1402.40
 
                                                 Filed November 23, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         EDNA DUCE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File No. 776806
 
         TEXTRON, INC.,
 
                                                    A P P E A L
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.40
 
         
 
              Claimant failed to establish that she suffers any permanent 
 
         impairment to her hand as a result of her work injury.
 
         
 
              Claimant failed to establish a causal connection between her 
 
         early carpal tunnel syndrome and her work injury.  Reversed.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MERRILL L. BANCROFT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                File Nos. 776819/776820
 
         JAYCO,
 
                                                      A P P E A L
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         GREAT WEST CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision which denied 
 
         all compensation for injuries he alleged occurred on July 23, 
 
         1984 and August 6, 1984 (No. 776820), and awarded 1 3/7 weeks of 
 
         temporary total disability for an injury of February 1983 (No. 
 
         776819).
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; claimant's exhibits 1 through 15; and 
 
         defendants' exhibits 1 through 3.  Both parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              Claimant states the following issues on appeal:
 
         
 
              1.  The Claimant received an injury arising out of and in 
 
              the course of his employment while working for Jayco in July 
 
              and August of 1984.
 
         
 
              2.  There is a causal connection between the work injuries 
 
              of February, 1983 and July and August of 1984 to the 
 
              Claimant's present physical condition and his required 
 
              surgery in August of 1984.
 
         
 
              3.  The Claimant in this case is wholly credible and his 
 
              testimony should be given great weight as to the occurrence 
 
              of the events testified to regarding his work injuries of 
 
              July and August, 1984 
 
         
 
              4.  As a result of the work injuries of February, 1983 and 
 
              July and August of 1984 the Claimant suffered an earning 
 
              capacity reduction which is permanent in nature.
 
         
 
                           REVIEW OF THE EVIDENCE
 
         
 

 
         
 
         
 
         
 
         BANCROFT V. JAYCO
 
         Page   2
 
         
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be reiterated herein.
 
         
 
              Briefly stated, claimant sustained an injury to his low,back 
 
         in February 1983 while unloading his semi-trailer.  Claimant 
 
         further alleges he sustained injuries on July 23, 1984 and August 
 
         6, 1984 while unloading material from his semi-trailer.  On 
 
         August 29, 1984 claimant underwent a hemilaminectomy at L5-Sl on 
 
         the right with good results.  David B. McClain, D.O., who has 
 
         been claimant's treating physician along with Harry Barquist, 
 
         D.O., and Martin S. Rosenfield, D.O., opines that claimant 
 
         currently suffers an eighteen percent permanent partial 
 
         impairment to the body as a whole.  Dr. McClain also opines that 
 
         claimant should avoid lifting in excess of 25 pounds for one year 
 
         from the date of the surgery and should avoid prolonged standing 
 
         or sitting.
 
         
 
              Claimant has worked for Colonial Baking Company since May 
 
         21, 1985 driving a semi-truck; however, he only drives within the 
 
         state and is currently laid off.  His earnings at Colonial were 
 
         nearly the same as his earnings when he worked for 
 
         defendant-employer.
 
         
 
              The medical evidence does not record the occurrence of the 
 
         injuries which claimant alleges occurred on July 23 and August 6, 
 
         1984.  In contrast, the medical notes of Dr. Barquist clearly 
 
         record the occurrence of a work injury in February 1983.
 
         
 
              Claimant's testimony indicates that he does not recall 
 
         relating the occurrence of the injuries of July and August 1984.  
 
         Claimant continued to drive for another 4,000 to 5,000 miles 
 
         after the July 23, 1984 injury.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The citations of law and analysis in the arbitration 
 
         decision are appropriate to the issues and evidence.
 
         
 
              The findings of fact, conclusions of law and order are 
 
         adopted herein.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  The claimant was employed by the defendants as an 
 
         over-the-road truck driver from July of 1982 to August of 1984
 
         
 
              2.  The claimant injured his back while unloading tires in 
 
         Dallas, Texas and injured it again a few days later while 
 
         unloading general merchandise in Houston, Texas in February of 
 
         1983.
 
         
 
              3.  The claimant notified his employer of these injuries the 
 
         day after the Houston accident.
 
         
 
              4.  The claimant returned home, obtained medical treatment, 
 
         and medical bills were paid by the workers' compensation 
 
         carrier.
 
         
 
              5.  The claimant was not paid weekly compensation for his 
 

 
         
 
         
 
         
 
         BANCROFT V. JAYCO
 
         Page   3
 
         
 
         
 
         time off work for this injury.
 
         
 
              6.  The claimant was off work from February 25, 1983 to and 
 
         including March 9, 1983 due to this injury.
 
         
 
              7.  The claimant alleged that he was injured on July 22, 
 
         1984 (July 23, 1984) and August 6, 1984.
 
         
 
              8.  The defendants received notice of the alleged injuries 
 
         on October 17, 1984 within 90 days of the occurrences.
 
         
 
              9.  There is no history of the alleged injuries of July 22, 
 
         1984 (July 23, 1984) or August 6, 1984 on the following records 
 
         (1)  Dr. Barquist's office notes; (2)  Des Moines General 
 
         Hospital; (3)  Dr. McClain's consultation report prior to surgery 
 
         or; (4)  any other records prior to the time of the filing of the 
 
         petition.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The claimant sustained an injury arising out of and in the 
 
         course of his employment when he injured his back in February of 
 
         1983 while unloading tires in Dallas, Texas and again a few days 
 
         later while unloading general merchandise in Houston, Texas.
 
         
 
              The claimant gave proper notice of the February 1983 injury 
 
         as required by Iowa Code section 85.23.
 
         
 
              The claimant was temporarily totally disabled under Iowa 
 
         Code section 85.33 from February 25, 1983 through March 9, 1983.
 
         
 
              The employer did receive timely notice under Iowa Code 
 
         section 85.23 of the injuries alleged to have occurred on July 
 
         22, 1984 (or July 23, 1984) and August 6, 1984.
 
         
 
              The claimant did not establish by a preponderance of the 
 
         evidence that he suffered an injury arising out of and in the 
 
         course of his employment while unloading tires at Prineville, 
 
         Oregon on July 22, 1984 (or July 23, 1984) or while unloading dog 
 
         food at Phoenix, Arizona on August 6, 1984.
 
         
 
              No medical benefits under Iowa Code section 85.27 are due to 
 
         the claimant on account of the injuries alleged to have occurred 
 
         in July and August of 1984.
 
         
 
              No healing period, temporary or permanent disability 
 
         benefits are due to the claimant under Iowa Code sections 85.33 
 
         or 85.34 for the injuries alleged to have occurred in July or 
 
         August of 1984.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That the defendants pay claimant one and three-sevenths (1 
 
         3/7) weeks of temporary total disability at the stipulated rate 
 
         of two hundred sixty-three and 38/100 dollars ($263.38) per week 
 

 
         
 
         
 
         
 
         BANCROFT V. JAYCO
 
         Page   4
 
         
 
         
 
         for a total payment of three hundred seventy-seven and 01/100 
 
         dollars ($377.01).
 
         
 
              That the defendants pay this amount in a lump sum.
 
         
 
              That the defendants pay accrued interest pursuant to Iowa 
 
         Code section 85.30.
 
         
 
              That defendants are to pay the costs of the arbitration 
 
         proceeding and claimant is to pay the costs of the appeal 
 
         including the transcription of the hearing proceeding.
 
         
 
              That defendants are to file a final report upon payment of 
 
         this award.
 
         
 
         
 
              Signed and filed this 14th day of May, 1987.
 
         
 
         
 
         
 
         
 
                                                ROBERT C. LANDESS
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. David D. Drake
 
         Attorney at Law
 
         2141 Grand Avenue
 
         P.O. Box 367
 
         Des Moines, Iowa 50302
 
         
 
         
 
         Mr. R. Jeffrey Lewis
 
         Attorney at Law
 
         2600 Ruan Center
 
         Des Moines, Iowa 50309-2577
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                      1402.20
 
                                                      Filed May 14, 1987
 
                                                      ROBERT C. LANDESS
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MERRILL L. BANCROFT,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                               File Nos. 776819/776820
 
         JAYCO,
 
                                                   A P P E A L
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         GREAT WEST CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.20
 
         
 
              Claimant did not establish by a preponderance of the 
 
         evidence that he suffered an injury arising out of and in the 
 
         course of his employment on July 23, 1984 or August 6, 1984 where 
 
         no history of these alleged injuries appeared in the medical 
 
         evidence prior to surgery or the filing of the petition.  
 
         Affirmed.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARTT V. BENDIXON,
 
         
 
              Claimant,                              File No. 776822
 
         
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         DEPARTMENT OF GENERAL SERVICES,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and                                           F I L E D
 
         
 
         STATE OF IOWA,                                 JAN 28 1988
 
         
 
              Insurance Carrier,               IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Bartt 
 
         Bendixon, claimant, against Iowa Department of General Services, 
 
         employer, and State of Iowa, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained September 16, 1983.  This matter came on for 
 
         hearing before the undersigned deputy industrial commissioner 
 
         December 22, 1987.  The record was considered fully submitted at 
 
         the close of the hearing.  The record in this case consists of 
 
         the testimony of claimant, Jack Fiscus, Stephen C. Rush, Daniel 
 
         Austin and Lenny Robertson; and joint exhibits A through G, 
 
         inclusive.
 
         
 
                                     ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved December 22, 1987, the issues for determination are:
 
         
 
              1.  The length of claimant's entitlement to temporary total 
 
         disability benefits;
 
         
 
              2.  Whether certain medical expenses incurred by claimant 
 
         were authorized pursuant to Iowa Code section 85.27 and causally 
 
         connected to the work injury; and
 
         
 
              3.  Defendants' entitlement to credit for the 4 4/7 weeks of 
 
         compensation benefits paid.
 
         
 
                                 FACTS PRESENTED
 
         
 
              The parties have stipulated that claimant sustained an 
 
         injury which arose out of and in the course of his employment on 
 
                                                
 
                                                         
 
         September 16, 1983, and that the work injury is not a cause of 
 
         permanent disability.
 
         
 
              Claimant testified he was hauling a desk on September 16, 
 
         1983 when his foot slipped while stepping off the back of a truck 
 
         and he fell into a gutter landing on his back and left shoulder. 
 
         He explained he was initially treated by Kent B. Hartung, M.D., 
 
         of East Des Moines Family Care Center, who referred claimant to 
 
         William R. Boulden, M.D., and Thomas Bower, L.P.T., for physical 
 
         therapy.  Claimant stated he was released to return to work 
 
         November 14, 1983, although he was still experiencing pain. 
 
         Claimant acknowledged he did return to his regular job at that 
 
         time and was able to perform the majority of his work 
 
         assignments.
 
         
 
              Claimant stated he worked steadily from November 1983 until 
 
         July 1984 when he returned to see Dr. Hartung because of 
 
         recurring shoulder pain and headaches.  On direction from 
 
         defendants, claimant returned to Dr. Boulden shortly thereafter, 
 
         was treated again with exercise and physical therapy and released 
 
         to return to work August 20, 1984, although claimant maintained 
 
         he was still experiencing pain.  Claimant did not return to work.  
 
         Claimant explained he had been told by Mr. Bower his pain would 
 
         improve but, it did not and claimant then went back to see Dr. 
 
         Hartung who referred him to John T. Bakody, M.D., who diagnosed 
 
         claimant as having thoracic outlet syndrome and referred claimant 
 
         to Albert Clemens, M.D., for surgery.  Claimant testified he was 
 
         hospitalized for ten days and that by June 1, 1985, felt 80 to 90 
 
         percent recovered.  However, on June 8, 1985, claimant was 
 
         involved in an automobile accident which he described as serious 
 
         and which interfered with the healing process.  Claimant makes no 
 
         request for workers' compensation benefits subsequent to that 
 
         date.
 
         
 
              Claimant denied any other injury between September 1983 and 
 
         June 1985 outside of a slip on a ramp which injured his ankle and 
 
         an exacerbation of his pain January 24, 1985 while shoveling 
 
         snow. Claimant revealed he had attempted to play softball but 
 
         experienced too much pain and turned to coaching instead, and 
 
         that in exchange for free beer he helped a friend put in a 
 
         swimming pool by running a jackhammer for a short period of 
 
         time.
 
         
 
              Jack Fiscus, maintenance worker for defendant employer, 
 
         testified he has worked with claimant since claimant's injury on 
 
         September 16, 1983 and denied knowledge of any other injury to 
 
         claimant or any complaints of further injury from claimant.
 
         
 
              Stephen C. Rush testified that when claimant returned to 
 
         work after his injury claimant appeared physically fit, able to 
 
         do all the work assigned, including hauling, and that he was 
 
         unaware claimant had any complaints of pain.
 
         
 
              Daniel Austin explained that once claimant returned to work 
 
         after his injury, claimant never mentioned he had sustained any 
 
                                                
 
                                                         
 
         other injury since September 16, 1983 and that claimant 
 
         complained of continued pain from the fall.
 
         
 
              Lenny Robertson testified he has worked with claimant since 
 
         claimant's injury doing some very heavy lifting and that he could 
 
         not recall claimant voicing any complaints of pain.
 
         
 
              William F. Boulden, M.D., orthopedic surgeon, testified by 
 
         deposition that he first saw claimant October 27, 1983 and 
 
         operated on a working diagnosis of cervical thoracic sprain with 
 
         residual tightness and stiffness in treating claimant.  Dr. 
 
         Boulden recommended an extensive exercise program and physical 
 
         therapy and when he next saw claimant November 8, 1983 felt 
 
         claimant showed marked improvement releasing him to return to 
 
         work November 14, 1983.  Dr. Boulden stated he next saw claimant 
 
         July 26, 1984 with the same type of complaint of tightness in the 
 
         neck and upper back.  Claimant was put back on the 
 
         exercise/physical therapy program and released to return to work 
 
         August 20, 1984. Claimant was not seen by Dr. Boulden after that.  
 
         Dr. Boulden stated claimant did not have any of the 
 
         constitutional symptoms of thoracic outlet syndrome, that such a 
 
         condition is most commonly a congenital problem which is "very, 
 
         very rarely acquired or developed from other reasons other than 
 
         congenital" and that he saw no correlation between the subsequent 
 
         surgery for a thoracic outlet syndrome and claimant's accident.  
 
         (Joint Exhibit F, pages 13-14)
 
         
 
              Albert Clemens, M.D., surgeon, testified by deposition he 
 
         first saw claimant February 4, 1985 on referral from Dr. Bakody, 
 
         diagnosed claimant as having secondary to his injury a thoracic 
 
         outlet syndrome and recommended surgery which he performed 
 
         approximately one month later.  Dr. Clemens opined claimant was 
 
         making good progress from the surgery when claimant was last seen 
 
         on June 1, 1985.  Dr. Clemens stated claimant's surgical 
 
         condition was related to the fall from the truck September 16, 
 
         1983 and further that "almost 50 percent of all the thoracic 
 
         outlet syndromes that have been operated on by the leading 
 
         authority in this country reviewed by a surgeon in New York 
 
         including his own have been secondary to trauma."  (Jt. Ex. G, p. 
 
         16, lines 7-11)
 
         
 
                               APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 16, 1983 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
                                                
 
                                                         
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  The 
 
         expert opinion may be accepted or rejected, in whole or in part, 
 
         by the trier of fact.  Id. at 907.  Further, the weight to be 
 
         given to such an opinion is for the finder of fact, and that may 
 
         be affected by the completeness of the premise given the expert 
 
         and other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman v. Central Telephone Co., 261 
 
         Iowa 352, 154 N.W.2d 128 1967).
 
         
 
              Iowa Code section 85.33(1) provides:
 
         
 
                   Except as provided in subsection 2 of this section, the 
 
              employer shall pay to an employee for injury producing 
 
              temporary total disability weekly compensation benefits, as 
 
              provided in section 85.32, until the employee has returned 
 
              to work or is medically capable of returning to employment 
 
              substantially similar to the employment in which the 
 
              employee was engaged at the time of injury, whichever occurs 
 
     
 
                               
 
                                                         
 
              first.
 
         
 
              Iowa Code section 85.27 provides, in part:
 
         
 
                   For purposes of this section, the employer is obliged 
 
              to furnish reasonable services and supplies to treat an 
 
              injured employee, and has the right to choose the care.  The 
 
              treatment must be offered promptly and be reasonably suited 
 
              to treat the injury without undue inconvenience to the 
 
              employee.  If the employee has reason to be dissatisfied 
 
              with the care offered, he should communicate the basis of 
 
              such dissatisfaction to the employer, in writing if 
 
              requested, following which the employer and the employee may 
 
              agree to alternate care reasonably suited to treat the 
 
              injury.  If the employer and employee cannot agree on such 
 
              alternate care, the commissioner may, upon application and 
 
              reasonable proofs of the necessity therefor, allow and order 
 
              other care.  In an emergency, the employee may choose his 
 
              care at the employer's expense, provided the employer or his 
 
              agent cannot be reached immediately.
 
         
 
                                    ANALYSIS
 
         
 
              Of first concern is whether or not claimant's surgery on 
 
         March 9, 1985 for thoracic outlet syndrome is causally connected 
 
         to claimant's work injury on September 16, 1983.  Dr. Boulden 
 
         expresses the opinion that it is not related since such a 
 
         condition is "very, very rarely" caused by any reason other than 
 
         a congenital reason.  Dr. Clemens comes to the exact opposite 
 
         conclusion stating thoracic outlet syndrome is often caused by 
 
         trauma.  Based on Dr. Clemens' deposition which states what 
 
         appears to be extensive experience in the treatment of this 
 
         condition, Dr. Clemens opinion is accepted.  In addition, 
 
         claimant had no history of shoulder pain prior to his work 
 
         injury. Therefore, claimant's medical treatment for thoracic 
 
         outlet syndrome is found to be causally connected to the injury 
 
         of September 16, 1983.
 
         
 
              Clearly, defendants designated Dr. Boulden as the authorized 
 
         physician.  After claimant was released to return to work August 
 
         20, 1984, claimant, rather than going back to work, returned to 
 
         Dr. Hartung at the East Des Moines Family Care Center.  Claimant 
 
         was then referred to Dr. Bakody and eventually to Dr. Clemens. 
 
         Defendants argue the treatment provided by these doctors was not 
 
         authorized and that they therefore should not be held responsible 
 
         for the costs thereof.  However, the uncontroverted evidence in 
 
         the record establishes claimant, as a result of the surgery, was 
 
         making good progress towards a full recovery and claimant himself 
 
         felt 80 to 90 percent fully recovered.  Defendants cannot take 
 
         advantage of the benefits of surgery while disputing its 
 
         authorization.  Unauthorized treatment which improves an 
 
         employee's condition and ultimately may mitigate the employer's 
 
         liability may subsequently be found reasonable and necessary for 
 
         treatment of an injury.  Butcher v. Valley Sheet Metal, 4 Iowa 
 
         Indus. Comm'r Rep. 49 (Appeal Decision 1983); Rittgers v. United 
 
                                                
 
                                                         
 
         Parcel Serv., 3 Iowa Indus. Comm'r Rep. 210 (Appeal Decision 
 
         1982); Hutchinson v. American Freight Systems, Inc., I-1 Iowa 
 
         Indus. Comm'r Dec. 94 (Appeal Decision 1984).  As claimant's 
 
         surgery for thoracic outlet syndrome has been found causally 
 
         connected to the September 16, 1983 injury and Dr. Boulden did 
 
         not consider such a condition in making his diagnosis of 
 
         claimant, it is accepted claimant's treatment for this condition 
 
         was reasonable and necessary for the treatment of the injury.  
 
         Claimant is, therefore, entitled to temporary total disability 
 
         benefits for the stipulated period of September 16, 1983 to 
 
         November 14, 1983 and July 17, 1984 to June 8, 1985.  Defendants 
 
         are entitled to a credit for benefits paid prior to hearing.
 
         
 
                              FINDINGS OF FACT
 
         
 
              Therefore, based on the evidence presented, the following 
 
         facts are found:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment on September 16, 1983 when he fell 
 
         off the back of a truck while hauling a desk.
 
         
 
              2.  Claimant was unable to work from the date of injury 
 
         through November 14, 1983.
 
         
 
              3.  Claimant returned to work when released although he was 
 
         still experiencing pain and worked steadily until July 17, 1984 
 
         when he returned to his doctor because of pain.
 
         
 
              4.  Claimant was released to return to work by the 
 
         authorized physician August 20, 1984.
 
         
 
              5.  Claimant did not return to work but instead returned to 
 
         his family doctor, was then referred to Dr. Bakody. and then to 
 
         Dr. Clemens who diagnosed thoracic outlet syndrome secondary to 
 
         the work injury.
 
         
 
              6.  Thoracic outlet syndrome was causally connected to 
 
         claimant's work injury.
 
         
 
              7.  Claimant had surgery March 9, 1985 and was making good 
 
         progress toward recovery when he was involved in an automobile 
 
         accident June 8, 1985.
 
         
 
              8.  Claimant's condition improved as a result of surgery 
 
         which was reasonable and necessary to treat the injury.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Therefore, based on the principles of law previously stated, 
 
         the following conclusions of law are made:
 
         
 
              1.  Claimant has established his entitlement to temporary 
 
         total disability benefits for the periods of September 16, 1983 
 
         through November 14, 1983, inclusive, and July 17, 1984 through 
 
                                                
 
                                                         
 
         June 8, 1985, inclusive.
 
         
 
              2.  Claimant has established the medical expenses incurred 
 
         were reasonable and necessary for the treatment of his work 
 
         injury.
 
         
 
              3.  Defendants are entitled to a credit for compensation 
 
         benefits previously paid.
 
         
 
                                     ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants shall pay to claimant fifty-five point two eighty 
 
         six (55.286) weeks of temporary total disability benefits for the 
 
         period from September 16, 1983 through November 14, 1983, 
 
         inclusive, and July 17, 1984 through June 8, 1985, inclusive, at 
 
         the stipulated rate of one hundred forty-two and 94/100 dollars 
 
         ($142.94) per week.
 
         
 
              Defendants shall pay all disputed medical expenses from Dr. 
 
         Clemens, Mercy Hospital, Orthopaedic Associates, Dr. Bakody, East 
 
         Des Moines Family Care Center, and Physical Therapy Consultants 
 
         totaling two thousand seven hundred thirty-six and 75/100 dollars 
 
         ($2,736.75).
 
         
 
              Defendants shall receive full credit for all disability 
 
         benefits previously paid.
 
         
 
              Payments shall be paid in a lump sum together with statutory 
 
         interest thereon pursuant to Iowa Code section 85.30.
 
         
 
              Costs are assessed against defendants pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 28th day of January, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Mark S. Pennington
 
         Attorney at Law
 
         620 Fleming Building
 
         Des Moines, Iowa  50309
 
         
 
         Mr. Greg Knoploh
 
                                                
 
                                                         
 
         Assistant Attorney General
 
         Hoover Building
 
         LOCAL
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1108.50; 1402.60
 
                                                 Filed 1-28-88
 
                                                 Deborah A. Dubik
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARTT V. BENDIXON,
 
         
 
              Claimant,                              File No. 776822
 
         
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         DEPARTMENT OF GENERAL SERVICES,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50
 
         
 
              Although not diagnosed until significantly after claimant's 
 
         work injury and then not by authorized physician, claimant's 
 
         thoracic outlet syndrome and surgery therefore found to be 
 
         causally connected to injury based on testimony of surgeon and 
 
         claimant's lack of prior history of pain in the shoulder.
 
         
 
         1402.60
 
         
 
              Claimant's condition improved as a result of surgery which 
 
         was found to be reasonable and necessary to treat the work 
 
         injury. Therefore, although claimant did not seek authorization 
 
         for treatment, medical benefits were allowed.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL DRAY,
 
         
 
              Claimant,                             File No. 776847
 
         
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         SHELLER GLOBE CORPORATION,
 
         
 
              Employer,                             D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Michael Dray 
 
         against his self-insured employer, Sheller Globe Corporation.  
 
         The case was heard at Burlington, Iowa on May 26, 1987 and was 
 
         fully submitted upon conclusion of the hearing.  The evidence in 
 
         the case consists of testimony from claimant and exhibits A 
 
         through E.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks compensation for temporary total disability 
 
         based upon an alleged injury of September 27, 1984 to his right 
 
         foot.  The only issues identified for determination are those 
 
         necessarily related to the claim, namely, whether claimant 
 
         sustained injury which arose out of and in the course of his 
 
         employment; whether the alleged injury was a proximate cause of 
 
         any disability; and, determination of his entitlement to 
 
         compensation for temporary total disability.  Claimant stated 
 
         that there was no evidence to support a claim for permanent 
 
         partial disability.  He specifically made no claim for section 
 
         85.27 benefits.  It was stipulated that, in the event of an 
 
         award, claimant's gross weekly earnings were $428.49 per week and 
 
         that the rate of compensation should be based upon five 
 
         exemptions.
 
         
 
                            SUMMARY OF THE EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
          All evidence received at the hearing was considered when 
 
         deciding the case.
 
         
 
              Michael Dray testified that, on September 27, 1984, he 
 
         injured his right foot while transferring covers from a cart onto 
 
         line 3.  Claimant testified that he worked the following day, but 
 
         was unable to continue and went to the first aid department 
 
         where
 
         he reported the injury.  He testified that he was sent to Dr. 
 
         Kemp, the company physician, and was instructed to wrap the ankle 
 
         and to stay off it.  Claimant testified that he was off work for 
 

 
         
 
         
 
         
 
         DRAY V. SHELLER GLOBE CORPORATION
 
         Page   2
 
         
 
         
 
         a period of time and then returned to work two or three weeks 
 
         later at which time Dr. Kemp released him to light duty.  
 
         Claimant testified that he received sick leave while he was off 
 
         work.
 
         
 
              Claimant testified that his first treatment was received on 
 
         September 29, 1984 at the Keokuk Area Hospital.  He testified 
 
         that it has been so long since the incident that he remembers 
 
         little except that he had pain in his right foot.  In response to 
 
         exhibit E, page 15, claimant acknowledged that he went off work 
 
         due to his shoulder and remained off work until November, 1984.
 
         
 
              On page one of exhibit A, near the middle of the page, it 
 
         indicates that, when claimant sought medical treatment, he 
 
         reported that he hurt his heel on Thursday.  Reference to a 
 
         calendar shows September 27, 1984 to have been a Thursday and 
 
         September 29, 1984 to have been a Saturday.
 
         
 
              Exhibit B, at an entry dated October 1, 1984, indicates that 
 
         claimant was authorized to perform light work.  The same exhibit, 
 
         at an entry of October 4, 1984, confirms the light-work 
 
         assignment, but also indicates that claimant's arm was 
 
         immobilized because of a dislocated right shoulder.  Reference to 
 
         a calendar shows October 1 to have been a Monday and October 3 to 
 
         have been a Wednesday.
 
         
 
              Defendant's exhibit C shows that claimant missed no work 
 
         whatsoever in September and that he missed no work in October 
 
         until October 3, 1984.
 
         
 
              Exhibit E, page 15, is a group accident and sickness claim 
 
         form which appears to bear claimant's signature.  It indicates 
 
         that he was injured on October 3, 1984 while trying to shake out 
 
         a car mat and his shoulder went out.  It further indicates at the 
 
         bottom of the page, that claimant last worked at Sheller Globe on 
 
         October 2, 1984.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on September 27, 1984 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Having examined the records and heard claimant's testimony, 
 
         the testimony that he injured his right foot or ankle on 
 
         September 27, 1984 is accepted as correct.  It is corroborated by 
 
         the
 
         
 
         medical records found in exhibits A and B.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 27, 1984 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 

 
         
 
         
 
         
 
         DRAY V. SHELLER GLOBE CORPORATION
 
         Page   3
 
         
 
         
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              A worker is entitled to temporary total disability benefits 
 
         only until the employee has returned to work or until the 
 
         employee is medically capable of returning to employment 
 
         substantially similar to that in which he was engaged at the time 
 
         of injury whichever occurs first. (Code section 85.33).  
 
         Claimant's evidence fails to establish, by a preponderance of the 
 
         evidence, that the injury to his right foot ever rendered him 
 
         incapable of working.  To the contrary, exhibit B shows that he 
 
         was permitted to perform light duty work and exhibit C shows that 
 
         he did not miss any work until October 3, 1984, when he injured 
 
         his shoulder in a nonoccupational accident.
 
         
 
              Claimant has, therefore, failed to establish an entitlement 
 
         to any benefit under the workers' compensation law, except for 
 
         the costs of medical treatment which were not in issue.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Michael Dray injured his right foot on September 27, 
 
         1984 in an injury that arose out of and in the course of his 
 
         employment with Sheller Globe Corporation.
 
         
 
              2.  The injury to claimant's foot was not a substantial 
 
         factor in causing Dray to be unable to be employed.
 
         
 
              3.  Dray suffered an intervening trauma to his shoulder, 
 
         which was not a work-related injury, on October 3, 1984, which 
 
         rendered him unable to be gainfully employed.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  Claimant has no entitlement to any benefits under the 
 
         workers' compensation laws.
 
         
 
         
 
         
 
         
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that costs of this action are assessed 
 
         against claimant.
 
         
 
         
 
         
 
              Signed and filed this 19th day of October, 1987.
 
         
 
         
 
         
 

 
         
 
         
 
         
 
         DRAY V. SHELLER GLOBE CORPORATION
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa 52632
 
         
 
         Mr. Harry Dahl
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                1402.40
 
                                                Filed October 19, 1987
 
                                                MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MICHAEL DRAY,
 
         
 
              Claimant,                             File No. 776847
 
         
 
         VS.
 
                                                 A R B I T R A T I 0 N
 
         SHELLER GLOBE CORPORATION,
 
         
 
              Employer,                            D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
         1402.40
 
         
 
              The evidence showed that claimant injured his right foot at 
 
         work, but that the injury did not produce disability since the 
 
         employer kept him working in a light duty capacity.  He then 
 
         injured his right shoulder in a nonoccupational accident which 
 
         required him to be absent from work.  Claimant's claim for 
 
         temporary total disability was denied.
 
 
 
 
        
 
 
 
 
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        DONALD LOWE,
 
        
 
            Claimant,
 
        
 
        vs.                              File Nos. 776977/673326
 
                                                   805718
 
        IOWA STATE PENITENTIARY,
 
        
 
            Employer,                         A P P E A L
 
        
 
        and                                  D E C I S I O N
 
        
 
        STATE OF IOWA,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Claimant appeals and defendants cross-appeal from an arbitration 
 
        decision awarding healing period benefits, permanent partial 
 
        disability based upon an industrial disability of 40 percent, and 
 
        allowing defendants credit for amounts paid under the State of 
 
        Iowa Long Term Disability Plan.
 
        
 
         The record on appeal consists of the transcript of the 
 
        arbitration hearing; claimant's exhibits 1 through 25 except the 
 
        portion of exhibit 24 excluded by oral ruling of the deputy; and 
 
        defendants' exhibits A through F. Both parties filed briefs on 
 
        appeal.
 
        
 
                                      ISSUES
 
        
 
        The issues on appeal are whether there is a causal connection 
 
        between a work injury suffered by claimant and his alleged 
 
        disability; the nature and extent of claimant's alleged 
 
        disability whether the deputy correctly ordered that medical 
 
        benefits be paid; whether deputy correctly determined that he had 
 
        jurisdiction to decide whether credit should be allowed for 
 
        amounts paid under a long term disability plan; and whether 
 
        deputy correctly assessed costs.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally reiterated herein.
 
        
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 2
 
        
 
        
 
        Claimant was 41 years old at the time of the hearing. He is a 
 
        high school graduate who worked as a drill press operator, stock 
 
        man, oiler on a crane, farmhand, feed salesman, grain buyer, 
 
        truck driver, street sweeper operator, and factory worker from 
 
        1963 to 1979. He began work for defendants in January 1979 as an 
 
        exercise officer who escorted inmates between a cellhouse and an 
 
        exercise area.
 
        
 
        On June 11, 1981 claimant was kicked in the groin by an inmate. 
 

 
        
 
 
 
 
 
        He was treated with rest and medication and returned to work 
 
        without restriction approximately 30 days later. On October 3, 
 
        1984 claimant slipped on steps at work and strained himself. 
 
        Exploratory surgery was performed on December 11, 1984 and a 
 
        bulging weakness diagnosed as evidence of an inguinal hernia was 
 
        repaired. A second surgery was performed on February 18, 1985 and 
 
        claimant's left testicle was removed. Subsequent examination of 
 
        the testicle found no abnormalities. Claimant recovered from the 
 
        surgeries and returned to work on April 22, 1985. On September 
 
        26, 1985 claimant was again kicked in the groin by an inmate. He 
 
        again sought treatment from Vasant F. Pawar, M.D., who had 
 
        treated claimant for the prior two injuries. Dr. Pawar treated 
 
        claimant with rest, cold compresses, and pain medication which 
 
        were unsuccessful in relieving claimant's pain. Claimant was 
 
        referred to a pain clinic where a left-sided ilioinguinal nerve 
 
        block was performed. The results of the evaluation of claimant at 
 
        the pain clinic on January 17, 1986 were interpreted as 
 
        consistent with denervation in the distribution of either the 
 
        genitofemoral or ilioinguinal nerves on the left and it was 
 
        suggested that the claimant be considered for genitofemoral 
 
        neurectomy. In a letter dated February 17, 1986 Dr. Pawar wrote: 
 
        "Donald Lowe still has severe pain which is disabling. He cannot 
 
        walk or stand for a long period of time. He is therefore totally 
 
        disabled."
 
        
 
        Pursuant to Dr. Pawar's suggestion claimant was seen by the Mayo 
 
        Clinic between April 3-11, 1986. Doctors there found a tender, 
 
        localized area in the area of the adductor tendon insertions, but 
 
        found no clinical evidence for ilioinguinal or genitofemoral 
 
        neuropathy or a lumbar radiculopathy. Ian D. Hay, M.D., Associate 
 
        Professor of Medicine at the Mayo Clinic thought that claimant 
 
        would respond to treatment of deep heat and ultrasound as well as 
 
        appropriate range of motion exercises for the left hip.
 
        
 
        Dr. Pawar testified by way of deposition taken May 28, 1986. He 
 
        testified that claimant had an 80 percent "disability" of the 
 
        body because of pain. He opined that the claimant's condition was 
 
        directly related to the injury of September 26, 1985. Dr. Pawar 
 
        also testified that he continued- the therapy suggested by Mayo 
 
        Clinic until May 27, 1986 which was claimant's last visit prior 
 
        to the deposition but that claimant had had no relief. Dr. Pawar 
 
        stated that claimant. was not permanently partially disabled, 
 
        there was no dysfunction of his body, and
 
        
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 3
 
        
 
        
 
        he could perform his job after the injuries in 1981 and 1984. He 
 
        further testified:
 
        
 
        Q. And do you have an opinion as to what permanent impairment 
 
        that would be to the body as a whole?
 
        
 
        A. Body as a whole--
 
        
 
        Q. Doctor, when I describe that--
 
        
 
        A. What I'm trying to say, see if--
 
        
 
        Q. Because it's not an arm or leg, and that is an extremity.
 
        
 
        A. See, the thing is, assess impairment, Number One, he's in pain 
 
        all the time; very sharp, piercing, severe pain. He'll not be 
 
        able to do his job, what he's doing now. He's able to care for 
 
        himself and he gets around with pain.
 

 
        
 
 
 
 
 
        
 
        I was just wondering whether he'll be able to do any alternative 
 
        work, and he can't sit for a long time because of pain so I 
 
        almost feel that he probably will--
 
        
 
        As a total percent of the body, he'll have at least almost like 
 
        an 80 percent disability.
 
        
 
        
 
        Q. And then as I understand it, in the middle of September, 1985, 
 
        he was kicked again?
 
        
 
        A. Yeah.
 
        
 
        Q. But tendonitis is usually not a permanent injury, is it?
 
        
 
        A. Some are. Some tennis elbow.
 
        
 
        Q. Except they quit playing tennis?
 
        
 
        A. Yes, except that it's the injury that affects this.
 
        
 
        Q. And it can be injured?
 
        
 
        A. It can be injured but can be very severe an injury too.
 
        
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 4
 
        
 
        
 
        Q. And isn't it in fact true that sometimes tendons, after 
 
        they're rested and the inflammation goes down, that they are then 
 
        100 percent okay; isn't that right?
 
        
 
        A. I just mentioned--said before, it's not always--Many times it 
 
        does go away but sometimes it becomes a permanent problem.
 
        
 
        Q. And how long does it take a tendon to get enough rest before 
 
        it's healed itself, in your experience?
 
        
 
        A. Well, in my experience, good about four to six weeks.
 
        
 
        
 
        Q. --that's restricted, what percentage of the left hip movement 
 
        is restricted? What's the limits on his range of motion in 
 
        degrees on the left hip?
 
        
 
        A. Degrees reduction about-- Adduction goes to--almost to a 40 
 
        degrees and abduction should almost go like a 70 to 80 degrees.
 
        
 
        Q. And what's his range?
 
        
 
        A. His, about, adduction is about 10 degrees and abduction is 
 
        about 50 degrees, 50 or 60 degrees.
 
        
 
        Q. And so what, using those figures, what is the percentage of 
 
        reduction in his range of motion?
 
        
 
        A. Range of motion, percentage-wise, is about 75 percent.
 
        
 
        
 
        Q. How long would you expect Mr. Lowe to have to wait to see any 
 
        improvement in his situation, if it is the tendonitis?
 
        
 
        A. Yeah, if-- I would say-- I would like to wait 2. least about 
 
        six to eight weeks.
 

 
        
 
 
 
 
 
        
 
        
 
        Q. Well, what kinds things, under those circumstances, would be 
 
        worth trying to see whether or not he could improve his 
 
        situation?
 
        
 
        A. Well, as I said, I would really like to give
 
        
 
        
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 5
 
        
 
        
 
        him a good try, maybe only takes eight - ten weeks of this 
 
        therapy, this a conservative route, you know, and he's, you know, 
 
        he wants to get well....if we can give it a good try, 10 - 12 
 
        weeks, that's long enough to wait and see if he gets any better.
 
        
 
        Q. So in 12 weeks his whole condition could be totally different 
 
        than what it is?
 
        
 
        A. It's worthwhile waiting. No way of telling for sure.
 
        
 
        
 
        Q. Oh, by the way, can a person get tendonitis from being kicked?
 
        
 
        A. Yes.
 
        
 
        Q. Is that the usual way?
 
        
 
        A. Not the usual way but it can.
 
        
 
        Q. Kick would be more of a compression injury rather than a 
 
        stretching; isn't that right?
 
        
 
        A. Yeah, but if severe enough--See, the spot he was kicked is 
 
        where the tendon is attached so it can-- It's a direct injury.
 
        
 
        See, when you get tendonitis from pulling indirect--I mean, 
 
        pulling on the tendon so the tendon-- The main thing I explained 
 
        to you, tendonitis occurs at the point where the tendon is 
 
        inserted or attached to the bone. So by constant repetitive or 
 
        sudden pulling can cause tendonitis.
 
        
 
        At the same time, some direct injury, direct on the spot where 
 
        the tendon is attached, can cause the same effect.
 
        
 
        Q. So in fact, Doctor, it's almost too early, in your opinion, 
 
        then, to give him a rating as to disability that would be set 'or 
 
        the rest of his life; isn't that correct?
 
        
 
        A. Well, I've been in this business for a long time. I won't say 
 
        it's too early. Only reason I say, it's a simple approach, give 
 
        it a try. Not too early, because it's what, September of '85, 
 
        that's three;
 
        
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 6
 
        
 
        
 
        and this is what, almost five; eight months. you know, eight 
 
        months not too early.
 
        
 
        (Claimant's Exhibit 23)
 
        
 
        In a letter dated August 15, 1986 Narayana Ambati, M.D., wrote:
 

 
        
 
 
 
 
 
        
 
        I received all the medical records of Mr. Donald L. Lowe, even 
 
        though I don't remember any thing specific regarding this 
 
        patient, according to the records, he was seen by me once in 1984 
 
        for the second injury.
 
        
 
        
 
        I am of the opinion that Mr. Lowe should not have lost his testis 
 
        for the kind of injuries he sustained. If at all, if he is 
 
        disabled, the disability should be temporary, recovery should be 
 
        permanent.
 
        
 
        (Defendants' Exhibit B)
 
        
 
        In a letter dated September 8, 1986 Dr. Hay wrote:
 
        
 
        Neither Dr. L. T. Wood of our Department of Physical Medicine and 
 
        Rehabilitation nor myself are in a position to offer an 
 
        impairment rating on Mr. Lowe since a diagnosis was made at Mayo 
 
        but a treatment program not commenced while in Rochester. Because 
 
        of the expected change in status of the patient, we feel that We 
 
        would be unable to provide an opinion regarding Mr. Lowe's degree 
 
        of disability, whether temporary, permanent, industrial, partial, 
 
        or total.
 
        
 
        (Def. Ex. A)
 
        
 
        Claimant was also seen once by John P. Allen, M.D., who wrote in 
 
        a letter dated November 11, 1986:
 
        
 
        I would appreciate, in the future, receiving a letter of 
 
        introduction with questions and appropriate medical data prior to 
 
        seeing the patient.
 
        
 
        
 
        His present diagnosis is subjective complaints of pain in the 
 
        left groin. His prognosis is guarded for any improvement in that 
 
        condition.
 
        
 
        
 
        Based on my examination, I see no compelling evidence
 
        -
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 7
 
        
 
        
 
        that he would be limited in sitting, standing, lifting, stooping 
 
        or bending or use of his lower extremities. He was able to walk 
 
        in to the room, sit down, dress and undress with little 
 
        difficulty.
 
        
 
        I feel that Mr. Lowe is capable of performing an occupation for 
 
        which he reasonably fitted by education. training and experience 
 
        on a full time basis. In all probability, because of his 
 
        complaints of pain, I suspect that a light duty classification 
 
        would be most appropriate. I see no compelling evidence to place 
 
        him in a sedentary or totally disabled position.
 
        
 
        (Def. Ex. F)
 
        
 
        Claimant testified that he began using a cane in April 1986 
 
        pursuant to instruction from a doctor in Mayo Clinic. He further 
 
        testified that he unsuccessfully attempted to get employment at a 
 
        gas station, a factory, a sheriff's department, and an auction 
 
        service. He stated that he did not think his condition had 
 
        improved from the time Dr. Pawar's deposition was taken in May 
 

 
        
 
 
 
 
 
        1986 and the hearing which was held January 8, 1987. He indicated 
 
        that he is unable to do physical activities and the only place he 
 
        is comfortable is in a recliner where he watches television 13 to 
 
        17 hours a day. He admitted that he choose not to attempt to 
 
        block a nerve at Mayo Clinic in April 1986 because it was a 
 
        painful experience and that he wanted to return to his home. He 
 
        also admitted that he could mow grass and that he drove to and 
 
        from Mayo Clinic. The trip was 300 miles one way and he drove 
 
        that distance in one day.
 
        
 
         Claimant was evaluated by Marian S. Jacobs, a vocational 
 
        consultant, whose report stated in relevant parts:
 
        
 
        Today, in my opinion, Mr. Lowe's employment options and earning 
 
        capacity are limited at best.
 
        
 
        He must seek a job with limited walking, standing, pushing and 
 
        pulling and one that allows him to walk with the aid of a cane.
 
        
 
        
 
        On the other hand, Mr. Lowe's unremitting pain may preclude any 
 
        employment if he must spend extended periods each day in a 
 
        reclining position with his feet elevated. His treating physician 
 
        has stated that Mr. Lowe's pain is totally disabling. (Emphasis 
 
        in original)
 
        
 
        (Cl. Ex. 24)
 
        
 
        
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 8
 
        
 
        
 
                                 APPLICABLE LAW
 
        
 
        The citations of law in the arbitration decision are appropriate 
 
        to the issues and evidence.
 
        
 
        
 
                                      ANALYSIS
 
        
 
        Claimant sustained injuries that arose out of and in the course 
 
        of his employment on June 11, 1981, October 3, 1984 and September 
 
        26, 1985. The parties raise no issue with the deputy's statement 
 
        that no claim is made for temporary total disability or healing 
 
        period benefits with regard to the 1981 and 1984 injuries.
 
        
 
        The first issue to be resolved is whether there is a causal 
 
        connection between a work injury suffered by claimant and his 
 
        alleged permanent disability. The record is uncontroverted that 
 
        following each of the injuries in 1981 and 1984 claimant returned 
 
        to work at his job with defendants. There is no indication that 
 
        his work was restricted when he returned. Although claimant may 
 
        have had a physical impairment after those two injuries, he did 
 
        not have a reduction of earning capacity. Therefore, neither the 
 
        work injury of June 11, 1981 nor the work injury of October 3, 
 
        1984 resulted in any permanent disability.
 
        
 
        It remains to be decided if the work injury of September 26, 1985 
 
        is causally connected to a permanent disability. The evidence is 
 
        uncontroverted that claimant was kicked in the groin by an inmate 
 
        on that date. Claimant's complaints of pain and subsequent 
 
        medical treatment are consistent with an injury to the groin. 
 
        Claimant has suffered continuing pain. Dr. Pawar, claimant's 
 
        treating physician, has indicated that he agreed with a Mayo 
 
        Clinic's diagnosis of adductor tendonitis and that tendonitis can 
 

 
        
 
 
 
 
 
        be a permanent problem. Dr. Pawar thought that inflamed tendons 
 
        which healed themselves through rest would be so healed in four 
 
        to six weeks. Claimant experienced pain from September 1985 until 
 
        at least April 1986 when he was evaluated and diagnosed by the 
 
        Mayo Clinic. Dr. Ambati saw claimant only once and then only for 
 
        the 1984 injury and he concluded that claimant should not be 
 
        permanently disabled for the 1984 injury. Dr. Hay from the Mayo 
 
        Clinic was unable to offer any opinion whether claimant's 
 
        disability was temporary, permanent, industrial, partial, or 
 
        total. Dr. Allen made his opinion without what he termed 
 
        "appropriate medical data." Although Dr. Allen saw no compelling 
 
        evidence claimant would be limited in certain activities he 
 
        nonetheless thought light duty classification would be most 
 
        appropriate for claimant. Claimant has established a causal 
 
        connection between his work injury of September 26, 1984 and 
 
        permanent disability.
 
        
 
        The second issue to be resolved is the extent of claimant's 
 
        disability. Claimant argues on appeal that he is totally disabled
 
        
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 9
 
        
 
        
 
        and that he is an odd-lot employee. Dr. Pawar testified that 
 
        claimant was 80 percent "disabled" and earlier opined in writing 
 
        that claimant was totally "disabled." He based his opinion upon 
 
        the fact of claimant's subjective complaints of pain. Marian 
 
        Jacobs also indicated that claimant's pain was a limiting factor 
 
        in claimant's employment options. Dr. Pawar gave the only 
 
        indication of physical impairment other than the pain. He was 
 
        asked what was the reduction of range of motion but it appears 
 
        that his response was the range of motion. It appears that it was 
 
        his testimony that claimant had a 75 percent range of motion of 
 
        his hip. Claimant's disability then is based upon his impairment 
 
        which is subjective complaints of pain and a reduction of motion 
 
        of his hip. Claimant asserts that he suffers pain that prevents 
 
        him from doing physical activity and only allows him to be in a 
 
        recliner 13 to 17 hours per day. However, he did admit that he 
 
        could mow his grass. He also drove 300 miles in one day to Mayo 
 
        Clinic and did the same to return to his home. It was suggested 
 
        that he undergo a nerve block to relieve his pain but he declined 
 
        to do so. He apparently discontinued the therapy recommended by 
 
        the Mayo Clinic and did not enter into any active course of 
 
        medical treatment. Claimant asserts that he suffers from pain 
 
        that totally disables him. However, he does not seek treatment 
 
        that is designed to relieve his pain. Claimant's failure to 
 
        actively cooperate in attempts to relieve the pain may indicate 
 
        that claimant's pain is not as severe as he asserts.
 
        
 
        Claimant was 41 years old at the time of the hearing, has a high 
 
        school education and has a history of manual labor type jobs. His 
 
        employment opportunity is limited. The medical diagnoses of 
 
        claimant's condition are genitofemoral neuropathy or adductor 
 
        tendonitis. Jacobs' opinion is unrebutted and indicates that 
 
        claimant's employment options are limited. That opinion is based 
 
        in part on Dr. Pawar's "disability" rating which in turn is based 
 
        on claimant's pain. There is a lack of evidence from defendants 
 
        regarding medical evidence to rebut claimant's evidence of 
 
        impairment and vocational rehabilitation evidence to rebut 
 
        claimant's evidence. However, claimant has shown a lack of 
 
        motivation. while he has sought employment, discontinuing 
 
        treatment to relieve his pain and spending 13 to 17 hours per day 
 
        in a recliner watching television do not show that claimant is 
 
        highly motivated. when all the factors of disability are 
 
        considered it is found that claimant has a 40 percent permanent 
 

 
        
 
 
 
 
 
        partial disability when evaluated industrially. Claimant also 
 
        alleges that he is an odd-lot employee. Claimant must make a 
 
        prima facie showing that he is not employable. Claimant has 
 
        unsuccessfully sought employment. Jacobs' opinion that 
 
        claimant's employment opportunity is limited is based upon 
 
        claimant's subjective claims of pain which as discussed above are 
 
        not as severe as his assertions. Furthermore, Jacob' and Dr. 
 
        Allen's opinions were that claimant could be
 
        
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 10
 
        
 
        
 
        employed. Also, Dr. Pawar gave his later rating of "disability" 
 
        of 80 percent. It should be noted that the doctor is not 
 
        qualified to make a determination of disability but is only 
 
        qualified to rate impairment. Claimant has not made a prima facie 
 
        showing that he is unemployable.
 
        
 
        It is also necessary to determine claimant's entitlement to 
 
        healing period benefits relating to the injury of September 26, 
 
        1985. Defendants' assertion that healing period benefits should 
 
        end on November 14, 1984 is clearly erroneous. As stated above 
 
        the parties did not raise an issue with the deputy's statement 
 
        that no claim is made for temporary total disability or healing 
 
        period benefits with regard to the 1981 and 1984 injuries. Also, 
 
        without specifically ruling on the issue herein, claimant's 
 
        temporary total disability following the 1984 injury would not 
 
        end until after his surgeries and when he returned to work in 
 
        April 1985. Obviously, claimant's healing period for the injury 
 
        in 1985 could not end in November 1984. Dr. Pawar who was the 
 
        treating physician was vague as to when the claimant could reach 
 
        maximum recovery. He first indicated that it might be within six 
 
        weeks of when his deposition was taken on May 28, 1986 and he 
 
        later said within 12 weeks. More importantly claimant testified 
 
        that he was no better at the time of the hearing than he was in 
 
        May 1986.
 
        
 
        Although Dr. Pawar was vague about when claimant would reach 
 
        maximum recovery, he gave claimant a total "disability" rating on 
 
        February 17, 1986. Previous appeal decisions by this agency have 
 
        held:
 
        
 
        That a person continues to receive medical care does not indicate 
 
        that the healing period continues. Medical treatment which is 
 
        maintenance in nature often continues beyond that point when 
 
        maximum medical recuperation has been accomplished. Medical 
 
        treatment that anticipates improvement does not necessarily 
 
        extend healing period particularly when the treatment does not in 
 
        fact improve the condition.
 
        
 
        Stevens v. Ideal Ready Mix Co., Inc., Volume I, No. 4, Iowa 
 
        Industrial Commissioner Decisions 1082, 1087 (1985) and Derochie 
 
        v. City of Sioux City, II Iowa Industrial Commissioner Report 
 
        112, 114 (1982). The Iowa court of Appeals has stated: "It is 
 
        only at the point at which a disability can be determined that 
 
        the disability award can be made. Until such time, healing 
 
        benefits are awarded the injured worker." Thomas v. Knudson, 349 
 
        N.W.2d 124, 126 (Iowa App. 1984). Dr. Pawar's general statements 
 
        that claimant's pain had been fairly consistent during his 
 
        treatment, claimant's statement that he had not improved, and the 
 
        fact that treatment did not improve claimant's condition, all 
 
        indicate that when Dr. Pawar gave his first "disability" rating, 
 
        claimant's healing period had ended. Claimant's healing period 
 
        ended February 17, 1986.
 
        
 

 
        
 
 
 
 
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 11
 
        
 
        
 
        The deputy in his decision determined that the healing period 
 
        benefits should commence on December 6, 1985. It is not readily 
 
        apparent how the deputy made that determination. It appears that 
 
        the deputy gave the defendants credit either for ten weeks (400 
 
        hours) of sick leave pay or for weekly benefits previously paid. 
 
        (Transcript, page 14, lines 1-8) The time period for sick leave 
 
        was apparently arrived at from a statement made by claimant 
 
        (Transcript, page 102, line 13) that he had used 400 hours of 
 
        sick leave. However, claimant testified that the sick leave of 
 
        400 hours was used after the 1984 injury. If defendants are to be 
 
        given credit against healing period benefits in this case for 
 
        sick leave, they must show affirmatively what the credit should 
 
        be. Defendants have not demonstrated entitlement to any such 
 
        credit for sick leave. The defendants are entitled to credit for 
 
        weekly workers' compensation benefits previously paid and the 
 
        credit is ordered below.
 
        
 
        Defendants apparently raise several other issues on appeal by 
 
        making the same arguments in the appeal brief that were made in 
 
        the post hearing brief. Defendants' method of raising the issues 
 
        makes it unclear as to the errors alleged to have been committed 
 
        by the deputy. These issues will be dealt with summarily. The 
 
        medical costs claimed by claimant were causally related to his 
 
        1985 injury and should be paid by defendants.
 
        
 
        The deputy did allow credit for the stipulated amounts paid under 
 
        the State of Iowa Long Term Disability Plan. It appears that 
 
        defendants continue the argument that the deputy does not have 
 
        subject matter jurisdiction on this issue despite the fact that 
 
        the deputy ordered credit be given. The deputy correctly 
 
        concluded that this agency has subject matter jurisdiction over 
 
        the provisions of Iowa Code section 85.38. It is not readily 
 
        apparent what relief defendants seek on this issue on appeal.
 
        
 
        Lastly, the deputy, pursuant to Division of Industrial Services 
 
        Rule 343-4.33, has discretion to assess costs. Those costs 
 
        include the costs of attendance of a certified shorthand reporter 
 
        and transcription of doctors' deposition testimony. The deputy 
 
        did not err in assessing the costs for reporting and transcribing 
 
        the deposition of Dr. Pawar.
 
        
 
                                 FINDING OF FACT
 
        
 
        1. Claimant was injured on June 11, 1981 when he was kicked in 
 
        the groin by an inmate.
 
        
 
        2. Claimant returned to work approximately 30 days after the June 
 
        11, 1981 injury.
 
        
 
        3. Claimant sustained no permanent disability as a result of the 
 
        June 11, 1981 injury.
 
        
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 12
 
        
 
        
 
        4. Claimant slipped at work on October 3, 1984 and experienced 
 
        pain in the groin injury.
 
        
 
        5. On April 22, 1985 claimant was released to return to work 
 
        following the injury on October 3, 1984.
 
        
 

 
        
 
 
 
 
 
        6. Claimant sustained no permanent industrial disability as a 
 
        result of the October 3, 1984 injury.
 
        
 
        7. Claimant was injured on September 26, 1985 when he was kicked 
 
        in the groin by an inmate.
 
        
 
        8. Following the injury claimant was incapable of performing 
 
        work in employment substantially similar to the work he performed 
 
        at the time of the September 26, 1985 injury.
 
        
 
        9. The physiological source of claimant's pain has not been 
 
        specifically identified. The source has been identified as either 
 
        genitofemoral neuropathy or adductor tendonitis.
 
        
 
        10. Claimant has a 75 percent range of motion of the hip.
 
        
 
        11. Claimant's condition is permanent.
 
        
 
        12. Claimant's pain is not as disabling as claimant asserts.
 
        
 
        13. There is a causal connection between claimant's work injury 
 
        of September 26, 1985 and his permanent disability.
 
        
 
        14. Claimant's medical expenses in the amount of $2,919.09 have 
 
        been incurred for treatment of the September 26, 1985 injury.
 
        
 
        15. Claimant's disability could be determined on February 17, 
 
        1986.
 
        
 
        16. Claimant was 41 years old at the time of the hearing and has 
 
        a high school education.
 
        
 
        17. Claimant's work experience is primarily manual labor.
 
        
 
        18. Claimant is employable.
 
        
 
        19. Claimant is not an odd-lot employee.
 
        
 
        20. The work injury of September 26, 1985 was the cause of 
 
        claimant's industrial disability of 40 percent.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has not proved by the greater weight of evidence that 
 
        the injuries sustained on June 11, 1981 and October 3, 1984 were 
 
        the cause of any permanent industrial disability.
 
        
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 13
 
        
 
        
 
        Claimant has proved by the greater weight of evidence that the 
 
        work injury on September 26, 1985 was the cause of permanent 
 
        industrial disability.
 
        
 
        Claimant has proved by the greater weight of evidence that he is 
 
        entitled to healing period benefits from September 26, 1985 until 
 
        February 17, 1986.
 
        
 
        Claimant has proved by the greater weight of evidence he has an 
 
        industrial disability of 40 percent as a result of the injury of 
 
        September 26, 1985.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed and modified.
 
        
 
                                      ORDER
 

 
        
 
 
 
 
 
        
 
        THEREFORE, it is ordered:
 
        
 
        That defendants pay claimant healing period benefits from 
 
        September 26, 1985 through February 17, 1986 at the stipulated 
 
        rate of two hundred twenty-two and 64/100 dollars ($222.64) per 
 
        week.
 
        
 
        That defendants pay claimant two hundred (200) weeks of 
 
        compensation for permanent partial disability at the stipulated 
 
        rate of two hundred twenty-two and 64/100 dollars ($222.64) per 
 
        week commencing February 18, 1986.
 
        
 
        That defendants receive credit for amounts paid under the State 
 
        of Iowa Long Term Disability Plan in the stipulated amount and 
 
        credit for all amounts subsequently paid under such plan. The 
 
        credit is to be applied on a week by week basis to the healing 
 
        period and permanent partial disability awarded in this decision.
 
        
 
        That any amounts remaining past due, after application of the 
 
        credits provided herein, shall be paid in a lump sum together 
 
        with interest pursuant to section 85.30 and defendants receive 
 
        credit against this award for all weekly benefits previously 
 
        paid.
 
        
 
        That defendants pay the claimant for the following medical 
 
        expenses:
 
        
 
        Mayo Clinic                      $1,938.40
 
        Memorial Hospital                   631.65
 
        Memorial Hospital                 5.00
 
        Springfield Clinic               30.00
 
        Memorial Medical Center         314.04
 
        
 
        Total                        $2,919.09
 
        
 
        LOWE v. IOWA STATE PENITENTIARY
 
        Page 14
 
        
 
        
 
        That costs of this proceeding are assessed against defendants 
 
        including the costs of transcription of the arbitration hearing 
 
        and court reporter fees for Cherly Newman Liles in the amount of 
 
        two hundred eighty-seven dollars ($287.00).
 
        
 
        That defendants file claim activity reports pursuant to Division 
 
        of Industrial Services Rule 343-3.1(2).
 
        
 
        
 
        Signed and filed this 16th day of December 1988.
 
        
 
        
 
        
 
                                          DAVID E. LINQUIST
 
                                      INDUSTRIAL COMMISSIONER