the settlement under Iowa Code section 
 
         86.13 on December 20, 1985, both claimant and her husband 
 
         anticipated that claimant would need additional medical care for 
 
         the reason that she had ongoing complaints of pain at that time.
 
         
 
              That the settlement agreement specified that it in no way 
 
         affected claimant's rights to future medical benefits.
 
         
 
              That claimant continued to have headaches, cervical pain, 
 
         and shoulder pain after moving to Texas in April of 1986.
 
         
 
         
 
         
 
         LaFRANCE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         Page 10
 
         
 
         
 
              That claimant sought medical treatment from chiropractors 
 
         from August 22, 1986 through February 12, 1988.
 
         
 
              That claimant incurred total expenses of $3,994.00 for this 
 
         chiropractic care.
 
         
 
              That one half of this care is determined to be caused by 
 
         the injury of September 6, 1984 in the amount of $1,997.00.
 
         
 
              That the remaining $1,997.00 in medical care is determined 
 
         not to be related to the injury of September 6, 1984.
 
         
 
              That defendant refused to pay claimant's medical bills on 
 
         December,12, 1986 and again on April 13, 1987 and at the same 
 
         time refused to designate an authorized physician.
 
         
 
              That Dr. Golnick, the neurologist, who treated claimant 
 
         prior to the settlement predicted that there was a very good 
 
         chance that the patient may continue to suffer from chronic 
 
         headaches for many years or perhaps for the rest of her life; 
 
         that the neck pain most likely will get better with physical 
 
         therapy; and that a definite prognosis was difficult to determine 
 
         at that point but that claimant would continue to have neck pain 
 
         and reduced strength in the left upper extremity for at least two 
 
         years.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law, the following conclusions of law are 
 
         made:
 
         
 
              That defendant cannot deny liability for medical benefits 
 
         and at the same time claim the right to choose the care.
 
         
 
              That defendant's action in refusing to pay the medical 
 
         benefits claimed and at the same time refusing to designate an 
 
         authorized physician constitutes a total denial of liability for 
 
         claimant's claim for additional medical benefits.
 
         
 
              That claimant then is entitled to select her own medical 
 
         care limited only by the standards of reasonableness of the care 
 
         and casual connection to the injury of September 6, 1984.
 
         
 
              That defendant is liable for $1,997.00 in medical care.
 
         
 
              That defendant is ordered to designate an authorized 
 
         physician with the proper medical expertise within a reasonable 
 
         distance of claimant's home in Red Oak, Iowa within 30 days 
 
         following the date of this decision and if defendant fails to 
 
         authorize an appropriate physician, then claimant's choice of 
 
         medical care
 
         
 
         
 
         
 
         LaFRANCE V. GLENWOOD STATE HOSPITAL SCHOOL
 
         Page 11
 
         
 
         
 
         is limited only by the standard of reasonable care for treatment 
 
         caused by this injury.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay to claimant or to the provider of 
 
         medical services one thousand nine hundred ninety-seven and 
 
         no/100 dollars ($1,997.00) in medical benefits.
 
         
 
              That this amount is to be paid in a lump sum.
 
         
 
              That defendant is ordered to designate an authorized 
 
         physician as specified within thirty (30) days after the signing 
 
         and filing of this decision or be liable for any continuing care 
 
         selected by claimant which is reasonable and caused by this 
 
         injury.
 
         
 
              That the costs of this action are charged to defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33 
 
         including the cost of the transcript.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              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 21st day of March, 1990.
 
         
 
         
 
         
 
                                               WALTER R. McMANUS, JR.
 
                                               DEPUTY INDUSTRIAL 
 
         COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Jacob J. Peters
 
         Attorney at Law
 
         233 Pearl St
 
         P 0 Box 1078
 
         Council Bluffs  IA  51502
 
         
 
         Ms. Shirley A. Steffe
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines  IA  50319