BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        CARL SPEER,
 
        
 
            Claimant,
 
        
 
        vs.                               File No. 792171
 
        
 
        SUPER VALU STORES, INC.,           A P P E A L
 
        
 
            Employer,                   D E C I S I O N S
 
        
 
        and
 
        
 
        LIBERTY MUTUAL INSURANCE CO.,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        
 
                                 STATEMENT OF THE CASE
 
        
 
        Defendants appeal from an arbitration decision awarding permanent 
 
        partial disability benefits as the result of an alleged injury on 
 
        April 11, 1985.
 
        
 
        The record on appeal consists of the transcript of the 
 
        arbitration proceeding and joint exhibits A through 5. Both 
 
        parties filed briefs on appeal.
 
        
 
                                      ISSUES
 
                                                
 
        Defendants state the following issues on appeal:
 
        
 
        1. Is there a causal relationship between the alleged work 
 
        injury and the claimed disabilities.
 
        
 
        2. Was there substantial evidence in the record to support the 
 
        award made by the deputy commissioner.
 
        
 
        3. Did Claimant sustain his burden of establishing entitlement by 
 
        a preponderance of the evidence.
 
        
 
        4. The extent of Claimant's entitlement to benefits for permanent 
 
        disability, if any.
 
        
 
                                 REVIEW OF THE EVIDENCE
 
        
 
        The arbitration decision adequately and accurately reflects the 
 
        pertinent evidence and it will not be totally set forth herein.
 
        
 
        SPEER v. SUPER VALU STORES, INC.
 
        Page 2
 
        
 
        
 
        Briefly stated, claimant was employed by Super Valu as a truck 
 
        driver for 36 years. His duties included unloading pallets of 
 
        grocery items with the use of a jack. Claimant was required to 
 
        use his right hand to operate the jacks.
 
        
 
        On April 11, 1985, claimant was unloading in the state of 
 

 
        
 
 
 
 
 
        Illinois when he tried to lift a 100-200 pound steel plate and 
 
        felt a "pop" in his right shoulder and felt pain. Claimant was 
 
        treated by the company doctor, John C. Trapp, D.O., and referred 
 
        to Mark Kirkland, D.O., an orthopedic surgeon, who recommended 
 
        that claimant remain off work. Claimant testified he had no 
 
        shoulder problems or pain prior to this injury.
 
        
 
        Claimant received an arthrogram from Scott B. Neff, D.O., which 
 
        did not reveal a rotator cuff tear. Dr. Neff recommended a 
 
        surgical procedure but it was not performed. Claimant was then 
 
        seen by Peter D. Wirtz, M.D., and was diagnosed as suffering a 
 
        rotator cuff tendonitis. Both Dr. Wirtz and Dr. Kirkland 
 
        restricted claimant to light duty work, but claimant remained off 
 
        work as no light duty work was available at Super Valu.
 
        
 
        On October 2, 1985, claimant was considered by Dr. Wirtz to have 
 
        reached maximum healing. Dr. Wirtz assigned claimant a permanent 
 
        physical impairment rating of five percent of the right upper 
 
        extremity or three percent of the body as a whole. Claimant was 
 
        later seen by Jerome G. Bashara, M.D., an orthopedic surgeon who 
 
        diagnosed a torn rotator cuff and tendonitis, and on September 
 
        19, 1986, Dr. Bashara gave claimant a 19 percent permanent 
 
        partial physical impairment rating of the body as a whole. Dr. 
 
        Bashara explained that his rating of impairment was greater than 
 
        Dr. Wirtz's because his examination occurred later in time and 
 
        claimant's condition had worsened, in part because he had not 
 
        undergone recommended surgery.
 
        
 
        Claimant returned to Dr. Wirtz in May of 1987 for a reevaluation. 
 
        Dr. Wirtz disagreed with Dr. Bashara's diagnosis of an incomplete 
 
        rotator cuff tear, and instead stated that claimant had 
 
        tendonitis. Dr. Wirtz concluded that claimant exhibited a motive 
 
        of secondary gain and was resisting attempts to accurately 
 
        measure his range of motion.
 
        
 
        Subsequent to April 1985, claimant experienced two episodes of 
 
        shoulder pain while doing routine household chores, but the 
 
        medical evidence indicates that these incidents were merely minor 
 
        aggravations. Both Dr. Wirtz and Dr. Bashara opined that 
 
        claimant's condition was permanent. Dr. Bashara stated that 
 
        claimant is unable to lift above his shoulder or behind his back. 
 
        Dr. Wirtz testified that claimant is able to drive a truck for 
 
        six hours per day. Both Dr. Wirtz and Dr. Bashara noted that 
 
        claimant has a limitation of his range of motion for his right 
 
        arm, and neither Dr. Wirtz or Dr. Bashara have released claimant 
 
        to return to his regular work.
 
        
 
        SPEER v. SUPER VALU STORES, INC.
 
        Page 3
 
        
 
        
 
        Claimant was 63 years old at the time of the hearing, and had a 
 
        tenth grade education. Claimant's work experience is limited to 
 
        driving and unloading trucks. Claimant stated he could not 
 
        presently pass a DOT physical to return to truck driving.
 
        
 
        Claimant testified that he requested light duty work from his 
 
        employer but his request was declined. Claimant also stated that 
 
        representatives of the insurance carrier suggested he retire 
 
        early. Rhonda Harris, Super Valu's personnel director, testified 
 
        that there was no light duty work available for claimant at the 
 
        time of his injury. H. Shelby Swain, a vocational rehabilitation 
 
        specialist, testified that claimant would be employable if he 
 
        could drive a truck, or if a light duty job such as dispatcher_ 
 
        were available, but claimant was not employable in other 
 
        occupations due to his age, lack of education, lack of 
 

 
        
 
 
 
 
 
        transferable skills, and lack of rehabilitation potential. 
 
        However, Swain acknowledged that his conclusion was based, in 
 
        part, on local economic factors. Kathryn Bennett, another 
 
        vocational rehabilitation specialist, also testified that 
 
        claimant was unemployable except for possibly part-time, minimum 
 
        wage jobs.
 
        
 
        The parties stipulated that on April 11, 1985, claimant received 
 
        an injury which arose out of and was in the course of his 
 
        employment with Super Valu; that claimant is not seeking 
 
        temporary total disability or healing period benefits and has 
 
        been paid healing period benefits from April 12, 1985 through 
 
        October 10, 1985; that the commencement date for permanent 
 
        partial disability benefits if awarded should be January 7, 1986; 
 
        and that claimant's rate of compensation is $396.50.
 
        
 
                                 APPLICABLE LAW
 
        
 
        The claimant has the burden of proving by a preponderance of the 
 
        evidence that the injury of April 11, 1985 is causally related to 
 
        the disability on which he now bases his claim. Bodish v. 
 
        Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. 
 
        L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is 
 
        insufficient; a probability is necessary. Burt v. John Deere 
 
        Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The 
 
        question of causal connection is essentially within the domain of 
 
        expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
        375, 101 N.W.2d 167 (1960).
 
        
 
        However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. Burt, 
 
        247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be 
 
        couched in definite, positive or unequivocal language. Sondag v. 
 
        Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert 
 
        opinion may be accepted or rejected, in whole or in part, by the 
 
        trier of fact. Id. at 907. Further, the weight to be given to 
 
        such an opinion is for the finder of fact, and
 
        
 
        SPEER v. SUPER VALU STORES, INC.
 
        Page 4
 
        
 
        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).
 
        
 
        If claimant has an impairment to the body as a whole, an 
 
        industrial disability has been sustained. Industrial disability 
 
        was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
        593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
        that the legislature intended the term 'disability' to mean 
 
        'industrial disability' or loss of earning capacity and not a 
 
        mere 'functional disability' to be computed in the terms of 
 
        percentages of the total physical and mental ability of a normal 
 
        man."
 
        
 
        Functional impairment is an element to be considered in 
 
        determining industrial disability which is the reduction of 
 
        earning capacity, but consideration must also be given to the 
 
        injured employee's age, education, qualifications, experience and 
 
        inability to engage in employment for which he is fitted. Olson 
 
        v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
        257 (1963).
 
        
 
        A finding of impairment to the body as a whole found by a medical 
 
        evaluator does not equate to industrial disability. This is so as 
 

 
        
 
 
 
 
 
        impairment and disability are not synonymous. Degree of 
 
        industrial disability can in fact be much different than the 
 
        degree of impairment because in the first instance reference is 
 
        to loss of earning capacity and in the later to anatomical or 
 
        functional abnormality or loss. Although loss of function is to 
 
        be considered and disability can rarely be found without it, it 
 
        is not so that a degree of industrial disability is 
 
        proportionally related to a degree of impairment of bodily 
 
        function.
 
        
 
        Factors to be considered in determining industrial disability 
 
        include the employee's medical condition prior to the injury, 
 
        immediately after the injury, and presently; the situs of the 
 
        injury, its severity and the length of healing period; the work 
 
        experience of the employee prior to the injury, after the injury 
 
        and potential for rehabilitation; the employee's qualifications 
 
        intellectually, emotionally and physically; earnings prior and 
 
        subsequent to the injury; age; education; motivation; functional 
 
        impairment as a result of the injury; and inability because of 
 
        the injury to engage in employment for which the employee is 
 
        fitted. Loss of earnings caused by a job transfer for reasons 
 
        related to the injury is also relevant. These are matters which 
 
        the finder of fact considers collectively in arriving at the 
 
        determination of the degree of industrial disability.
 
        
 
        There are no weighting guidelines that indicate how each of the 
 
        factors are to be considered. There are no guidelines
 
        
 
        SPEER v. SUPER VALU STORES, INC.
 
        Page 5
 
        
 
        
 
        which give, for example, age a weighted value of ten percent of 
 
        the total value, education a value of fifteen percent of total, 
 
        motivation - five percent; work experience - thirty percent, etc. 
 
        Neither does a rating of functional impairment directly correlate 
 
        to a degree of industrial disability to the body as a whole. In 
 
        other words, there are no formulae which can be applied and then 
 
        added up to determine the degree of industrial disability. It 
 
        therefore becomes necessary for the deputy or commissioner to 
 
        draw upon prior experience, general and specialized knowledge to 
 
        make the finding with regard to degree of industrial disability. 
 
        See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
        February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
        March 26, 1985).
 
        
 
        In Parr v. Nash Finch Co., (Appeal Decision, October 31, 1980) 
 
        the industrial commissioner, after analyzing the decisions of 
 
        McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
        Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
        stated:
 
        
 
        Although the court stated that they were looking for the 
 
        reduction in earning capacity it is undeniable that it was the 
 
        "loss of earnings" caused by the job transfer for reasons related 
 
        to the injury that the court was indicating justified a finding 
 
        of "industrial disability." Therefore, if a worker is placed in a 
 
        position by his employer after an injury to the body as a whole 
 
        and because of the injury which results in an actual reduction in 
 
        earning, it would appear this would justify an award of 
 
        industrial disability. This would appear to be so even if the 
 
        worker's "capacity"" to earn has not been diminished.
 
        
 
        For example, a defendant employer's refusal to give any sort of 
 
        work to a claimant after he suffers his affliction may justify an 
 
        award of disability. McSpadden, 288 N.W.2d 181.
 

 
        
 
 
 
 
 
        
 
        Similarly, a claimant's inability to find other suitable work 
 
        after making bona fide efforts to find such work may indicate 
 
        that relief would be granted. McSpadden, 288 N.W.2d 181.
 
        
 
        A worker is totally disabled if the only services the worker can 
 
        perform are so limited in quality, dependability, or quantity, 
 
        that a reasonable, stable market for them does not exist. When a 
 
        combination of industrial disability factors precludes a worker 
 
        from obtaining regular employment to earn a living, a worker with 
 
        only a partial functional disability has a total industrial 
 
        disability. Guyton v. Irving Jensen Company, 373 N.W.2d 101 (Iowa 
 
        1985).
 
        
 
        The approach of later years when it can be anticipated that under 
 
        normal circumstances a worker would be retiring
 
        
 
        SPEER v. SUPER VALU STORES, INC.
 
        Page 6
 
        
 
        
 
        is, without some clear indication to the contrary, a factor which 
 
        can be considered in determining the loss of earning capacity or 
 
        industrial disability which is causally related to the injury. 
 
        Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
        Industrial Commissioner 34 (Appeal Decision 1979).
 
        
 
        In determining industrial disability, the fact that employment 
 
        opportunities are temporarily restricted due to a local economic 
 
        situation is not a factor, in that such conditions affect all 
 
        workers in the area equally, regardless of claimant's injury. 
 
        Webb v. Lovejoy Construction Company, II Iowa Industrial Comm'r 
 
        Report 430 (Appeal Decision 1984).
 
        
 
                                      ANALYSIS
 
        
 
        Defendants state as an issue on appeal whether there was 
 
        "substantial evidence" for an award for permanent partial 
 
        disability benefits. As claimant correctly points out, on appeal 
 
        of a decision by a deputy industrial commissioner to the 
 
        industrial commissioner, the standard of review is de novo rather 
 
        than whether substantial evidence existed. The substantial 
 
        evidence standard is the standard of judicial review of a final 
 
        agency decision. Thus, defendants' appeal issue of substantial 
 
        evidence will be considered a part of defendants' general issue 
 
        of whether claimant carried his burden to prove his entitlement 
 
        to benefits by a preponderance of the evidence.
 
        
 
        Defendants allege on appeal that claimant failed to prove that 
 
        his disability is causally connected to his work injury. The 
 
        medical evidence shows that the physicians who treated and 
 
        examined claimant attributed his present right shoulder condition 
 
        to his work injury of April 11, 1985. Claimant testified that he 
 
        had no right shoulder problems prior to his injury of April 11, 
 
        1985. This testimony is unrebutted in the record. Claimant has 
 
        shown that his present right shoulder condition is causally 
 
        connected to his work injury of April 11, 1985.
 
        
 
        Defendants also raise as an issue on appeal the extent of 
 
        claimant's disability. Claimant was given two different ratings 
 
        of physical impairment. Dr. Wirtz assigned claimant a rating of 
 
        three percent of the body as a whole. Dr. Bashara assigned 
 
        claimant a rating of 19 percent of the body as a whole. There 
 
        was considerable examination of both doctors as to whether 
 
        claimant's shoulder injury was an injury to the arm or to the 
 
        body as a whole. Dr. Neff and Dr. Kirkland both described 
 

 
        
 
 
 
 
 
        claimant's injury as being to the shoulder. Dr. Bashara testified 
 
        that claimant's injury did extend beyond the joint to the body. 
 
        Dr. Wirtz described claimant's injury as an injury to the 
 
        extremity. Claimant described ,he pain from his injury as being 
 
        in his shoulder and extending to the rear of his shoulder to his 
 
        back. Dr. Wirtz acknowledged that claimant's condition extended 
 
        to the acromion. Claimant's range of motion tests reveal that
 
        
 
        SPEER v. SUPER VALU STORES, INC.
 
        Page 7
 
        
 
        
 
        his physical restriction goes not just to the movement of the 
 
        arm, but to the raising of the arm above shoulder level. The 
 
        greater weight will be given to the testimony of Dr. Bashara. 
 
        Claimant has suffered an injury to the body as a whole.
 
        
 
        Dr. Wirtz testified that in his opinion, claimant resisted 
 
        during his range of motion tests in order to enhance the extent 
 
        of his disability. However, Dr. Wirtz acknowledged on cross- 
 
        examination that claimant's pain was as likely a cause of the 
 
        resistance encountered.
 
        
 
        Claimant's shoulder injury has rendered him incapable of 
 
        returning to the type of work he did at the time of the injury, 
 
        driving a truck. Claimant is able to operate a recreational 
 
        vehicle, but the record stands unrebutted that he is only able to 
 
        do so because the recreational vehicle is equipped with power 
 
        steering, an automatic transmission, and claimant is able to stop 
 
        to rest when he chooses. A fair reading of the record and the 
 
        expertise of this agency indicate that these conditions would not 
 
        be present if claimant were to attempt to return to his old truck 
 
        driving job or a similar job. Claimant's testimony that he could 
 
        not presently pass a Department of Transportation physical 
 
        examination to drive a truck is unrebutted in the record.
 
        
 
        A rating of permanent physical impairment is but one factor that 
 
        is used in determining industrial disability. Claimant's age is 
 
        also a factor. Claimant's age was such that retraining or further 
 
        education to rehabilitate him would not be practical. Claimant's 
 
        proximity to normal retirement age is also a proper 
 
        consideration. Claimant's stated plans for retirement are highly 
 
        subjective and potentially self-serving. Similarly, although much 
 
        of the record was devoted to these matters, claimant's financial 
 
        situation in regard to his pension and social security income, 
 
        and the question of whether he chose to retire or was forced to 
 
        retire by his injury, will be given little weight.
 
        
 
        Other factors in determining industrial disability include 
 
        claimant's education, work experience, motivation, and 
 
        qualifications. Claimant's education is limited to the tenth 
 
        grade. His work experience consists entirely of driving a truck 
 
        for all of his adult working life. Claimant has no other 
 
        transferable skills. Claimant did not seek alternative 
 
        employment.
 
        
 
        An employer's failure to provide suitable employment within an 
 
        employee's restrictions is also a factor in determining an award 
 
        for industrial disability. In the instant case, the employer 
 
        failed to provide light duty employment to claimant after his 
 
        injury. Although a light duty program was later instituted, it 
 
        was not put into place until shortly before the time of 
 
        claimant's retirement.
 
        
 
        SPEER v. SUPER VALU STORES, INC.
 
        Page 8
 

 
        
 
 
 
 
 
        
 
        
 
        Claimant argues on appeal that he is permanently totally 
 
        disabled, under either general permanent total disability 
 
        criteria or under the odd-lot doctrine. Claimant has failed to 
 
        show that he made appropriate efforts to seek employment after 
 
        his injury, and therefore cannot rely on the odd-lot doctrine. 
 
        Claimant is not permanently totally disabled under general 
 
        permanent total disability principles, in that the vocational 
 
        rehabilitation evidence indicates that claimant may be capable of 
 
        performing some light duty tasks. Nonlifting jobs are available 
 
        to claimant.
 
        
 
        Based on these and all other appropriate factors for determining 
 
        industrial disability, claimant is determined to have an 
 
        industrial disability of 50 percent.
 
        
 
                                 FINDINGS OF FACT
 
        
 
        1. Claimant was in the employ of Super Valu on April 11, 1985.
 
        
 
        2. Claimant's job on April 11, 1985, consisted of over-the-road 
 
        truck driving.
 
        
 
        3. On April 11, 1985, while performing his work for Super Valu, 
 
        claimant injured his right shoulder and continued to suffer 
 
        symptoms from either chronic tendonitis or an incomplete tear of 
 
        the rotator cuff caused by the injury.
 
        
 
        4. Prior to the work injury, claimant had no shoulder problems, 
 
        no physical impairments or ascertainable disabilities.
 
        
 
        5. Prior to the work injury, claimant was able to perform 
 
        physical tasks involving heavy lifting, repetitive lifting, 
 
        bending, twisting and stooping along with prolonged sitting.
 
        
 
        6. As a result of the work injury, claimant has suffered a 
 
        permanent partial impairment to his body as a whole and is 
 
        restricted by his physicians from heavy work and extensive use of 
 
        his right shoulder and arm.
 
        
 
        7. As a result of his functional impairment and physical 
 
        restrictions, claimant is unable to perform his normal work 
 
        activity as a truck driver or in any other position for which he 
 
        is best suited given his education and experience.
 
        
 
        8. Claimant's work history consists of regular gainful employment 
 
        in the type of work he can no longer perform.
 
        
 
        9. Claimant has suffered a loss in actual earnings from 
 
        employment due to his work injury.
 
        
 
        10. Claimant is now retired.
 
        
 
        SPEER v. SUPER VALU STORES, INC.
 
        Page 9
 
        
 
        
 
        11. Claimant was not offered continued employment at Super Valu 
 
        after the injury as a result of the work injury.
 
        
 
        12. Claimant was 63 years of age at the time of the hearing and 
 
        has only a tenth grade education.
 
        
 
        13. Claimant has low potential for successful vocational 
 
        rehabilitation.
 

 
        
 
 
 
 
 
        
 
        14. Due to his age, claimant's loss of earning capacity is not as 
 
        great as would be the case for a younger individual.
 
        
 
        15. As a result of his work injury, claimant has suffered a loss 
 
        of earning capacity in the amount of 50 percent.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
        Claimant has proven by a preponderance of the evidence that he is 
 
        entitled to permanent partial disability benefits for his work 
 
        injury of April 11, 1985.
 
        
 
        Claimant's present right shoulder condition is causally connected 
 
        to his work injury of April 11, 1985.
 
        
 
        As a result of his work injury of April 11, 1985, claimant has an 
 
        industrial disability of 50 percent.
 
        
 
        WHEREFORE, the decision of the deputy is affirmed.
 
        
 
                                      ORDER
 
                                                
 
        THEREFORE, it is ordered:
 
        
 
        That defendants are to pay unto claimant two hundred fifty (250) 
 
        weeks of permanent partial disability benefits at a rate of three 
 
        hundred ninety-six and 50/100 dollars ($396.50) per week from 
 
        January 7, 1986.
 
        
 
        That defendants shall pay accrued weekly benefits in a lump sum.
 
        
 
        That defendants shall pay interest on weekly benefits awarded 
 
        herein as set forth in Iowa Code section 85.30.
 
        
 
        That defendants are to be given credit for benefits previously 
 
        paid.
 
        
 
        That defendants shall pay the cost of this action pursuant to 
 
        Division of Industrial Services Rule 343-4.33 and specifically 
 
        defendants are taxed the following costs set forth in the 
 
        prehearing report: the sum of seventy-two and 00/100 dollars 
 
        ($72.00) for the Eishen Rehabilitation Services report; one 
 
        hundred fifty and 00/100 dollars ($150.00) as a fee to Jerome 
 
        Bashara,
 
        
 
        SPEER v. SUPER VALU STORES, INC.
 
        Page 10
 
        
 
        
 
        M.D., for his deposition; sum of one hundred four and 40/100 
 
        dollars ($104.40) for the court reporter of the deposition of 
 
        Jerome Bashara; and, forty-nine and 50/100 dollars ($49.50) 
 
        transcription cost for the deposition of Rhonda Hartley.
 
        
 
        That defendants shall file claim activity reports as required by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1(2).
 
        
 
        
 
        Signed and filed this 20th day of December, 1988.
 
        
 
        
 
        
 
                                            DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 

 
        
 
 
 
 
 
        
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         EUGENE W. SCHATTSCHNEIDER,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 792208
 
         JOE BRADLEY EQUIPMENT,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         UNIVERSAL UNDERWRITERS
 
         INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Eugene W. 
 
         Schattschneider, claimant, against Joe Bradley Equipment, 
 
         employer, and Universal Underwriters Insurance Company, insurance 
 
         carrier, for benefits as a result of an alleged injury of April 
 
         8, 1985.  A hearing was held in Mason City, Iowa, on April 1, 
 
         1987 and the case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant and LaVon 
 
         Schattschneider; claimant's exhibits 1 through 10; and 
 
         defendants' exhibits A and B. Both parties filed briefs.  
 
         Defendants' brief withdrew the section 85.39 issue.
 
         
 
              The parties stipulated that there is no dispute as to 
 
         temporary total and/or healing period benefits; that any 
 
         permanency benefits awarded would commence on September 6, 1985; 
 
         and that claimant's injury is scheduled.  The parties stated 
 
         other stipulations on the record.
 
         
 
                                  ISSUES
 
         
 
              The contested issues are:
 
         
 
               1)  The applicable rate of weekly compensation;
 
         
 
               2)  The amount of statutory interest owing, if any; and
 
         
 
         
 
              3)  Nature and extent of disability.  The fighting issue is 
 
         whether claimant's disability is isolated to claimant's right 
 
         hand or whether it extends to claimant's right arm (this is 
 
         obviously a fact question).
 
         
 
                            SUMMARY OF THE EVIDENCE
 

 
         
 
         
 
         
 
         SCHATTSCHNEIDER V. JOE BRADLEY EQUIPMENT
 
         Page   2
 
         
 
         
 
         
 
            The relevant evidence is mentioned in the parties' briefs.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  The standards to determine weekly rate of compensation 
 
         will now be determined.  The rate portion of claimant's brief 
 
         reads in part:
 
         
 
              The legal issue thus is whether the dependency exemption for 
 
              rate purposes is determined by actual principal dependency 
 
              [See 85.42(2): "A stepchild ... shall be regarded the same 
 
              as issue of the body only when the stepparent has actually 
 
              provided the principal support for such child."] or whether 
 
              the dependency status is related to tax considerations only 
 
              [See 85.61(10)(a)(b)].
 
         
 
              It is concluded that the alleged dependent's status for tax 
 
         purposes does not as a matter of law resolve the rate dependency 
 
         matter at issue here.  As a factual matter, it is determined that 
 
         the child in question (Shane) was dependent,for purposes of rate 
 
         computation,under the Iowa Workers' Compensation Act.  However, 
 
         the gross earnings aspect of the rate issue is determined 
 
         favorable to defendants in this action.  The parties shall 
 
         compute the rate in accordance with the above determinations.
 
         
 
              II. Regarding the question of statutory interest, 
 
         defendants' position on this issue as set out on page 2 of their 
 
         brief is found to be persuasive.
 
         
 
              III  The nature and extent of the disability issue will now 
 
         be resolved.  A finding of fact will be made that claimant's 
 
         stipulated work-related injury caused impairment to his right arm 
 
         rather than solely his right hand.  Dr. Bartolo's 37 percent 
 
         rating is found to be persuasive.  See Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985) (appropriate 
 
         actors for evaluating medical opinions are set out therein).
 
         
 
              1.  Claimant's stepson, Shane, was a dependent on April 81
 
         1985 
 
         
 
              2.   Claimant's injury of April 8, 1985 caused impairment to 
 
         claimant's right arm and not solely his right hand.
 
                     
 
              3.  Claimant's injury of April 8, 1985 caused claimant to 
 
         sustain a 37 percent permanent partial impairment to his right 
 
         arm.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              1.  The parties shall determine the appropriate rate of 
 
         weekly compensation in accordance with the provisions of this 
 
         decision.
 
         
 
              2.   The parties shall determine the amount of statutory 
 
         interest owing in accordance with the provisions of this 
 

 
         
 
         
 
         
 
         SCHATTSCHNEIDER V. JOE BRADLEY EQUIPMENT
 
         Page   3
 
         
 
         
 
         decision.
 
         
 
              3.  The parties shall compute the amount of weekly benefits 
 
         owing in accordance with the provisions of this decision.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay the weekly benefits described above.
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendants pay the costs of this action pursuant to 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants shall file claim activity reports pursuant 
 
         to Industrial Services Rule 343-3.1(2) as requested by this
 
         agency.
 
         
 
              Signed and filed this 15th day of July, 1987
 
         
 
         
 
         
 
         
 
                                             T.J. McSWEENEY
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         P.O. Box 679
 
         214 North Adams
 
         Mason City, Iowa 50401-0679
 
         
 
         Mr. Marvin E. Duckworth
 
         Attorney at Law 
 
         Terrace Center 
 
         Suite 111 2700 Grand Avenue
 
         Des Moines, Iowa 50312
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40; 3003
 
                                                 Filed 7-15-87
 
                                                 T. J. McSweeney
 
         
 
         _________________________________________________________________
 
         
 
         EUGENE W. SCHATTSCHNEIDER,
 
         
 
               Claimant,
 
                                                 File No. 792208
 
         VS.
 
         
 
         JOE BRADLEY EQUIPMENT,
 
                                               A R B I T R A T I 0 N
 
          
 
               Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         UNIVERSAL UNDERWRITERS
 
         INSURANCE COMPANY,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         _________________________________________________________________
 
         
 
         1402.40; 3003
 
         
 
              Held in arbitration that an alleged dependent's status for 
 
         tax purposes does not as a matter of law resolve the issue of 
 
         dependency under the Iowa Workers' Compensation Act.  The 
 
         question of dependency is a fact question to be determined by 
 
         this agency with tax status as a factor in this determination.
 
         
 
              The other fighting issue was whether claimant's disability 
 
         was limited to his right hand or whether it extended into his 
 
         right arm.  It was determined as a factual matter that the 
 
         disability affected claimant's right arm and not just his right 
 
         hand.
 
 
 
         
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LINDA CAMPBELL,
 
        
 
             Claimant,
 
             
 
        vs.                                       File No. 792261
 
        
 
        VIKING PUMP-HOUDAILLE, INC.,           A R B I T R A T I O N
 
        
 
            Employer,                            D E C I S I O N
 
        
 
        and
 
                                                      F I L E D
 
        LIBERTY MUTUAL INSURANCE
 
        COMPANY,                                     APR 25 1989
 
        
 
             Insurance Carrier,                  INDUSTRIAL SERVICES
 
             Defendants.
 
             
 
             
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Linda 
 
             Campbell against her former employer, Viking Pump-Houdaille, 
 
             Inc., and Liberty Mutual Insurance Company, its insurance 
 
             carrier, based upon an injury that occurred on April 10, 1985.
 
        
 
            The case was heard and fully submitted at Waterloo, Iowa on 
 
        July 21, 1988. The record in the proceeding consists of 
 
        testimony from Linda Campbell, Yvonne Love and Sanomia Gordon. 
 
        The record also contains claimant's exhibits 1 through 23 and 35 
 
        through 38. The record also contains defendants' exhibits A 
 
        through W.
 
        
 
                                      ISSUES
 
        
 
             The only issue presented for determination is the extent of 
 
             permanent partial disability which was proximately caused by the 
 
             April 10, 1985 injury. The parties stipulated that all healing 
 
             period compensation had been previously paid and that 90 6/7 
 
             weeks of compensation for permanent partial disability had 
 
             likewise been previously paid, all at the correct rate of $259.82 
 
             per week. It was stipulated that the entitlement to permanent 
 
             partial disability had commenced on December 1, 1985.
 
        
 
                                 SUMMARY OF EVIDENCE
 
        
 
             The following is a summary of evidence presented in this 
 
             case. Of all the evidence received at the hearing, only that 
 
             considered most pertinent to this decision is discussed. 
 
             Conclusions about what the evidence showed are inevitable with 
 
             any summarization. The conclusions in the following summary 
 
             should be considered to be preliminary findings of fact.
 
        
 
             Linda Campbell is a 40-year-old lady.with two children. She 
 
             graduated from high school in 1966.
 
        
 
            Claimant commenced employment in September, 1966 working as 
 
        a sales clerk in a discount store. She worked in the kitchen of 
 

 
        
 
 
 
 
 
        a Waterloo hospital for approximately two and one-half years. 
 
        She worked as a nurse's aide for approximately one year. In 
 
        approximately 1971, claimant worked as a teacher's aide. 
 
        Claimant has performed work as a part-time school bus driver. 
 
        She has worked as a teller and performed clerical work in a bank. 
 
        She has also performed other jobs as a cashier and nurse's aide.
 
        
 
            In 1975, claimant graduated from a licensed practical nurse 
 
        course. She made three attempts to complete the licensing test, 
 
        but was unsuccessful.
 
        
 
            Claimant commenced employment with Viking Pump-Houdaille, 
 
        Inc., on April 12, 1978. She worked in the office for 
 
        approximately one year and then moved into the plant. She has 
 
        performed a number of positions including operating the shaker, 
 
        sandblaster, benchwork, tracer machine, deburring, rotor mill 
 
        machine, spindle lathe and others.
 
        
 
            Claimant testified that, on April 10, 1985, she was placing 
 
        a part into the spindle lathe machine and that while tightening a 
 
        knob, her hand slipped, she jerked, caught herself on the machine 
 
        and felt pain in her midback below the shoulder blades. Claimant 
 
        was taken to Sartori Hospital where she was treated (claimant's 
 
        exhibit 26). Claimant stated that she was off work a couple days 
 
        and then returned to operate a rotor mill. Claimant testified 
 
        that the job required her to lift containers of shavings. She 
 
        stated that she was not able to do it, experienced pain in her 
 
        midback and then received treatment from Arnold E. Delbridge, 
 
        M.D.
 
        
 
            Claimant testified that she was treated with therapy, 
 
        medication and home exercises, but that she continued to have 
 
        pain in her midback under her shoulder blades and shoulders. 
 
        Claimant testified that she also had sharp pain shooting down her 
 
        right leg. Claimant testified that, in July, 1985, she returned 
 
        to work for a couple of weeks, but again injured her back while 
 
        lifting shavings from the rotor mill (claimant's exhibits l-D; 
 
        27). Claimant was then taken off work and has not since returned 
 
        to work at Viking Pump-Houdaille, Inc.
 
        
 
            Dr. Delbridge referred claimant to James B. Worrell, M.D., a 
 
        neurologist, for an evaluation. Dr. Worrell concluded that 
 
        claimant did not have any clear-cut neurological deficit and that 
 
        there was nothing to suggest a spinal cord syndrome or a disorder 
 
        like multiple sclerosis. He indicated that the situation was 
 
        becoming chronic and his only suggestion for further treatment 
 
        was a myelogram in order to be certain that there was no disc 
 
        protrusion causing claimant's complaints (claimant's exhibit 30).
 
        
 
             Commencing in early 1986, claimant was provided with 
 
             assistance from a vocational consultant affiliated with 
 
             Management Consulting and Rehabilitation Services. Claimant 
 
             displayed little initiative in following up on the 
 
             recommendations made by the consultants. The file was eventually 
 
             closed in mid-1987 without having returned claimant to gainful 
 
             employment (defendants' exhibits I through W). Claimant 
 
             testified that the consultants directed her to seek work, but did 
 
             not tell her where or what type of work she should seek. 
 
             Claimant related that a consultant set up an appointment with the 
 
             state vocational rehabilitation service, but that when claimant 
 
             attended, she was told that the services were not available 
 
             because claimant did not have a doctor's statement confirming 
 
             that she could actually work. Claimant stated that Dr. Delbridge 
 
             has never released her to return to work. Claimant recalled 
 
             discussing a typing class with the consultant. Claimant stated 
 
             that no funding was available and denied declining to take the 
 

 
        
 
 
 
 
 
             training.
 
        
 
             Claimant testified that she went to Job Service in 1987 to 
 
             seek employment. She stated that she filled out applications, but 
 
             was not hired. Claimant testified that she has also sought 
 
             employment at J. C. Penney, Hy-Vee, the local school system, a 
 
             bank and Hawkeye Tech, but that she was not hired. Claimant 
 
             stated that she does not think that she could endure working as a 
 
             cashier or sales clerk due to the standing which it requires. 
 
             She felt that she could perform bookkeeping work, but could not 
 
             work as a bank teller. Claimant stated that for a period of 
 
             approximately two years following the injury, she sought work at 
 
             only four places. She stated that she considered herself to 
 
             still be employed by Viking Pump during part of the time and that 
 
             she was discouraged. Claimant related that the cost of child 
 
             care limited her ability to seek work.
 
             
 
             Claimant testified that she obtained a position at Love 
 
             Enterprises, Inc., where she worked approximately 30 hours per 
 
             week. Claimant stated that typing and sitting were problems and 
 
             that she experienced numbness and tingling in her legs and sharp 
 
             pain in her midback under the shoulder blades. Claimant stated 
 
             that she missed some work due to her physical problems and that 
 
             her employment was terminated because she was unable to complete 
 
             the work that was assigned.
 
             
 
             Yvonne Love, part owner of Love Enterprises, Inc., testified 
 
             that she has been acquainted with claimant for years and that, 
 
             when they needed extra help in mid-May, 1987, she called claimant 
 
             and that claimant was eager to commence work. Love testified 
 
             that claimant's job was to input tickets into a computer, answer 
 
             the phone and perform general receptionist-type duties. Love 
 
             stated that claimant had problems with discomfort, took 
 
             medication and complained of her back bothering. Love stated 
 
             that she would not have hired claimant if she had known of 
 
             claimant's back problem. Love purchased a new chair, desk and 
 
             computer screen in an effort to make claimant more-comfortable.
 
             
 
             Love testified that claimant was hired to work 30-40 hours 
 
             per week and that claimant was expected to be at work daily. She 
 
             stated that, as time went on, claimant began to miss work and 
 
             take long lunches. Love stated that claimant's physical problems 
 
             interfered with her ability to do her job and that claimant was 
 
             unable to keep up. Love testified that everything claimant did 
 
             slowed down and that they eventually had to terminate her 
 
             employment.
 
             
 
             Claimant entered a one-year cosmetology course in February, 
 
             1988. She stated that the initial seven weeks were spent in the 
 
             classroom, but that then the course moved to include work on 
 
             clients. Claimant complained that, at times, she loses grip in 
 
             her hands and that the instructor needs to complete the job. 
 
             Claimant feels that she will be unable to complete the course 
 
             because her instructor has told her that she needs to be able to 
 
             finish the jobs. Claimant stated that the job market for 
 
             beauticians is not good. She indicated that it pays 
 
             approximately $30-$40 per week plus a 50% commission and provides 
 
             no fringe benefits.
 
             
 
             Claimant testified that she enjoyed her work at Viking Pump 
 
             and that it provided good pay and good benefits. She stated that 
 
             at the time of injury, she was earning $9.00 or $10.00 per hour. 
 
             Claimant testified that, in 1986, she received a letter from 
 
             Viking Pump which terminated her employment. She was not offered 
 
             an opportunity to move back to an office job with the company.
 
             
 

 
        
 
 
 
 
 
             Claimant testified that, at the current time, she has 
 
             problems with her legs giving out without warning. She stated 
 
             that it has happened when she was in church, while getting into a 
 
             car and also at the cosmetology school. Claimant stated that her 
 
             back goes out without warning and that there is no pattern in the 
 
             occurrences. Claimant related that, when performing beautician 
 
             work and also when she performed typing for Love Enterprises, she 
 
             experienced a shooting pain running from above her elbow down to 
 
             her fingers and that she has also at times experienced shooting 
 
             pain in the arm and hands which causes numbness which makes her 
 
             unable to move her fingers.
 
        
 
             Claimant testified that she continues to see Dr. Delbridge 
 
             and has been prescribed medications and exercises. She stated 
 
             that the pain and numbness and her other symptoms have not 
 
             improved since April, 1985. She stated that Dr. Delbridge 
 
             prescribed a back brace which she wears every day from 8:00 until 
 
             5:00 which helps, but does not completely remove her symptoms.
 
             
 
             Claimant stated that she has problems caring for her 
 
             daughter and that there are some mornings when she is unable to 
 
             get out of bed. Claimant stated that she has difficulty 
 
             performing housework and that her teenage son helps a lot.
 
        
 
            Claimant related that, when she was tested at a clinic in 
 
        1986, she was unable to grip the bar well and was also unable to 
 
        raise a bar under her feet. Claimant stated that no one has 
 
        discussed the results of her work fitness test with her.
 
        
 
            Exhibits 13 and 18 contain a reasonably accurate 
 
        summarization of claimant's medical history as known by Dr. 
 
        Delbridge commencing in 1982. Exhibit C-3 contains records of 
 
        claimant's hospitalization for what was diagnosed as an 
 
        adjustment disorder with mixed emotional features. Exhibit D 
 
        shows that claimant was the victim of an assault in October, 
 
        1981, but the records present no indication that the injuries 
 
        sustained in that incident were permanent in any nature. 
 
        Claimant has a history of back spasms from 1979. In 1980, she 
 
        was seen for complaints regarding her left elbow.
 
        
 
            On April 21, 1982, claimant was injured while working at 
 
        Viking Pump. Dr. Delbridge concluded that she had no permanent 
 
        disability as a result of that injury. A few days after Dr. 
 
        Delbridge made that determination, claimant was involved in a 
 
        motor vehicle accident. Dr. Delbridge concluded that claimant 
 
        had a four percent impairment of the whole person as a result of 
 
        the injuries sustained in that accident. The injuries were 
 
        described by the treating physicians to have been a sprain and 
 
        strain of cervical musculature (claimant's exhibits 5 and 29; 
 
        defendants' exhibit E). Following that accident, claimant had 
 
        continuing complaints for a considerable amount of time for which 
 
        she sought treatment from Dr. Delbridge and received physical 
 
        therapy (claimant's exhibit 36).
 
        
 
            In March, 1986, claimant was evaluated by J. Noel 
 
        Robitaille, M.D. The only positive finding was some limitation 
 
        of range of motion of the right leg. The report states:
 
        
 
             As far as I could see she has held a few different jobs for 
 
             short periods only. It is hard to believe that the small 
 
             weight she was carrying at Viking Pump would, by itself, 
 
             cause her problems (5-6 pounds of metal shavings).
 
             
 
        (Exhibit 37)
 
        
 
             Claimant was evaluated at the Iowa Work Fitness Clinic. 
 

 
        
 
 
 
 
 
             Claimant's chest level lift and semi-squat lift showed the 
 
             claimant to be so weak that 99% of the women in the United States 
 
             would have achieved a higher result. The report indicates that 
 
             it was difficult to obtain an accurate reading because of "giving 
 
             out." Results from the stress vector analysis suggested that 
 
             claimant somatizes functional complaints and might benefit from 
 
             mental health consultation. In the report, Dr. Delbridge 
 
             indicated that claimant is likely to fail in any but the most 
 
             sedentary jobs and that, even in sedentary jobs, she may perform 
 
             irregularly because of her tendency to give up when even minimal 
 
             stress is applied (claimant's exhibit 14).
 
        
 
             Dr. Delbridge has evaluated claimant for permanent 
 
             disability and concluded that she has a 12% impairment of the 
 
             whole body, of which 4% is related to the 1982 automobile 
 
             accident and 8% is related to the April 10, 1985 job injury 
 
             (claimant's exhibits 13 and 18).
 
        
 
            Sanomia Gordon, claimant's mother, testified that, since the 
 
        1985 injury, claimant has had difficulty with falling. Gordon 
 
        stated that neither she nor claimant's father have any back 
 
        problems. Gordon testified that, since the injury, claimant 
 
        appears tired and to be in discomfort. She stated that claimant 
 
        did not manifest those problems prior to the spring of 1985.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             The only issue presented for determination is the degree of 
 
             permanent disability which resulted from the April 10, 1985 
 
             injury.
 
        
 
            As claimant has an impairment to the body as a whole, an 
 
        industrial disability has been sustained. Industrial disability 
 
        was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
        593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
        that the legislature intended the term 'disability' to mean 
 
        'industrial disability' or loss of earning capacity and not a 
 
        mere 'functional disability' to be computed in the terms of 
 
        percentages of the total physical and mental ability of a normal 
 
        man."
 
        
 
            Functional impairment is an element to be considered in 
 
        determining industrial disability which is the reduction of 
 
        earning capacity, but consideration must also be given to the 
 
        injured employee's age, education, qualifications, experience and 
 
        inability to engage in employment for which he is fitted. Olson 
 
        v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
        257 (1963).
 
        
 
            Industrial disability or loss of earning capacity is a 
 
        concept that is quite similar to impairment of earning capacity, 
 
        an element of damage in a tort case. Impairment of physical 
 
        capacity creates an inference of lessened earning capacity. The 
 
        basic element to be determined, however, is the reduction in 
 
        value of the general earning capacity of the person, rather than 
 
        the loss of wages or earnings in a specific occupation. 
 
        Post-injury earnings create a presumption of earning capacity. 
 
        The earnings are not synonymous with earning capacity and the 
 
        presumption may be rebutted by evidence showing the earnings to 
 
        be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 
 
        (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
        516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
        34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
        Law, sections 57.21 and 57.31.
 
        
 
             Claimant's symptoms and complaints are greatly out of 
 

 
        
 
 
 
 
 
             proportion to the physical objective findings which have been 
 
             identified by any of the physicians who have examined her. 
 
             According to Dr. Delbridge, whose assessment of the case is 
 
             accepted as being correct, claimant had no permanent impairment 
 
             prior to the time of the automobile accident which occurred in 
 
             1982. It is also interesting to note that, when the layoffs, 
 
             injuries and claimant's pregnancy are taken into account, 
 
             claimant actually worked very little for this employer subsequent 
 
             to the earlier 1982 injury. There is certainly evidence which 
 
             would suggest that claimant has some emotional component to the 
 
             degree of her symptoms and complaints, but there is no evidence 
 
             in the record which attributes any emotional disorder to the 
 
             April 10, 1985 injury.
 
        
 
            It appears unlikely that claimant will be successful in her 
 
        beautician training or in a career as a beautician. The work is 
 
        certainly every bit as stressful upon the hands and arms as 
 
        typing. It requires standing.
 
        
 
            There is no suggestion in the record regarding why an injury 
 
        to claimant's thoracic spine would produce problems with her 
 
        legs. In short, the magnitude of claimant's complaints cannot be 
 
        attributed to the injuries she sustained on April 10, 1985.
 
        
 
            Claimant did, however, sustain an injury on that date. Dr. 
 
        Delbridge has assigned an impairment to that injury. While 
 
        claimant's current employment status is not a reliable indicator 
 
        of her actual earning capacity or of the loss of earning capacity 
 
        that resulted from the April 10, 1985 injury, it appears as 
 
        though she did sustain some permanent disability from the 
 
        incident. When all the material factors of industrial disability 
 
        are considered, it is determined that Linda Campbell sustained a 
 
        20% loss of her earning capacity, and a 20% permanent partial 
 
        disability, as a result of the injuries she sustained at her 
 
        place of employment on April 10, 1985.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             1. Claimant sustained some permanent impairment as a result 
 
             of the injuries she sustained on April 10, 1985, but her symptoms 
 
             and complaints are greatly out of proportion to the physical 
 
             impairment which has been identified by the physicians who have 
 
             treated or evaluated her.
 
        
 
            2. Claimant's symptoms and complaints appear to have had 
 
        their onset in 1982.
 
        
 
             3. The assessment of this case made by Arnold E. Delbridge, 
 
             M.D., is accepted as being correct.
 
        
 
            4. Claimant's earnings, or lack thereof, are not a reliable 
 
        indicator of her earning capacity.
 
        
 
            5. Linda Campbell sustained a 20% permanent loss of her 
 
        earning capacity as a result of the injuries she sustained on 
 
        April 10, 1985.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             1. This agency has jurisdiction of the subject matter of 
 
             this proceeding and its parties.
 
        
 
            2. Claimant sustained a 20% permanent partial disability 
 
        that was proximately caused by the injuries she sustained on 
 
        April 10, 1985 which entitles her to receive 100 weeks of 
 
        compensation under the provisions of Iowa Code section 
 

 
        
 
 
 
 
 
        85.34(2)(u).
 
        
 
                                      ORDER
 
        
 
             IT IS THEREFORE ORDERED that defendants pay claimant one 
 
             hundred (100) weeks of compensation for permanent partial 
 
             disability at the stipulated rate of two hundred fifty-nine and 
 
             82/100 dollars ($259.82) per week payable commencing December 1, 
 
             1985.
 
        
 
            IT IS FURTHER ORDERED that defendants receive full credit 
 
        for the ninety and six-sevenths (90 6/7) weeks of compensation 
 
        for permanent partial disability which was previously paid prior 
 
        to hearing. Defendants shall pay the remaining nine and 
 
        one-seventh (9 1/7) weeks in a lump sum together with interest 
 
        computed from the date each payment came due pursuant to Iowa 
 
        Code section 85.30.
 
        
 
            IT IS FURTHER ORDERED that the costs of this proceeding are 
 
        assessed against defendants pursuant to Division of Industrial 
 
        Services Rule 343-4.33.
 
        
 
            IT IS FURTHER ORDERED that defendants file Claim Activity 
 
        Reports as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
            Signed and filed this 25th day of April, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
                                       MICHAEL G. TRIER
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Edward J. Gallagher, Jr.
 
        Ms. Cynthia Scherrman
 
        Attorneys at Law
 
        405 East Fifth Street
 
        P.O. Box 2615
 
        Waterloo, Iowa 50704
 
        
 
        Mr. Jeffrey J. Greenwood
 
        Attorney at Law
 
        528 West 4th Street
 
        P.O. Box 1200
 
        Waterloo, Iowa 50704
 
        
 
        
 
 
         
 
 
 
 
 
 
 
 
 
         
 
          BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
-------------------------------------------------------         
 
LINDA CAMPBELL, 
 
         
 
     Claimant,                  File No. 792261
 
         
 
vs.        
 
         
 
VIKING PUMP HOUDAILLE,           R E V I E W -
 
         
 
     Employer,                 R E O P E N I N G
 
         
 
and                             D E C I S I O N
 
         
 
LIBERTY MUTUAL, 
 
         
 
     Insurance Carrier,  
 
     Defendants.    
 
-------------------------------------------------------------         
 
                  STATEMENT OF THE CASE
 
         
 
     This is a proceeding in review-reopening brought by 
 
claimant, Linda Campbell, against her former employer, 
 
Viking Pump Houdaille, and its insurance carrier, Liberty 
 
Mutual Insurance Company.    
 
         
 
                    
 
         
 

 
         
 
 
 
 
 
     Attached to this claim is another claim made by former 
 
attorney John Behnke.  Mr. Behnke seeks payment of attorney 
 
fees totaling $1,367.08.   Mr. Behnke filed a petition, as 
 
required under Iowa Code section 86.39 and 
 
343 IAC 4.1.
 
         
 
     A hearing for both the review-reopening proceeding and 
 
the attorney fee dispute was held on October 19, 1994 at 
 
Waterloo, Iowa.  The evidence in the case consists of 
 
testimony of Linda Campbell and John Behnke; and, 
 
defendants' exhibits A-E. 
 
         
 
                           ISSUE
 
         
 
     The parties have submitted the following issue for 
 
resolution:
 
         
 
     1.  Whether claimant is entitled to medical benefits, 
 
     as governed by Iowa Code section 85.27; and,
 
         
 
     2.  Whether attorney fees should be awarded.
 
         
 
                  FINDINGS OF FACT
 
         
 
     The undersigned deputy, having reviewed all of the 
 
evidence received, finds the following facts:
 
         
 
    Claimant sustained a work-related injury to her low 
 
back in April of 1985 while working for the defendant 
 
employer.  Her injury occurred when she was 
 
placing a part into a spindle lathe machine.  While 
 
tightening the knob, her hand slipped, and she caught 
 
herself on the machine and felt pain in her mid-back, below 
 
         
 

 
         
 
 
 
 
 
 
 
the shoulder blade area.  (See, arbitration decision, filed 
 
April 25, 1989.)
 
         
 
     Claimant, Linda Campbell, was terminated from her 
 
employment with Viking Pump Houdaille in 1986.  
 
         
 
     Since that time, she has worked as a cosmetologist for 
 
J.C. Penney, and currently works as a teacher associate for 
 
Waterloo Community Schools, a position she has held since 
 
1990.  Her duties as such include supervising the 
 
playground, checking paperwork and providing overall 
 
assistance to teachers.  
 
         
 
     Recently, claimant sought medical treatment from a Dr. 
 
Federhofer and David Poe, M.D.  Dr. Poe treated her with 
 
medications and outpatient therapy from March to November of 
 
1992.  He indicated that she had low back pain, mid-thoracic 
 
pain and thigh pain of an undetermined cause.  He thought 
 
she probably had degenerative disc disease.  (Defendants' 
 
Ex. A, p. 2)  The record does not contain any notes from Dr. 
 
Federhofer, but claimant testified that in September of 
 
1993, she received three shots to treat her low back.  
 
Claimant provided no copies of any medical bills, but 
 
estimated that she had incurred bills totaling $484.00 for 
 
Dr. Federhofer and $125.00 from Dr. Poe.  
 
         
 
     Claimant also testified that while working as a 
 
cosmetologist, her back sometimes hurt due to the amount of 
 
standing she had to do.  She also testified that since 
 
leaving employment with Viking Pump, she has had an episode 
 
of falling down the stairs.  
 
         
 
                  ANALYSIS AND CONCLUSIONS OF LAW
 
         
 

 
         
 
 
 
 
 
 
 
     The first issue to address is whether claimant is 
 
entitled to medical benefits, as governed by Iowa Code 
 
section 85.27. 
 
         
 
    The party who would suffer loss if an issue were not 
 
established has the burden of proving that issue by a 
 
preponderance of the evidence.  Iowa R. App. P. 14(f).
 
         
 
     The question of causal connection is essentially within 
 
the domain of expert testimony.  The expert medical evidence 
 
must be considered with all other evidence introduced 
 
bearing on the causal connection between the injury and the 
 
disability.  The weight to be given to any expert opinion is 
 
determined by the finder of fact and may be affected by the 
 
accuracy of the facts relied upon by the expert as well as 
 
other surrounding circumstances.  The expert opinion may be 
 
accepted or rejected, in whole or in part.  Sondag v. Ferris 
 
Hardware, 220 N.W.2d 903 (Iowa 1974); Anderson v. Oscar 
 
Mayer & Co., 217 N.W.2d 531 (Iowa 1974); Bodish v. Fischer, 
 
Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
     The employer shall furnish reasonable surgical, 
 
medical, dental, osteopathic, chiropractic, podiatric, 
 
physical rehabilitation, nursing, ambulance and hospital 
 
services and supplies for all conditions compensable under 
 
the workers' compensation law.  The employer shall also 
 
allow reasonable and necessary transportation expenses 
 
incurred for those services.  The employer has the right to 
 
choose the provider of care, except where the employer has 
 
denied liability for the injury.  Iowa Code section 85.27.  
 
Holbert v. Townsend Engineering Co., Thirty-second Biennial 
 
Report of the Industrial Commissioner 78 (Review-reopen 
 
         
 

 
         
 
 
 
 
 
 
 
1975).
 
         
 
     Claimant sustained a work-related injury in April of 
 
1985.  
 
         
 
     As a result, she is entitled to medical benefits for 
 
treatment of the injury for life, if she can prove that the 
 
treatment is necessary to treat the work injury.
 
         
 
     However, if the employer denies that the treatment was 
 
necessitated by the work injury, claimant must show by a 
 
preponderance of the evidence that the treatment was 
 
reasonable and necessary to treat her work-related injury. 
 
         
 
     Unfortunately, claimant has failed to meet her burden 
 
of proof.  Claimant sustained an injury to her mid-back, or 
 
the  thoracic area of her spine.  Although some of the 
 
treatment was for her thoracic pain, she was also treated 
 
for low back and thigh pain.  Dr. Poe indicates that the 
 
cause of the pain is unknown.  Most likely it is caused by 
 
degenerative disc disease.
 
         
 
     Claimant has worked for several employers since working 
 
for the defendant employer.  She has also had at least one 
 
fall which could have produced, or aggravated an existing 
 
back condition.  Nothing in the record supports a finding 
 
that the treatment she has received was necessary to treat 
 
the April 1985 injury.
 
         
 
     As a result, claimant takes nothing from these 
 
proceedings, as she has not been able to prove by a 
 
preponderance of the evidence that the treatment was for her 
 
1985 work injury. 
 
         
 

 
         
 
 
 
 
 
 
 
 
 
     With respect to the attorney fees sought by Mr. Behnke, 
 
a  the contract, signed by claimant reads as follows:
 
         
 
          Linda Campbell, first party, offers to 
 
         employ on the following terms John E. Behnke, 
 
         second party, to represent her for workers' 
 
         compensation benefits from an accident while 
 
         employed at Viking Pump and second party 
 
         accepts the offer.
 
         
 
     First party shall pay to second party as 
 
compensation one-half (50%) of all benefits paid 
 
to her and all out-of-pocket expenses paid by 
 
second party.  In the event of appeal, this 
 
contract is subject to renegotion.
 
         
 
     Accident date:  4/18/85
 
         
 
     Ms. Campbell acknowledged that she signed the contract. 
 
         
 
     Mr. Behnke also submitted an itemized account of the 
 
amount of time he had spent on the case from December 1, 
 
1991 through September 30, 1992.  The petition for review-
 
reopening was filed on April 20, 1992.
 
         
 
     Mr. Behnke requests $1,367.08 in attorney's fees, based 
 
on an hourly rate of $85.00 per hour, and a total of 16.083 
 
hours spent on the case. 
 
         
 
     Ms. Campbell states she did not agree to an hourly fee 
 
of $85.00.  The contract between the two parties does not 
 
designate an hourly fee. 
 
         
 

 
         
 
 
 
 
 
 
 
     Claimant has not prevailed in the case, and no award 
 
has been made.  The contract does not designate an hourly 
 
rate in the event claimant did not prevail in the case. 
 
         
 
     As a result, Mr. Behnke is not awarded any attorney 
 
fees.
 
         
 
                             ORDER
 
         
 
     THEREFORE, it is ordered:
 
         
 
     That claimant, Linda Campbell, takes nothing from these 
 
proceedings. 
 
         
 
     That Mr. Behnke is not awarded any attorney fees. 
 
         
 
     Signed and filed this ____ day of November, 1994.
 
         
 
                  
 
         
 
                  
 
         
 
                        
 
         
 
                          ________________________________
 
                          PATRICIA J. LANTZ
 
                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
                  
 
         
 
Copies To:
 
         
 
Ms Linda Campbell
 
252 Jackson St
 
Waterloo IA 50702
 
CERTIFIED & REGULAR MAIL
 
         
 

 
         
 
 
 
 
 
 
 
 
 
Mr Kevin R Rogers
 
Mr Jeffrey Greenwood
 
Attorneys at Law
 
528 w Fourth St
 
P O Box 1200
 
Waterloo IA 50704
 
         
 
Mr John E Behnke
 
Attorney at Law
 
P O Box 296
 
Parkersburg IA 50065
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                   5-1100
 
                                   Filed November 9, 1994
 
                                   Patricia J. Lantz
 
         
 
              BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
-------------------------------------------------------------         
 
LINDA CAMPBELL, 
 
         
 
     Claimant,                      File No. 792261
 
         
 
vs.        
 
         
 
VIKING PUMP HOUDAILLE,                R E V I E W -
 
         
 
     Employer,                     R E O P E N I N G
 
         
 
and                                 D E C I S I O N
 
         
 
LIBERTY MUTUAL, 
 
         
 
     Insurance Carrier,  
 
     Defendants.    
 
-------------------------------------------------------------         
 
5-1100
 
         
 
Claimant failed to prove her case by a preponderance of the 
 
evidence.
 
         
 
         
 
         
 
 
        
 
 
 
 
 
        
 
        
 
                                            51803
 
                                            Filed April 25, 1989
 
                                            MICHAEL G. TRIER
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        LINDA CAMPBELL,
 
        
 
             Claimant,
 
             
 
        vs.                                               File No. 
 
        792261
 
        
 
        VIKING PUMP-HOUDAILLE, INC.,                      A R B I T R A 
 
        T I O N
 
        
 
            Employer,                                    D E C I S I O 
 
        N
 
        
 
        and
 
        
 
        LIBERTY MUTUAL INSURANCE
 
        COMPANY,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        51803
 
        
 
             Claimant, whose symptoms and complaints were greatly out of 
 
             proportion to the impairment and objective findings made by her 
 
             physicians, was awarded 20% permanent partial disability. If her 
 
             complaints had been credible, she would have likely been 
 
             considered totally disabled.
 
             
 
        
 
 
        
 
 
 
 
 
                                                
 
        
 
        
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSION
 
        
 
        
 
        BEVERLY ALM,
 
        
 
            Claimant,
 
        
 
        vs.                                     File No. 792278
 
        
 
        GLENWOOD STATE HOSPITAL SCHOOL       A R B I T R A T I O N
 
        
 
             Employer,                          D E C I S I O N
 
        
 
        and                                        F I L E D
 
        
 
        STATE OF IOWA,                           NOV. 20, 1989
 
        
 
             Insurance Carrier,               INDUSTRIAL SERVICES
 
             Defendants.
 
             
 
             
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Beverly Alm, 
 
             claimant, against Glenwood State Hospital School, employer, and 
 
             State of Iowa, insurance carrier, defendants for benefits as the 
 
             result of an injury that occurred on April 10, 1985. A hearing 
 
             was held at Council Bluffs, Iowa, on July 5, 1988, and the case 
 
             was fully submitted at the close of the hearing. Claimant was 
 
             represented by Kenneth Sacks. Defendants were represented by 
 
             Greg Knoploh. The record consists of the testimony of Beverly 
 
             Alm, claimant; Robert Wallace, treatment program administrator; 
 
             claimant's exhibits 1 through 22 and defendants' exhibits A 
 
             through G. The deputy ordered a transcript of the hearing. Both 
 
             attorneys submitted excellent posthearing briefs. Many of the 
 
             exhibits appeared in evidence several times. The attorneys 
 
             apparently did not meet prior to hearing as directed by paragraph 
 
             10(2) of the hearing assignment order and prepare a joint exhibit 
 
             list. Claimant's exhibits also showed the same documents two or 
 
             three times. Orderly exhibits facilitate the decision of a case.
 
        
 
                                      STIPULATIONS
 
        
 
             The parties stipulated to the following matters:
 
        
 
            That an employer-employee relationship existed between 
 
        claimant and employer at the time of the injury.
 
        
 
            That claimant sustained an injury on April 10, 1985, that 
 
        arose out of and in the course of employment with employer.
 
        
 
            That the injury was the cause of temporary disability during 
 
        a period of recovery.
 
        
 
             That the time off work for which claimant seeks temporary 
 
             disability benefits is from April 10, 1985, up to and continuing 
 
             beyond the date of the hearing which was held on July 5, 1988.
 
        
 
            That the type of permanent disability, if the injury is 
 
        found to be a cause of permanent disability, is industrial 
 

 
        
 
 
 
 
 
        disability to the body as a whole.
 
        
 
            That the rate of compensation, in the event of an award, is 
 
        $188.89 per week.
 
        
 
            That the providers of medical services and supplies would 
 
        testify: (l) that the fees charged were fair and reasonable and 
 
        (2) that the treatment was reasonable and necessary medical 
 
        treatment of the work injury and defendants are not offering 
 
        contrary evidence.
 
        
 
            That causal connection of the medical expenses to treatment 
 
        for a medical condition upon which claimant is now basing her 
 
        claim is admitted, but the causal connection of this condition to 
 
        the work injury remains an issue to be decided in these 
 
        proceedings.
 
        
 
            That defendants are entitled to a credit under Iowa Code 
 
        section 85.38(2) for the payment of $1,753 in medical expenses 
 
        prior to the hearing under an employee nonoccupational group 
 
        health plan.
 
        
 
            That defendants are entitled to a credit for $227 in medical 
 
        expenses paid prior to hearing as workers' compensation medical 
 
        benefits.
 
        
 
            That defendants are entitled to a credit for 12.143 weeks 
 
        workers' compensation benefits paid to claimant prior to hearing 
 
        at the rate of $188.89 per week in the total amount of $2,293.30.
 
        
 
            That there are no bifurcated claims.
 
        
 
                                      ISSUES
 
        
 
             The parties submitted the following issues for determination 
 
             at the time of the hearing:
 
        
 
            Whether claimant is entitled to temporary disability 
 
        benefits, and if so, the nature and extent of benefits to which 
 
        she is entitled.
 
        
 
            Whether the injury was the cause of permanent disability.
 
        
 
            Whether claimant is entitled to permanent disability 
 
        benefits, and if so, the extent of benefits to which she is 
 
        entitled.
 
        
 
             Whether claimant is entitled to medical benefits.
 
             
 
                            SUMMARY OF THE EVIDENCE
 
        
 
             Claimant is 23 years old, married, and the mother of two 
 
             children, both of whom were born after the injury. Jacob was 
 
             born October 2, 1985 and Jordan was born on February 24, 1987. 
 
             (transcript pages 18, 19 and 66). Claimant testified that the 
 
             recovery from this injury of April 10, 1985, was affected by 
 
             these two pregnancies. Claimant graduated from high school in 
 
             1983, but obtained no further education or training after that. 
 
             Past employments include working as a nurse's aide from 1980 to 
 
             1984, private care of an elderly person and supervising children 
 
             at a summer camp. Claimant denied and there is no evidence of 
 
             any injuries prior to this injury or subsequent to it (tr. pp. 
 
             21, 64 & 65).
 
        
 
            Claimant started to work for employer on May 18, 1984, as a 
 
        resident treatment worker (RTW) and was terminated from this 
 

 
        
 
 
 
 
 
        employment on January 10, 1986. Her duties involved the daily 
 
        care of 16 behaviorily disturbed young females between the ages 
 
        of 18 and 25. Daily care entailed feeding, walking, bathing, 
 
        entertaining and putting the patients to bed.
 
        
 
            Usually three or four RTW's are assigned to a house. On the 
 
        date of the injury, April 10, 1985, at approximately 4:00 p.m., 
 
        only claimant and Audrey Goettsche were on duty (tr. pp. 20-26). 
 
        A resident, who weighed 180 pounds and was 5' 11" tall, acted 
 
        out. Claimant restrained the resident by placing her in a prone 
 
        position on the floor, sitting on her buttocks and holding her 
 
        hands behind her back. The resident then kicked claimant several 
 
        times in the lower back during a period of possibly 10 or 15 
 
        minutes until the area supervisor and nurse, who had been 
 
        summoned to help, arrived on the scene.
 
        
 
            Claimant, who was pregnant, began spotting and was taken 
 
        immediately to employer's medical facility where she was examined 
 
        by the employer's physician John Henry, M.D. The accident 
 
        report, dated April 10, 1985, said claimant was struck in the 
 
        stomach by a shoe and was kicked in the back (exhibit 17, p. 70). 
 
        Dr. Henry reported on April 10, 1985, that the skin was intact, 
 
        but she was very tender over the coccyx. Dr. Henry took claimant 
 
        off work for an uncertain period of time (ex. 17, pp. 71 & 112). 
 
        He sent claimant to see her OB/GYN physician, Leland G. Olson, 
 
        M.D. (ex. 17, pp. 70 & 111). Dr. Henry reported on April 15, 
 
        1985, that claimant saw Dr. Olson on April 11, 1985. An 
 
        ultrasound was negative. There was no spotting or cramping, but 
 
        there was a lot of pain in the area of the coccyx and this area 
 
        was very tender. He next referred claimant to an orthopedist, 
 
        James P. O'Hara, M.D., (ex. 17, pp. 72 & 113). Dr. O'Hara saw 
 
        claimant on April 15, 1985. Although there was no ecchymosis or 
 
        hemorrhage noted, she did have exquisite tenderness over the tip 
 
        of her tailbone and found it difficult to sit, move about, take a 
 
        deep breath or cough without severe pain. He said she should 
 
        continue to stay off work and referred her to her family 
 
        physician, Charles L. Pigneri, D.O. (ex. 17, pp. 109 & 110), who 
 
        is a bone specialist and who was closer to home. Employer then 
 
        considered Dr. Pigneri to be the treating physician (ex. 17, pp. 
 
        73 & 74).
 
        
 
             On April 22, 1986, Dr. Henry recorded that claimant was 
 
             referred to Dr. Pigneri as she still complained of a very painful 
 
             coccyx (ex. 17, pp. 76 & 124). Dr. Pigneri diagnosed acute 
 
             lumbar strain (ex. 17, p. 122).
 
        
 
            In an undated interoffice memo Fenton Lincoln, at the 
 
        school, wrote to Dr. Henry:
 
        
 
             Richard Andrews of the State Comptroller's Office, Worker's 
 
             [sic] Compensation, has requested that I ask you to inquire 
 
             as to the condition of Beverly Alm. On April 22 you 
 
             referred Ms. Alm to Dr. Charles Pigneri of Oakland, Iowa. 
 
             Any information you would gather regarding when Ms. Alm will 
 
             be able to return to work would be much appreciated. 
 
             According to records in Des Moines, Ms. Alm would have been 
 
             able to return to work on May 2, 1985. She has yet to 
 
             return.
 
             
 
        (ex. 17, p. 139)
 
        
 
             Next on May 9, 1985, Fenton Lincoln at the state school 
 
             wrote to Dick Andrews at the office of comptroller as follows:
 
        
 
             Dr. John Henry talked with Dr. Pigneri on 5-8-85 at which 
 
             time Dr. Pigneri said he had seen Beverly four days ago 
 

 
        
 
 
 
 
 
             (5-4-85) and at that time recommended two more weeks off. 
 
             He went on to say that he felt Beverly probably should not 
 
             return to work in same work area. Dr. Henry seemed to think 
 
             that this meant for the duration of her pregnancy. Dr. 
 
             Henry also said Beverly is kind of a crybaby and is probably 
 
             trying to drag this out. Suggest you do a little more 
 
             checking. Hope this helps.
 
             
 
        (ex. 17, p. 77)
 
        
 
             Dr. Pigneri said claimant was still unable to work on May 
 
             17, 1985 (ex. 17, p. 117).
 
        
 
            Dr. Pigneri signed a surgeons report on June 1, 1985. In it 
 
        Dr. Pigneri stated claimant was kicked by a school inmate and 
 
        suffered low back injuries. He indicated that the only cause for 
 
        claimant's condition was this injury. He showed that disability 
 
        began on April 11, 1985, and that the patient will be able to 
 
        resume work on June 9, 1985 (ex. 17, p. 83).
 
        
 
             On June 3, 1985, Andrews sent a 30-day notice of termination 
 
             of benefits to claimant which states, "A review of the file 
 
             reveals lack of medical data to substantiate your continuing 
 
             disability." (ex. 17, pp. 78 & 137).
 
        
 
            In a memo received in the comptroller's office on June 6, 
 
        1985, Fenton Lincoln wrote to JoAnn Mitchell as follows:
 
        
 
             Dr. Henry talked with Dr. Pigneri this A.M. about Beverly's 
 
             condition. Dr. Pigneri says Beverly is still complaining of 
 
             back pain and her condition is not related to her pregnancy. 
 
             Pigneri voiced his concern that Beverly is somewhat of a 
 
             complainer but he really is not in the position to tell her 
 
             she is not in pain. Since she is pregnant he can not 
 
             perform any x-rays to verify abnormalities and basically has 
 
             to take her word that she is still in pain. He is reluctant 
 
             to release her for fear something may actually be wrong with 
 
             her. Henry explained to Pigneri that this is costing a lot 
 
             of money and Pigneri is aware of that fact. He will be 
 
             seeing Beverly again next week.
 
             
 
             Regarding the idea of reassigning Beverly to another unit, 
 
             there is a possibility of injury on any unit so is not going 
 
             to protect her by doing that. Most Program Administrators 
 
             require an unrestricted release before allowing anyone to 
 
             return to work.
 
             
 
        (ex . 17, pp . 84 & 119 )
 
        
 
             On June 6, 1985, Raymond E. Pogge, an attorney which 
 
             claimant had retained, wrote to Andrews to protest Andrews' 
 
             termination and promised to submit a report from Dr. Pigneri and 
 
             a neurosurgeon that was to examine claimant (ex. 17, p. 85).
 
        
 
            On June 8, 1989, Dr. Pigneri wrote to Pogge as follows:
 
        
 
             Beverly Alm was injured while at work in April 1985. She 
 
             sustained a low back injury. No X-rays were taken because 
 
             of her pregnancy. I would welcome another opinion. I have 
 
             a strong feeling that she should be healed from the injury 
 
             but she continues to complain. I have been seeing her on a 
 
             weekly basis in hopes that she would want to return to work. 
 
             She has multiple complaints many of which are not associated 
 
             with the injury. I suggested that she should consider 
 
             taking a leave of absence until the baby is born. She has 
 
             not responded as yet. I last saw her June 1, 1985. I felt 
 

 
        
 
 
 
 
 
             that she did not want to return to work as she has not felt 
 
             well since the inception of her pregnancy.
 
             
 
        (ex. 17, p. 86)
 
        
 
             Pogge wrote to Andrews again on June 18, 1985. He told 
 
             Andrews that claimant had received a letter from employer stating 
 
             that she was required to contact her supervisor and return to 
 
             work or she would be considered to have resigned. He urged 
 
             Andrews not to terminate claimant because Maurice P. Margules, a 
 
             neurosurgeon, had examined claimant on June 11, 1985, and had 
 
             determined that she should not return to work (ex. 17, p. 87).
 
        
 
            Dr. Margules reported on July 15, 1985. His conclusions 
 
        were as follows:
 
        
 
             It is felt, at this time, strictly from a clinical 
 
             standpoint and based on the patient's history that the 
 
             patient sustained a sprain contusion of the lumbar spine and 
 
             lumbo-sacral region and is not able to perform the duties of 
 
             her work.
 
             
 
             Because of the patient's pregnancy, it is our recommendation 
 
             that no X-rays be obtained and no medication given to the 
 
             patient at this time.
 
             
 
             The patient's case will be evaluated on October 24, 1985, a 
 
             month following her delivery, and if there is persistence of 
 
             pain further studies should be performed.
 
             
 
        (ex. 17, pp. 89, 90, 99 & 100)
 
        
 
             On July 16, 1985, JoAnn Mitchell wrote to claimant, "This 
 
             office has not yet received the medical report from Dr. Margules, 
 
             so we have had to stay with the 30-day notice of 6-3-85." (ex. 
 
             17, p. 125).
 
        
 
            On July 23, 1985, Pogge forwarded the report of Dr. Margules 
 
        to Robert Wallace, the school administrator and requested that 
 
        workers' compensation benefits be resumed (ex. 17, p. 91).
 
        
 
            Dr. Margules wrote to claimant's law firm again on August 8, 
 
        1985, in these words:
 
        
 
             Mrs. Alm was evaluated in this office on the 8th of August 
 
             1985, at which time, she continued to complain of pain in 
 
             the lumbar region and [sic] is, in our opinion, unable to 
 
             return to work.
 
             
 
             In view of the history given by this patient, a total 
 
             absence of back pain prior to the accident of April 10, 
 
             1985, it is my opinion that the patient's continuous pain in 
 
             the lumbar region and rigidity of the lumbar spine is the 
 
             result of the injury sustained on the 10th of April 1985 
 
             rather than the apparently normal pregnancy that is going on 
 
             at this time.
 
             
 
        (ex. 17, p. 92)
 
        
 
             On August 12, 1985, claimant's attorney again requested 
 
             Andrews to resume workers' compensation benefits because the 
 
             August 8, 1985, letter of Dr. Margules answered the questions 
 
             that Andrews had entertained (ex. 17, p. 93).
 
        
 
            On August 21, 1985, Pogge wrote to Andrews as follows:
 
        
 

 
        
 
 
 
 
 
             Pursuant to our telephone conversation of today, it is my 
 
             understanding that you, on behalf of the State of Iowa, are 
 
             denying the workers' compensation claim on the basis that 
 
             the medical reports do not substantiate her claim that she 
 
             has a work related injury. We discussed on the phone that 
 
             you have reports from Dr. Maurice Margules and Dr. Charles 
 
             Pigneri. It is also understood that the state has no medical 
 
             reports contradicting the opinions of the above two doctors.
 
             
 
             Based upon your denial of the benefits, I am filing a 
 
             petition for arbitration.
 
             
 
        (ex. 17, p. 94)
 
        
 
            Andrews replied on August 23, 1985, with these remarks:
 
        
 
             This letter is to confirm our telephone conversation of 
 
             8-21-85. The medical data presented is only subjective, 
 
             since there are no actual tests to document your client's 
 
             complaints. The medical reports that you refer to are 
 
             nothing more than letters from the doctors repeating 
 
             statements that your client has previously made.
 
             
 
             Compensation was paid to Ms. Alm from 4-11-85 through 7-3-85 
 
             (12 weeks), which includes a thirty-day notice as required 
 
             by law.
 
             
 
             In view of her sick leave record, it appears that her intent 
 
             was to use Workers' Compensation for the duration of her 
 
             pregnancy.
 
             
 
        (ex. 17, p. 95)
 
        
 
             There is no evidence that Andrews had requested another 
 
             medical evaluation by a third physician of his own choosing as 
 
             had been suggested to him by claimant's counsel.
 
        
 
             Claimant testified that she had been referred to Dr. 
 
             Margules by Dr. Pigneri, "...he told me that he couldn't do 
 
             anything more to me. So he referred me to Dr. Margules." (tr. 
 
             p. 33). Also, an undated note from Fenton Lincoln to JoAnn 
 
             Mitchell states, "Beverly was seen by Dr. Pigneri today and was 
 
             referred to Dr. Margules." (ex. 17, p. 129). According to Dr. 
 
             Pigneri's office notes he last saw claimant on June 1, 1985 (ex. 
 
             17, p. 98), and Dr. Margules' office notes show he first saw 
 
             claimant on June 11, 1985 (ex. 17, p. 102; ex. 18, p. 1). His 
 
             office notes show dates for July 12, 1985; August 8, 1985; 
 
             January 14, 1986; April 21, 1986; May 8, 1986; May 16, 1986; and 
 
             September 24, 1986 (ex. 18, pp. 1 & 2).
 
        
 
            Claimant testified her first child was born on October 2, 
 
        1986. Dr. Margules reported on January 14, 1984, that claimant 
 
        was breastfeeding her child until May of 1986, that no further 
 
        diagnostic tests should be performed until after May of 1986 (ex. 
 
        10).
 
        
 
            Eventually, claimant was hospitalized from April 27, 1986 to 
 
        April 29, 1986, for a neurological examination which included 
 
        electromyography and nerve conduction studies, a myelogram and a 
 
        CT scan (ex. 13). The discharge summary concludes as follows:
 
        
 
             A computed tomography of the spine with contrast media in 
 
             place following myelography did not reveal evidence of 
 
             abnormal findings. It was felt after final evaluation the 
 
             patient's diagnosis was that of a sprain of the lumbar spine 
 
             and conservative treatment recommended.
 

 
        
 
 
 
 
 
        
 
             The patient will be seen in the office on return visit on 
 
             May 8, 1986, at 1600 hours at which time decision will be 
 
             made regarding the patient's ability to return to her 
 
             previous employment.
 
             
 
        (ex. G, pp. 7 & 8)
 
        
 
             This was the last report from Dr. Margules. There is no 
 
             report from Dr. Margules on the issue whether there is or is not 
 
             permanent impairment or whether claimant should or should not 
 
             have restrictions.
 
        
 
            Claimant testified that she became dissatisfied with Dr. 
 
        Margules. She requested to be and was discharged by him in 
 
        September of 1986. She then began to see her brother-in-law, 
 
        David J. Schreiber, M.D., a neurosurgeon, in March of 1987. Dr. 
 
        Schreiber lives in Floissant, Missouri, and practices in Alton, 
 
        Illinois (tr. p. 38-44). Claimant testified that she inquired 
 
        about returning to work a number of times, but Dr. Margules would 
 
        not permit her to return to work (tr. pp. 34-38). She was 
 
        pregnant with her second child from May of 1986 until February of 
 
        1987. Claimant asserted that Dr. Margules told her that he could 
 
        not treat her while she was pregnant (tr. pp. 42 & 43). She did 
 
        not see any doctor after she left Dr. Margules in September of 
 
        1986 until she saw Dr. Schreiber in March of 1987.
 
        
 
             Dr. Schreiber saw claimant professionally on March 24, 1987, 
 
             at which time he found visible and palpable spasm, sensory loss 
 
             in the distribution of the 5-1 dermatome and some limited range 
 
             of motion. A CAT scan revealed no evidence of disc herniation 
 
             (ex. 1, pp. 1-3). On his second examination on May 19, 1987, 
 
             there was no change from the previous examination. He diagnosed 
 
             muscle and ligamentous damage involving the lower back and there 
 
             was evidence of left 5-1 radiculopathy. He continued claimant on 
 
             rest, heat, massage and Motrin (ex. 2). On July 27, 1987, he 
 
             wrote that claimant continued to be totally, but temporarily 
 
             disabled and that she had not reached maximum medical recovery 
 
             (ex. 3). Dr. Schreiber saw claimant for the third and last time 
 
             on August 14, 1987. There was no improvement in her condition. 
 
             He stated that in his opinion her deficits would remain 
 
             permanent. He said that in his opinion claimant has suffered, 
 
             "...a permanent partial disability of thirty-five percent of a 
 
             person as a whole", based on muscle and ligamentous damage and 
 
             nerve root damage (ex. 4, pp. 1 & 2). On September 11, 1987, he 
 
             wrote that claimant was disabled from returning to the heavy 
 
             labor required in her job as a worker at the Glenwood State 
 
             Hospital School. He suggested that she consider vocational 
 
             rehabilitation for training in some other form of employment (ex. 
 
             5). In a letter on March 19, 1988, he suggested that claimant be 
 
             retrained for sedentary work. He concluded by saying, 
 
             "Therefore, it is my opinion that Mrs. Alm is not totally and 
 
             permanently disabled but rather has a permanent partial 
 
             disability of thirty-five percent of a person as a whole."
 
        (ex. 6).
 
        
 
             Dr. Schreiber gave a deposition on June 6, 1988 (ex 22). He 
 
             stated that he is a board certified member of the American Board 
 
             of Neurology. He has taught, written articles and has a number 
 
             of other credits as a medical doctor and as a neurologist. He 
 
             stated that his finding of spasm, loss of range of motion, 
 
             sensory loss, and loss of reflex at the left ankle were all 
 
             objective findings. Claimant was not improved at her second visit 
 
             (ex. 22, p. 18). On her third visit, "...there really was very 
 
             little change." (ex. 22, p. 20). He added that on March 14, 
 
             1987, that he stressed that she should not exert a force greater 
 

 
        
 
 
 
 
 
             than 10 to 15 pounds; should not stoop, bend or squat; and she 
 
             should not reach, sit or stand for a prolonged period of time 
 
             without being able to change positions. Her deficits are 
 
             permanent. He stated that his permanent partial disability 
 
             rating of 35 percent of a person as a whole was based on the 
 
             Guides to the Evaluation of Permanent Impairment, published by 
 
             the American Medical Association. He stated that the deficits to 
 
             her back and nerve root damage were directly related to the 
 
             incident of April 1985 (ex. 22, pp. 21 & 22).
 
        
 
             Dr. Schreiber admitted he did not begin treating claimant 
 
             until two years after the injury; that he thought impairment 
 
             rating and disability rating were pretty much the same thing, but 
 
             he really didn't know the difference; that he made a mistake by 
 
             rating claimant and stating at the same time that she had not 
 
             reached maximum medical improvement. The doctor said claimant 
 
             was in the best condition the first time he saw her. She got 
 
             worse after that (ex. 22, pp. 32 & 33). He granted that claimant 
 
             violated his weight restriction when she lifted her child 
 
             weighing approximately 25 pounds (ex. 22, pp. 34 & 45). Dr. 
 
             Schreiber acknowledged that he found sensory loss and ankle 
 
             reflex loss even though Dr. Margules did not find sensory loss or 
 
             ankle reflex loss (ex. 22, p. 38). Claimant refused to take an 
 
             EMG for him because she did not want to get stuck with needles 
 
             again (ex. 22, p. 36).
 
        
 
            Claimant was examined by David J. Boarini, M.D, a 
 
        neurosurgeon, at the request of defendants on July 30, 1987. Dr. 
 
        Boarini reported on August 11, 1987. He found a normal range of 
 
        motion in her back and legs, intact sensation to pin and touch, 
 
        knee reflexes were symmetric and physiologic and ankle reflexes 
 
        were hypoactive bilaterally. He concluded as follows:
 
        
 
             This patient has some chronic myofascial low-back pain with 
 
             no neurologic abnormality. He has normal x-rays. She 
 
             suffered a fairly minor injury in 1985 and I can't find 
 
             anything abnormal on her examination at this time. I think 
 
             because of her continuing pain, I would rate her permanent 
 
             impairment at 2-3% of the person as a whole. I have no 
 
             specific restrictions.
 
             
 
             It might help her to become involved in physical therapy and 
 
             a back strengthening program.
 
             
 
        (ex. A, pp. 1 & 2)
 
        
 
             On January 21, 1988, Dr. Boarini added the following, "In 
 
             response to your letter of January 6th on Beverly Rae Alm, I 
 
             would anticipate that with a minor injury such as she had, she 
 
             probably had reached maximum medical benefits within six months 
 
             of the injury." (ex. A, p. 3)
 
        
 
            Neither one of Dr. Boarini's letters mentions the fact that 
 
        claimant was pregnant at the time of her injury on April 10, 
 
        1985.
 
        
 
            Claimant testified that she cannot bend over and pick up 
 
        objects, pick up her children or pick up the laundry. She cannot 
 
        vacuum. If she strains her low back it puts her in bed for a day 
 
        or two. Pain from her lower back radiates down her left leg and 
 
        it feels weak and numb and like it is going to give out on her 
 
        (tr. pp. 46, 47, 53 & 77). Claimant testified that she assisted 
 
        her father by changing his bandages after his surgery for cancer 
 
        of the prostate and spine and the bending over caused pain in her 
 
        lower back and down her left leg (tr. pp. 74-78). Claimant 
 
        admitted that she lifted her child who weighed 25 pounds, but she 
 

 
        
 
 
 
 
 
        tried to avoid it (tr. pp. 78 & 79).
 
        
 
             Claimant maintained that Dr. Boarini spent 5 or 10 minutes 
 
             with her at the time of his examination on July 30, 1987. He did 
 
             not ask about the accident, converse with her, or ask her any 
 
             questions. He did not touch her to examine her. All he did was 
 
             to have her bend over and take two steps forward. He then told 
 
             her to sit down, told her there was nothing wrong with her, it 
 
             was all in her head, go home and go to work. (tr. pp. 48-53). 
 
             On cross-examination she admitted he did percuss her knee and 
 
             ankle reflexes. He also told her that physical therapy would 
 
             help (tr. pp. 81 & 82).
 
        
 
            Claimant testified that even though no doctor has ever 
 
        released her to return to work she tried to find employment on 
 
        three different occasions. She applied at Griswold Care Center. 
 
        On the preemployment physical examination, B.J. England, M. D., 
 
        said she had lumbar spasm at the time of her examination of 
 
        September 9, 1987 (ex. 11). She worked there two weeks. Her 
 
        back pain and leg pain increased and Dr. Schreiber told her to 
 
        quit immediately. She applied at a convenience store, but was 
 
        not hired because she was limited on lifting. She applied at one 
 
        other place, but did not get a reply (tr. pp. 54, 55 & 70-74). 
 
        Claimant indicated an intention to go back to school and get 
 
        vocational rehabilitation to get into medical technology She 
 
        asserted that employer had not offered to assist her with 
 
        vocational rehabilitation (tr. pp. 56 & 57).
 
        
 
            In 1985 and early 1986, claimant received four certified 
 
        letters from employer. The first three letters contained 
 
        identical wording and were dated June 17, 1985; August 21, 1985; 
 
        and January 6, 1986. These three letters stated:
 
        
 
             Upon receipt of this letter you are required to contact your 
 
             supervisor. Failure to comply with the above may be 
 
             considered as a voluntary resignation of your employment at 
 
             Glenwood State Hospital-School.
 
        
 
            If you have any questions, contact Mr. Robert Wallace,
 
             Area I Program Administrator.
 
             
 
        (ex. 17, pp. 59-61; ex. C, pp. 1, 2, & 4)
 
        
 
             The letter dated January 14, 1986 reads as follows:
 
        
 
             This letter is being written to confirm your voluntary 
 
             resignation. On January 6, 1986, a "Return Receipt 
 
             Requested" letter was sent to you directing you to contact 
 
             your supervisor upon receipt of the letter. You signed for 
 
             this letter; however, have failed to comply with the request 
 
             to contact your supervisor so we are, as of this date, 
 
             removing your name from the payroll.
 
             
 
             If you have questions concerning this action, please contact 
 
             Mr. Robert Wallace, Area I Program Administrator, or me.
 
             
 
        (ex. 17, pp. 37, 45 & 57, ; ex. C, p. 5)
 
        
 
             Claimant acknowledged that she received these letters and 
 
             that each time she contacted her supervisor as directed (tr. pp. 
 
             58-62 & 83-87). After the January 14, 1987 letter, she contacted 
 
             Wallace. He told her she could not return to work without a 
 
             doctor's slip stating that she could return to work. Claimant 
 
             insisted that she could not produce such a slip because the 
 
             doctors had not released her. He told her that her position 
 
             needed to be filled. Claimant then construed that she was 
 

 
        
 
 
 
 
 
             "voluntarily terminated" as the letter had stated (tr. pp. 63, 
 
             64, 87-91 & 99-106). Claimant wrote an undated letter to Wallace 
 
             which was received at the school on September 3, 1986, requesting 
 
             a medical leave of absence because the school insisted upon a 
 
             release from the doctor to return to work, but the doctors would 
 
             not release her to return to work (tr. p. 91; ex. 17, p. 38; ex. 
 
             C, p. 3). Claimant asserted that Andrews told her that she was 
 
             having back problems due to her pregnancy (tr. p. 93).
 
        
 
            Robert Wallace testified the he has been the treatment 
 
        program administrator of Glenwood school since 1966. He has been 
 
        with the school for 31 years. The supervisors confirmed that 
 
        claimant did contact them after the June 17, 1985 letter and 
 
        after the August 21, 1986 letter, but that claimant did not 
 
        contact the supervisors after the January 6, 1986 letter, and 
 
        that is why the termination letter of January 14, 1986 was sent 
 
        to her (tr. pp. 106-120).
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             The first issue is to determine claimant's entitlement to 
 
             temporary disability benefits.
 
        
 
            The claimant has the burden of proving by a preponderance of 
 
        the evidence that the injury of April 10, 1985, is causally 
 
        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.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
        possibility is insufficient; a probability is necessary. Burt v. 
 
        John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
        (1955). The question of causal connection is essentially within 
 
        the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
        Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
             However, expert medical evidence must be considered with all 
 
             other evidence introduced bearing on the causal connection. 
 
             Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
             not be couched in definite, positive or unequivocal language. 
 
             Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
             the expert opinion may be accepted or rejected, in whole or in 
 
             part, by the trier of fact. Id. at 907. Further, the weight to 
 
             be given to such an opinion is for the finder of fact, and that 
 
             may be affected by the completeness of the premise given the 
 
             expert and other surrounding circumstances. Bodish, 257 Iowa 
 
             516, 133 N.W.2d 867. See also Musselman v. Central Telephone 
 
             Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
            Iowa Code section 85.34(1) defines healing period as 
 
        follows:
 
        
 
                  If an employee has suffered a personal injury causing 
 
                      permanent partial disability for which compensation is 
 
                      payable as provided in subsection 2 of this section, the 
 
                      employer shall pay to the employee compensation for a 
 
                      healing period, as provided in section 85.37, beginning on 
 
                      the date of injury, and until the employee has returned to 
 
                      work or it is medically indicated that significant 
 
                      improvement from the injury is not anticipated or until the 
 
                      employee is medically capable of returning to employment 
 
                      substantially similar to the employment in which the 
 
                      employee was engaged at the time of injury, whichever occurs 
 
                      first.
 
             
 
             Claimant is a young woman, age 20 on the injury date, with 
 
             no previous or subsequent history of back problems. Her 
 
             pregnancy at the time of the injury complicated and prolonged the 
 

 
        
 
 
 
 
 
             period of recovery because she could not be exposed to x-ray and 
 
             she could not take the usual medications for a back injury due to 
 
             the pregnancy. She received a severe trauma induced type of 
 
             injury when a behaviorly disturbed resident who weighed 180 
 
             pounds and was 5' 11" tall, kicked her in the back several times 
 
             over a period of 10 or 15 minutes before the supervisor and nurse 
 
             came to the rescue. Although the skin was intact, claimant began 
 
             spotting and was very tender over the coccyx. Dr. Henry took her 
 
             off work on April 10, 1985, for an uncertain period. Dr. O'Hara 
 
             found no ecchymosis or hemorrhage, but found it difficult to sit, 
 
             move about, take a deep breath or cough without severe pain. Dr. 
 
             Pigneri diagnosed a severe lumbar strain and continued to keep 
 
             claimant off work. Taking note of the selected quotes from 
 
             employer's records, set out above, it appears as though Dr. 
 
             Pigneri was intimidated by the pressure put on him by Richard 
 
             Andrews, Fenton Lincoln, and Dr. John Henry, as for instance, 
 
             "Henry explained to Pigneri that this is costing a lot of money 
 
             and Pigneri is aware of that fact." (ex. 17, pp. 84 & 119).
 
        
 
             Even though Dr. Pigneri had not been able to take x-rays as 
 
             he had wished, and even though claimant was still complaining of 
 
             pain, Dr. Pigneri nevertheless indicated that he thought that 
 
             claimant could return to work on June 9, 1985, in the surgeon's 
 
             report he completed on June 1, 1985. This was done by filling in 
 
             the blank space on a printed form rather then by letter or report 
 
             with any explanation for this determination in view of the fact 
 
             that claimant had not been x-rayed and claimant continued to 
 
             complain of pain (ex. 17, pp. 83 & 86). Dr. Pigneri was unsure 
 
             of his position. He told Pogge he would welcome another opinion 
 
             (ex. 17, p. 86).
 
        
 
            It should be noted that just 10 days later, on June 11, 
 
        1985, which also was two days after Dr. Pigneri said claimant 
 
        would be able to return to work as of June 9, 1985, Dr. Margules, 
 
        a neurosurgeon, found claimant sustained a "sprain contusion of 
 
        the lumbar spine and is not able to perform the duties of her 
 
        work." (ex. 20, p. 2)
 
        
 
            Andrews' 30-day notice of termination letter on June 3, 1989 
 
        stated, "A review of the file reveals lack of medical data to 
 
        substantiate your continuing disability." (ex. 17, p. 78). 
 
        However, Lincoln reported to Andrews on May 9, 1985, "He [Dr. 
 
        Pigneri] went on to say that he felt Beverly probably should not 
 
        return to work in the same area." (ex. 17, p. 77).
 
        
 
            Therefore, when Andrews terminated claimant's workers' 
 
        compensation payments on June 3, 1985, because of, "a lack of 
 
        medical data to substantiate your continuing disability." (ex. 
 
        17, p. 78), he knew that claimant was disabled from performing 
 
        her job because that is what Dr. Pigneri had told Dr. Henry. 
 
        Also, Lincoln wrote to Mitchell on June 6, 1985, it was not 
 
        feasible to assign claimant to another unit because;there is the 
 
        possibility of injury on any unit. This memo concluded, "Most 
 
        Program Administrators require an unrestricted release before 
 
        allowing anyone to return to work." (ex. 17, pp. 84 & 119 ) .
 
        
 
            Dr. Margules saw claimant on July 11, 1985 and did keep her 
 
        off work. Dr. Margules postponed x-rays and medications until 
 
        after the delivery of the child in October of 1985 (ex. 17, p. 
 
        2). After that, claimant was breastfeeding her child and it was 
 
        necessary to postpone proper diagnosis and treatment until April 
 
        27, 1986, when claimant was hospitalized for an EMG, CT scan and 
 
        myelogram all of which did not reveal any abnormal findings. Dr. 
 
        Margules concluded, "It was felt after final evaluation the 
 
        patient's diagnosis was that of a strain of the lumbar spine and 
 
        conservative treatment was recommended." (ex. G, p. 7). Claimant 
 

 
        
 
 
 
 
 
        was to be seen in his office on May 8, 1986, at which time the 
 
        decision will be made regarding the patient's ability to return 
 
        to her previous employment. Claimant saw Dr. Margules on May 8, 
 
        1986 and May 16, 1986. However, there are no office notes for 
 
        these two dates or any reports from Dr. Margules for these two 
 
        dates, just the two bare dates stamped on Dr. Margules' office 
 
        notes.
 
        
 
             Claimant was very mysterious about her dissatisfaction with 
 
             Dr. Margules and why she did not want to be treated by him after 
 
             September of 1986. She never did just simply reveal why in fact 
 
             she became dissatisfied. It is also noted that claimant became 
 
             pregnant for the second time in May of 1986 just as Dr. Margules 
 
             appeared to be about to return her to work as of May 8, 1986. 
 
             The possibility exists that claimant did not want to go back to 
 
             work if she was pregnant again. Also, she may have decided that 
 
             she would rather be treated by her brother-in-law, Dr. Schreiber, 
 
             than Dr. Margules.
 
        
 
            Irrespective of claimant's motives for terminating her 
 
        relationship with Dr. Margules, the date of May 8, 1986 best 
 
        comports with the termination of healing period as defined in 
 
        Iowa Code section 85.34(1) based on the facts of record in this 
 
        case. Claimant had not returned to work. Claimant could not 
 
        return to substantially similar work in the opinion of Lincoln 
 
        based on the remarks of Dr. Pigneri to Dr. Henry.
 
        
 
            Claimant's disability was complicated by her first pregnancy 
 
        in that she could not be x-rayed or medicated during her 
 
        pregnancy and while she was breastfeeding. At the earliest 
 
        possible time she could be diagnosed, on April 29, 1986, she was 
 
        determined to have sustained a strain and was scheduled for an 
 
        interview about returning to work on May 8, 1986. The evidence 
 
        to support further temporary disability ceases at that point. 
 
        The medical records of Dr. Margules have two dates, May 8, 1986 
 
        and May 16, 1986, stamped in his office notes with no entries of 
 
        any kind after those stamped dates. There are no medical reports 
 
        from Dr. Margules after that date. Therefore, it is determined 
 
        that claimant reached maximum medical improvement as of May 8, 
 
        1986. Claimant has sustained the burden of proof of a period of 
 
        recovery up to that date, but has not submitted any evidence of 
 
        any improvement after that date.
 
        
 
            Claimant cannot be penalized for being pregnant. Women are 
 
        a large segment of the work force. Employment does not preclude 
 
        women from the privilege of becoming pregnant and bearing 
 
        children. The employer takes the employee as is. All of this is 
 
        known by employers who hire employees and to the insurance 
 
        carriers who insure the employers. Pregnancy and childbearing is 
 
        a contingency that can be and should be anticipated by employers, 
 
        insurance carriers and employees.
 
        
 
            Claimant did not improve medically after May 8, 1986. Dr. 
 
        Schreiber found visible and palpable spasm, sensory loss in the 
 
        S-l dermatome, some limited range of motion and hypoactive left 
 
        ankle reflex. Dr. Margules had not found her to have these 
 
        conditions. Therefore, claimant was worse when she saw Dr. 
 
        Schreiber than when she saw Dr. Margules. She had not improved. 
 
        She was worse. Furthermore, Dr. Schreiber said claimant was 
 
        worse the second time he saw her and there was no change in her 
 
        condition the third time he saw her. It is clear then that the 
 
        point of maximum medical improvement, based on the evidence in 
 
        this record, coincided with when Dr. Margules could perform 
 
        objective tests and requested claimant to come in May 8, 1986, 
 
        with a view to returning her to work.
 
        
 

 
        
 
 
 
 
 
             Dr. Boarini believed this injury should have reached maximum 
 
             medical benefit within six months of the injury, however, nowhere 
 
             in Dr. Boarini's evidence is it mentioned that he knew that 
 
             claimant was pregnant or that the pregnancy complicated her 
 
             examination, diagnosis and treatment for this injury. Dr. 
 
             Boarini quite reasonably might have extended his estimate of the 
 
             period of maximum medical improvement until after the child was 
 
             delivered and breastfed if he had known this information.
 
        
 
            Claimant testified that Andrews told her that her back pain 
 
        was caused by her pregnancy. However, Dr. Pigneri, employer's 
 
        choice of physician said that the back pain was not related to 
 
        her pregnancy. According to Lincoln in a report to Mitchell on 
 
        June 6, 1985, "Dr. Pigneri says Beverly is still complaining of 
 
        back pain and her condition is not related to her pregnancy." 
 
        (ex. 17, pp. 84 & 119). Dr. Margules wrote on August 8, 1985:
 
        
 
             In view of the history given by this patient, the total 
 
             absence of back pain prior to the accident of April 10, 
 
             1985, it is my opinion that the patient's continuous pain in 
 
             the lumbar region and rigidity of the lumbar spine is the 
 
             result of the injury sustained on the 10th of April 1985 
 
             rather than the apparently normal pregnancy that is going on 
 
             at this time.
 
             
 
        (ex. 17, p. 92)
 
        
 
             Andrews maintained in a sworn statement on March 29, 1988, 
 
             "...that my office did not authorize or approve treatment by Dr. 
 
             Maurice Margules..." (ex. E). However, an undated memo from 
 
             Lincoln to Mitchell who works in the same office as Andrews reads 
 
             as follows, "Beverly was seen by Dr. Pigneri today and was 
 
             referred to Dr. Margules." (ex. 17, p. 129). Claimant testified 
 
             that Dr. Pigneri referred her to Dr. Margules. Referral by an 
 
             authorized physician to another physician is routinely considered 
 
             to constitute the second physician as an authorized physician. 
 
             Limoges v. Meier Auto Salvage, I Iowa Industrial Commissioner 
 
             Report, 207 (1981); Kittrell v. Allen Memorial Hospital, 
 
             Thirty-fourth Biennial Report of the Industrial Commissioner, 164 
 
             (1979). Furthermore, in as much as Andrews had denied an injury 
 
             as of the time claimant retained Dr. Margules, he forfeited the 
 
             right to choose the care. Defendants cannot deny liability on one 
 
             hand, and guide the course of treatment on the other. Barnhart 
 
             v. MAQ, Inc., I Iowa Industrial Commissioner Report, 16, 17 
 
             (Appeal Decision 1981); Kindhart v. Fort Des Moines Hotel, Vol. 
 
             1 No. 3 State of Iowa Industrial Commissioner Decisions 611 
 
             (Appeal Decision March 27, 1985).
 
        
 
             In conclusions, it is determined that healing period 
 
             benefits should begin on the date of the injury, April 10, 1985, 
 
             and extend to the time that it was medically indicated that 
 
             significant improvement from the injury was not anticipated, 
 
             which was, based on the evidence in this record, going to be May 
 
             8, 1986. [Iowa Code section 85.34(1)].
 
        
 
            Likewise, claimant is entitled to the medical expenses 
 
        presented for payment in the record as follows:
 
        
 
        Maurice P. Margules, M.D.         Ex. 13      $  865.00
 
        St. Anthony's Hospital            Ex. 15         399.60
 
        Alton, Illinois
 
        David J. Schreiber, M.D.          Ex. 12         163.00
 
        
 
                                             TOTAL    $1,427.60
 
        
 
        
 

 
        
 
 
 
 
 
             All of these expenses are determined to be reasonable 
 
             treatment for this injury and were caused by this injury. (Iowa 
 
             Code section 85.27). The parties also stipulated that this was 
 
             the case.
 
        
 
            The final issue is the determination of causal connection 
 
        and entitlement to permanent disability.
 
        
 
            Dr. Margules made no findings as to permanent impairment or 
 
        whether claimant should have work restrictions.
 
        
 
            Defendants' doctor, Dr. Boarini, using the history of this 
 
        injury found that claimant sustained a permanent impairment of 2 
 
        to 3 percent of the person as a whole (ex. A, p. 1).
 
        
 
            Dr. Schreiber estimated claimant sustained a 35 percent 
 
        disability of a person as a whole; however, even though he 
 
        professed to use the AMA Guides, he admitted he erred by giving 
 
        an impairment rating before claimant had attained maximum medical 
 
        improvement. However, doctors frequently give projected 
 
        impairment ratings. Defendants' counsel elicited from Dr. 
 
        Schreiber that he was not aware of the difference between 
 
        impairment and disability as distinguished in the AMA Guides. 
 
        Therefore, Dr. Schreiber's testimony stands for the proposition 
 
        that he believes that claimant is permanently impaired as he said 
 
        frequently, but the percentage amount of permanent functional 
 
        impairment is not clear. It would appear however, that Dr. 
 
        Schreiber felt that claimant was significantly impaired from his 
 
        use of the 35 percent figure. Doctors are not required to use 
 
        the AMA Guides. It is not unusual for experts to give an 
 
        impairment rating simply as a judgment call.
 
        
 
             Claimant was 20 years old at the time of the injury, 23 
 
             years old at the time of the hearing. She has a high school 
 
             education. She is young enough to be retrained. Conrad v. 
 
             Marquette School, Inc., IV Industrial Commissioner Report 74, 78 
 
             (1984). She wants to be retrained as a medical technologist. 
 
             Defendants have never offered any vocational rehabilitation 
 
             training to claimant. Failure to offer vocational rehabilitation 
 
             is one of the factors taken into consideration in determining 
 
             industrial disability. Johnson v. Chamberlain Manufacturing 
 
             Corp., I Iowa Industrial Commissioner Report 166 (Appeal Decision 
 
             1980). Vocational rehabilitation training is quite costly. The 
 
             employee experiences the cost of tuition, books and fees and at 
 
             the same time experiences a significant loss of income while 
 
             undergoing training.
 
        
 
            Claimant's only real past employment was as a nurse's aide 
 
        in a care facility and for a private client. She is now 
 
        foreclosed from performing this kind of strenuous work as well as 
 
        the work as a resident treatment worker. Jobs which require 
 
        physical labor are the easiest to get in the competitive labor 
 
        market and sometimes pay more than the more agreeable jobs. She 
 
        is foreclosed from all of these readily obtainable employments. 
 
        Dr. Schreiber imposed weight restrictions of 15 pounds; 
 
        restrictions against stooping, bending, squatting; and she should 
 
        not sit or stand for a prolonged period of time without changing 
 
        positions. Dr. Boarini did not say whether claimant was or was 
 
        not restricted in any manner from this injury. There is no 
 
        evidence that he was given claimant's previous medical history or 
 
        nonmedical history on this injury prior to his examination or 
 
        that he took it into consideration in making his evaluation. 
 
        There is no evidence that he knew Dr. Pigneri recommended that 
 
        claimant not return to work as an RTW or that Dr. Schreiber had 
 
        imposed his restrictions of 15 pounds; no stooping, bending or 
 
        squatting; and no prolonged sitting or standing without a change 
 

 
        
 
 
 
 
 
        of position. Claimant complained that Dr. Boarini's examination 
 
        was very cursory and superficial.
 
        
 
            Unfortunately, we have no impairment evidence or evidence of 
 
        restrictions from Dr. Margules. Dr. Schreiber's testimony is 
 
        expected to favor claimant because he is not only the treating 
 
        physician, but also her brother-in-law. Dr. Boarini's testimony 
 
        as defendants' one time examiner is expected to favor defendants, 
 
        but is also subject to the consideration that his examination was 
 
        cursory and superficial and that he had absolutely no knowledge 
 
        of claimant's history and prior treatment. In fact, he believed 
 
        claimant was kicked, fell to the floor and landed on her buttocks 
 
        when she sustained the injury. This description is at variance 
 
        with the other evidence. Claimant's condition is probably 
 
        somewhere in between Dr. Boarini's chronic myofascial low back 
 
        pain with no neurologic deficit, which he described as a minor 
 
        injury and rated at 2 to 3 percent and Dr. Schreiber's spasm, 
 
        sensory nerve loss, loss of range of motion and diminished left 
 
        ankle reflex which he rated at 35 percent. More deference must 
 
        be given to Dr. Schreiber because he was not only a treating 
 
        physician, but he examined claimant in greater detail and his 
 
        care extended care over a longer period of time. Also, he is 
 
        expected to have some responsibility for the ultimate recovery of 
 
        claimant. Rockwell Graphics Systems, Ind. v. Prince, 366 N.W.2d 
 
        187, 192 (Iowa 1985).
 
        
 
             In addition to her permanent impairment, claimant's 
 
             industrial disability includes her inability to return to her 
 
             former employments of nurse's aide and resident treatment worker 
 
             and the significant cost of retraining required to learn new 
 
             skills. Claimant testified that she cannot bend or lift very 
 
             much without encountering serious difficulties and this is 
 
             corroborated by Dr. Schreiber. Claimant is foreclosed from her 
 
             former employment. Michael v. Harrison County, Thirty-fourth 
 
             Biennial Report of the Industrial Commissioner 218, 220 (Appeal 
 
             Decision January 30, 1979); Rohrberg v. Griffin Pipe Products 
 
             Co., I Iowa Industrial Commissioner Report 282 (1984).
 
        
 
            Claimant has not demonstrated a serious attempt to find or 
 
        keep employment. She only made three applications. A former 
 
        employer took her back, but claimant terminated this employment 
 
        because she found it aggravated her injured back. Failure of an 
 
        employee to attempt to find work is a factor taken into 
 
        consideration in the determination of industrial disability. 
 
        Hild v. Natkin and Co., I Iowa Industrial Commissioner Report 144 
 
        (Appeal Decision 1981); Beintema v. Sioux City Engineering Co., 
 
        II Iowa Industrial Commissioner Report 24 (1981); Corv v. 
 
        Northwestern States Portland Cement Co., Thirty-third Biennial 
 
        Report of the Industrial Commissioner 104 (1976).
 
        
 
            Claimant has been influenced and affected by a number of 
 
        disincentives to want to actively and seriously seek work in the 
 
        competitive labor market. She was pregnant at the time of the 
 
        injury. Dr. Pigneri said she had multiple complaints before this 
 
        injury, not associated with this injury, apparently pregnancy 
 
        related. After the first child was born, claimant not only had a 
 
        small infant at home to care for, but became pregnant again in 
 
        May 1986. This child was not born until February 24, 1987. 
 
        Claimant then had two small infants at home to care for. 
 
        Claimant is married and the father of her children is presumed to 
 
        be supporting his family eliminating much of the necessity for 
 
        claimant to search, find and keep a job in the competitive labor 
 
        market. Claimant's father is seriously ill and she has spent 
 
        time caring for him as have other family members. For all of the 
 
        foregoing reasons claimant has not been forced to seek or 
 
        maintain employment in the normal work force of her community.
 

 
        
 
 
 
 
 
        
 
            Based on the foregoing evidence, and all of the factors used 
 
        to determine industrial disability, and applying agency expertise 
 
        [Iowa Administrative Procedure Act 17A.14(5)], it is determined 
 
        that claimant has sustained a 20 percent industrial disability to 
 
        the body as a whole.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             Wherefore, based on the evidence presented, the following 
 
             findings of fact are made:
 
        
 
            1. That Dr. Henry took claimant off work on the date of the 
 
        injury of April 10, 1985.
 
        
 
            2. That Dr. Pigneri continued to keep claimant off work 
 
        until June 9, 1985.
 
        
 
            3. That on June 11, 1985, Dr. Margules said claimant was 
 
        still unable to return to work due to this injury.
 
        
 
            4. That claimant's true condition could not be determined 
 
        until April 29, 1986, because she could not be x-rayed or 
 
        medicated until after her child was born and breastfed.
 
        
 
            5. That Dr. Margules told claimant to come to his office on 
 
        May 8, 1986, with a view toward being released to return to work.
 
        
 
            6. That claimant never improved medically after that date, 
 
        but only continued to get worse.
 
        
 
            7. That claimant was 20 years old at the time of the injury 
 
        and about 24 years old at the time of the decision.
 
        
 
             8. That she has a high school education without additional 
 
             formal education.
 
        
 
            9. That she seeks additional training as a medical 
 
        technologist.
 
        
 
             10. That defendants have not offered claimant any vocational 
 
             rehabilitation of any kind.
 
        
 
            11. That claimant has permanent functional impairment of at 
 
        least 2 to 3 percent of the body as a whole according to Dr. 
 
        Boarini.
 
        
 
            12. That claimant's impairment may be as high as 35 percent 
 
        according to Dr. Schreiber.
 
        
 
            13. That claimant did not and cannot return to her former 
 
        employment as a resident treatment worker; nor can she return to 
 
        her former employment as a nurse's aide in a care facility.
 
        
 
            14. That claimant has not seriously sought work since the 
 
        date of the injury.
 
        
 
             15. That claimant is not motivated to work because she is 
 
             the mother of two small infants, is helping to care for her 
 
             father who is quite ill, and appears to be supported by her 
 
             husband and the father of her two children.
 
        
 
            16. That claimant has sustained an industrial disability of 
 
        20 percent to the body as a whole.
 
        
 
                                 CONCLUSIONS OF LAW
 

 
        
 
 
 
 
 
        
 
             Wherefore, based on the evidence presented and the foregoing 
 
             principles of law, the following conclusions of law are made:
 
        
 
            That claimant is entitled to healing period benefits from 
 
        April 10, 1985 until May 8, 1986.
 
        
 
            That the injury was the cause of permanent disability.
 
        
 
            That claimant is entitled to 100 weeks of permanent 
 
        disability benefits based upon a 20 percent industrial disability 
 
        to the body as a whole.
 
        
 
            That claimant is entitled to medical benefits as shown above 
 
        in the total amount of $1,427.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, IT IS ORDERED:
 
        
 
            That defendants pay to claimant fifty-six point one four 
 
        three (56.143) weeks of healing period benefits for the period 
 
        from April 10, 1985 to May 8, 1986, at the rate of one hundred 
 
        eighty-eight and 89/100 dollars ($188.89) per week in the total 
 
        amount of ten thousand six hundred four and 85/100 dollars 
 
        ($10,604.85) commencing on April 10, 1985:
 
        
 
            That defendants pay to claimant one hundred (100) weeks of 
 
        permanent partial disability benefits based upon a twenty (20) 
 
        percent industrial disability to the body as a whole at the rate 
 
        of one hundred eighty-eight and 89/100 dollars ($188.89) per week 
 
        in the total amount of eighteen thousand eight hundred 
 
        eighty-nine dollars ($18,889) commencing on May 8, 1986.
 
        
 
            That defendants pay claimant or the provider of medical 
 
        services one thousand four hundred twenty-seven dollars ($1,427) 
 
        in medical expenses as set forth above.
 
        
 
            That all of the weekly benefits are to be paid in a lump 
 
        sum.
 
        
 
            That interest will accrue on workers' compensation weekly 
 
        benefits pursuant to Iowa Code section 85.30, but that no 
 
        interest is due on the unpaid medical expenses.
 
        
 
             That defendants are entitled to a credit under Iowa Code 
 
             section 85.38(2) for one thousand seven hundred fifty-three 
 
             dollars ($1,753) in medical expenses paid by Blue Cross/Blue 
 
             Shield of Iowa under an employee nonoccupational group health 
 
             plan and this credit is to be reimbursed to Blue Cross/Blue 
 
             Shield of Iowa as pursuant to the agreement between defendants 
 
             and Blue Cross/Blue Shield of Iowa (ex. F, pp. 1 & 2).
 
        
 
            That defendants are not required to pay the two hundred 
 
        twenty-seven dollars ($227) in workers' compensation medical 
 
        benefits that were paid prior to hearing.
 
        
 
            That defendants are entitled to a credit for twelve point 
 
        one four three (12.143) weeks of workers' compensation benefits 
 
        paid to claimant prior to hearing at the rate of one hundred 
 
        eighty-eight and 89/100 dollars ($188.89) per week in the total 
 
        amount of two thousand two hundred ninety-three and 69/100 
 
        dollars ($2,293.69) as stipulated to by the parties.
 
        
 
            That the costs of this action are charged to defendants 
 
        pursuant to Division of Industrial Services Rule 343-4.33, to 
 

 
        
 
 
 
 
 
        include the cost of the transcript of the hearing.
 
        
 
            That defendants file claim activity reports as requested by 
 
        this agency pursuant to Division of Industrial Services Rule 
 
        343-3.1.
 
        
 
            Signed and filed this 20th day of November, 1989.
 
        
 
        
 
        
 
        
 
        
 
        
 
        
 
                                     WALTER R. McMANUS, JR.
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Mr. Raymond E. Pogge
 
        Attorney at Law
 
        306 1st Federal Savings and Loan Bldg.
 
        PO Box 1502
 
        Council Bluffs, Ia 51501
 
        
 
        Mr. Kenneth Sacks
 
        Attorney at Law
 
        215 S. Main St.
 
        PO Box 1016
 
        Council Bluffs, IA 51502
 
        
 
        Mr. Greg Knoploh
 
        Assistant Attorney General
 
        Hoover State Office Bldg
 
        Des Moines, IA 50319
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                      1108.50; 1401; 1402.40;
 
                                      1802; 51803
 
                                      Filed November 20, 1989
 
                                      WALTER R. McMANUS, JR.
 
        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                      
 
                                      
 
        BEVERLY ALM,
 
        
 
             Claimant,
 
             
 
        vs.
 
                                                File No. 792278
 
        GLENWOOD STATE HOSPITAL SCHOOL
 
                                             A R B I T R A T I O N
 
        Employer,
 
                                                D E C I S I O N
 
        and
 
        
 
        STATE OF IOWA,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
        
 
        
 
        1108.50; 1401; 1402.40; 1802
 
        
 
             Claimant's recovery was prolonged due to being pregnant at 
 
             the time of the injury because she could not be x-rayed or 
 
             medicated. Held that women are part of the work force and 
 
             pregnancy and childbearing are to be anticipated by employers, 
 
             insurance carriers and employees. After the birth of the child 
 
             and breastfeeding objective tests ruled out serious injury. 
 
             Neurosurgeon made an appointment for claimant with a view to 
 
             releasing her to return to work. Claimant mysteriously became 
 
             dissatisfied with this doctor and started seeing her 
 
             brother-in-law who was a neurologist. Claimant never returned to 
 
             work and could not return to substantially similar employment. 
 
             Best date to terminate healing period, based on all the evidence 
 
             of the record, was when neurosurgeon made the appointment with 
 
             claimant with a view to return her to work. She never improved 
 
             after this date, but only got worse. Therefore, she reached 
 
             maximum medical improvement when the appointment was made to see 
 
             her with a view to return her to work.
 
        
 
        51803
 
        
 
             There was no impairment, impairment rating or restriction 
 
             information from the treating physician. Defendants' evaluator, 
 
             who apparently did not have the benefit of claimant's medical 
 
             history, awarded a 2 to 3 percent permanent impairment. 
 
             Neurologist, the brother-in-law, awarded 35 percent disability, 
 
             but did not know the difference between impairment and 
 
             disability. He also imposed permanent restrictions. Claimant was 
 
             foreclosed from former employments and would probably need 
 
             retraining or vocational rehabilitation. Claimant awarded 20 
 
             percent industrial disability.
 
        
 
        
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JUDY AMES,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 792332
 
            SILVEY REFRIGERATED CARRIERS, :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT WEST CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                                   INTRODUCTION
 
            
 
                 The record, including the transcript of the hearing 
 
            before the deputy and all exhibits admitted into the record, 
 
            has been reviewed de novo on appeal.
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                   I.  Whether Deputy Industrial Commissioner 
 
                 Walshire erred in finding that the claimant's 
 
                 current disability is related to a motor vehicle 
 
                 accident of March 25, 1985?
 
            
 
                  II.  Whether Deputy Commissioner Walshire erred 
 
                 in finding the claimant to be permanently and 
 
                 totally disabled?
 
            
 
                 III.  Whether claimant is entitled to any 
 
                 additional weekly benefits for the period of March 
 
                 1985 through June of 1988?
 
            
 
                  IV.  Whether Great West Casualty Company is 
 
                 liable for interest on unpaid benefits to the 
 
                 claimant since Silvey Refrigerated Carriers 
 
                 bankruptcy in April 1989 and further liable for 
 
                 interest or late penalties on medical bills?
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed October 6, 1992 are adopted as final agency 
 
            action.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The conclusions of law contained in the proposed agency 
 
            decision filed October 6, 1992 are adopted as set forth 
 
            below.  Segments designated by brackets ([ ]) indicate 
 
            language that is in addition to the language of the proposed 
 
            agency decision.
 
            
 
                 As the claimant has shown that the work injury was a 
 
            cause a permanent physical impairment or limitation upon 
 
            activity involving the body as a whole, the degree of 
 
            permanent disability must be measured pursuant to Iowa Code 
 
            section 85.34(2)(u).  However, unlike scheduled member 
 
            disabilities, the degree of disability under this provision 
 
            is not measured solely by the extent of a functional 
 
            impairment or loss of use of a body member.  A disability to 
 
            the body as a whole or an "industrial disability" is a loss 
 
            of earning capacity resulting from the work injury.  
 
            Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 
 
            N.W. 899 (1935).  A physical impairment or restriction on 
 
            work activity may or may not result in such a loss of 
 
            earning capacity.  Examination of several factors determines 
 
            the extent to which a work injury and a resulting medical 
 
            condition caused an industrial disability.  These factors 
 
            include the employee's medical condition prior to the 
 
            injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  See Peterson v. Truck Haven 
 
            Cafe, Inc., (Appeal Decision, February 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant 
 
            suffered a 100 percent or total loss of her earning capacity 
 
            as a result of the work injury.  Such a finding entitles 
 
            claimant to permanent total disability benefits as a matter 
 
            of law under Iowa Code section 85.34(3) which provides 
 
            benefits for an indefinite period of time into the future.  
 
            Absent a change in condition, such weekly benefits will 
 
            continue for the rest of claimant's life.  The benefits will 
 
            begin on August 17, 1985, the date claimant left work at 
 
            Silvey.                       
 
            
 
                 Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he/she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 With reference to the requested medical expenses in 
 
            this case, Exhibit I, defendants stipulated as these 
 
            expenses were causally connected to claimant's back 
 
            conditions.  As it was found that this condition is causally 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            connected to the work injury of March 22, 1985, the expenses 
 
            are reimbursable.  Given the stipulation regarding the 
 
            reasonableness issue, the expenses were found reasonable.  
 
            
 
                 With reference to the requested air fares, there is no 
 
            restriction on where claimant can live after a work injury.  
 
            If a residence is moved, defendants have the option to 
 
            change care to the area of claimant's residence.  In this 
 
            case, this was not done.  Therefore, claimant is entitled to 
 
            travel expenses from Georgia to see authorized physicians in 
 
            Nebraska.  Auto mileage expenses are reimbursed at the rate 
 
            of $.21 per mile.  Rule 343 IAC 8.1.
 
            
 
                 [Defendants' arguments on the imposition of interest 
 
            are without merit.  It is irrelevant that the particular 
 
            contract of insurance only obligated the insurer to pay the 
 
            first $100,000 of liability.  That is a matter between the 
 
            insurer and the employer.  Claimant is entitled to interest 
 
            on unpaid benefits under Iowa Code 85.30.
 
            
 
                 The fact that a bankruptcy stay order was in effect for 
 
            part of the pendency of the case is also irrelevant.  
 
            Interest under 85.30 accrues regardless of the conduct of 
 
            the employer.  Interest is not a penalty for misconduct or 
 
            bad faith.  The stay order has no effect on claimant's 
 
            entitlement to interest on her benefits.]
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay to claimant permanent total 
 
            disability benefits at a rate of two hundred three and 
 
            56/l00 dollars ($203.56) per week from August 17, 1985 for 
 
            an indefinite period during the period of claimant's 
 
            disability.
 
            
 
                 That defendants shall pay the medical expenses listed 
 
            in Exhibit I totalling four thousand six hundred sixty-nine 
 
            and 53/l00 dollars ($4,669.53) reimbursing mileage at the 
 
            rate of twenty-one cents ($.21) per mile. Claimant shall be 
 
            reimbursed for any of these expenses paid by her.  
 
            Otherwise, defendants shall pay the provider directly.*****
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            benefits previously paid.  
 
            
 
                 That defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 That defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 That defendants shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ____ day of August, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                      ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Reilly
 
            Attorney at Law
 
            4900 University  STE 200
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            405 6th Avenue  STE 700
 
            P O Box 9130
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed August 31, 1993
 
                                            BYRON K. ORTON
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            JUDY AMES,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 792332
 
            SILVEY REFRIGERATED CARRIERS, :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT WEST CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.
 
                 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDY AMES,                    :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 792332
 
            SILVEY REFRIGERATED CARRIERS, :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            GREAT WEST CASUALTY COMPANY,  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                          STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Judy 
 
            Ames, claimant, against Silvey Refrigerated Carriers, 
 
            employer, hereinafter referred to as Silvey, and Great West 
 
            Casualty Company, insurance carrier, defendants, for work
 
            ers' compensation benefits as a result of an alleged injury 
 
            on March 22, 1985.  On August 27, 1992, a hearing was held 
 
            on claimant's petition and the matter was considered fully 
 
            submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of con
 
            tested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On March 22, 1985, claimant received an injury 
 
            arising out of and in the course of employment with Silvey.
 
            
 
                 2.  Claimant has not been employed at Silvey since 
 
            August 17, 1985.
 
            
 
                 3.  If the injury is found to have caused permanent 
 
            disability, the type of disability is an industrial disabil
 
            ity to the body as a whole.
 
            
 
                 4.  At the time of injury claimant's gross rate of 
 
            weekly compensation was $341.00; she was single; and she was 
 
            entitled to one exemption.  Therefore, claimant's weekly 
 
            rate of compensation is $203.56 according to the Industrial 
 
            Commissioner's published rate booklet for this injury.
 
            
 
                 5.  With reference to the requested medical benefits, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Exhibit I, the parties stipulated that the providers of the 
 
            requested medical expenses would testify as to their neces
 
            sity and reasonableness and defendants are not offering con
 
            trary evidence.  Also with reference to these bills, it was 
 
            agreed that they were causally connected to the medical con
 
            dition upon which the claim herein is based but that the 
 
            issue of their causal connection to the work injury remains 
 
            an issue to be decided.
 
            
 
                                      ISSUES
 
            
 
                 The parties submitted the following issues for determi
 
            nation in this proceeding:
 
            
 
                  I.  The extent of claimant's entitlement to disability 
 
            benefits.
 
            
 
                 II.  The extent of claimant's entitlement to medical 
 
            benefits.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of the injury 
 
            and disability.  From her demeanor while testifying and the 
 
            demeanor of her supporting witnesses, claimant is found 
 
            credible.  Both of claimant's character witnesses, one of 
 
            whom was a police officer, were very credible.
 
            
 
                 Claimant was 51 years of age on the date of hearing.  
 
            She has completed high school at University High School in 
 
            Lincoln, Nebraska in 1959.  Other than attending a truck 
 
            driving school and an office management school, claimant has 
 
            no further formalized education or training.
 
                                                                        
 
            From 1960 to 1961, claimant worked as a keypunch operator 
 
            for International Business Machines.  From 1961 to 1984, she 
 
            worked for the Carter Hotel and Restaurant in Hastings, 
 
            Nebraska.  Her initial position at the Carter Hotel was as 
 
            the bookkeeper.  She then became "head of restaurant employ
 
            ees", and eventually she purchased the business in 1972.  
 
            After selling her interest in the Carter Hotel in 1983, in 
 
            1984 claimant went to work for the defendant, Silvey 
 
            Refrigerated Carriers.
 
            
 
                 She described her health before joining Silvey Refrig
 
            erated Carriers as fine.  She had never sustained any 
 
            injuries to her back and had never really been ill.
 
            
 
                 On the date of her March 22, 1985 injury, claimant was 
 
            assigned the duty of "shag" (tractor-trailer) driver.  On 
 
            this day her job consisted of a shag trip of approximately 
 
            200 miles to Minden, Nebraska from Council Bluffs, Iowa.  
 
            Her specific task on that day consisted of driving an empty 
 
            trailer to a beef packing company in Minden, waiting for the 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            trailer to be loaded and then returning with the loaded 
 
            trailer to Council Bluffs, Iowa.
 
            
 
                 The process of loading the trailer took approximately 
 
            eight hours.  While waiting claimant slept in her tractor.  
 
            She then returned to the beef plant, hooked-up the trailer 
 
            and proceeded west on highway #6.
 
            
 
                 After traveling for only approximately 22 miles on the 
 
            highway, claimant noticed that a farm tractor which was par
 
            tially on and partially off the road was moving toward her.  
 
            Simultaneously she saw another vehicle, also moving toward 
 
            her, which was attempting to pass the farm tractor.  At that 
 
            moment she realized that there was not enough space on the 
 
            road to accommodate the vehicle that she was driving and the 
 
            two other vehicles moving in her direction.  Although she 
 
            braked her vehicle and swerved it as far off of the road as 
 
            was possible, the oncoming vehicle, nevertheless, collided 
 
            head-on into her vehicle.
 
            
 
                 As a result of the accident. claimant was originally 
 
            diagnosed as having sustained a fractured tailbone, a lumbar 
 
            strain and extensive damage to her teeth and a fractured 
 
            jaw.  The driver of the vehicle with whom she collided was 
 
            dead on the scene.
 
            
 
                 From the time of her injuries on March 22, 1985, and at 
 
            all times since, claimant has complained of back pain radi
 
            ating into her leg.  Due to continuing symptoms, claimant's 
 
            treating orthopedic surgeon, Michael J. Morrison, M.D., per
 
            formed back surgery on November 18, 1985.
 
            
 
                 Dr. Morrison's surgery consisted of a hemilaminectomy 
 
            L4-L5 left with disc removal.  Following her surgery, 
 
            claimant's leg pain improved, but by March 12, 1986, she 
 
            continued to have lower back and buttock pain.  Because of 
 
            her continued pain, Dr. Morrison referred her to Daniel L. 
 
            McKinney, M.D., a neurosurgeon, for his opinion concerning 
 
            her symptoms.
 
            
 
                 Following an April 1, 1986 office visit, Dr. McKinney 
 
            recommended that claimant continue with conservative treat
 
            ment consisting of injections of Celestone.  
 
            
 
                 On November 4, 1986, claimant was still bothered by 
 
            pain in her lower back with periodic radiation into her left 
 
            hip and gluteal area.  Consequently on November 21, 1986, 
 
            she underwent surgery for a second time.  This surgery was 
 
            performed by Gerald E. Ries, M.D., another orthopedic sur
 
            geon.  This second surgery consisted of a partial hemil
 
            aminectomy with removal of the disc at L4-L5 on the left.
 
            
 
                 During her December 15, 1986 visit to Dr. Ries, 
 
            claimant complained of a lot of pain in both of her glutei.  
 
            Additionally, during her visits with Dr. Ries from January 
 
            9, 1987 through August 18, 1987, she continued to have pain 
 
            in her lower back and left leg.
 
            
 
                 Ultimately, on August 18, 1987, in an attempt to 
 
            relieve her persistent pain, Dr. Ries decided to admit her 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            for a myelogram.  At that time, Dr. McKinney concurred with 
 
            Dr. Ries.  Dr. McKinney's impression was that she has a 
 
            "herniated lumbar intervertebral disc with residual radicu
 
            lopathy."
 
            
 
                 On August 24, 1987, D. E. Rosenburg, M.D., performed a 
 
            "causal block (morphine type) and she had very good relief, 
 
            but then physical therapy with traction was instituted the 
 
            next day [and] her pain returned."  On August 27, 1987, Dr. 
 
            McKinney, with the assistance of Dr. Ries, operated on her 
 
            for the third time, performing a left hemilaminectomy, L-4 
 
            and disc removal.
 
            
 
                 Following her third surgery claimant stated that walk
 
            ing aggravated her pain.  Prior to this time, walking helped 
 
            the pain.  She said that the pain in her left is quite 
 
            severe.  Ultimately, on March 15, 1988, Dr. Ries stated that 
 
            she was never going to be better, never going to be able to 
 
            return to work and that she was totally disabled.
 
            
 
                 It is found that the work injury of March 22, 1985 was 
 
            a cause of a 20-30 percent permanent impairment to the body 
 
            as a whole.  Also, claimant is unable to perform physical 
 
            activities consisting of lifting over 10 pounds; stooping 
 
            and bending without pain; standing over 5 minutes; prolonged 
 
            sitting without changing positions constantly; driving over 
 
            a few blocks; and reaching down or above head level.  These 
 
            findings are based upon the views of the treating physicians 
 
            set forth above.  The restrictions are claimant's own 
 
            self-described limitations which are found credible.  An 
 
            functional capacities evaluation was attempted in October 
 
            1991 but had to be discontinued due to claimant's pain.
 
            
 
                 The self-described limitations are most consistent with 
 
            the views of claimant's most recent physician, Gerald E. 
 
            Ries, M.D., who believes claimant is physically unable to 
 
            work.  Michael J. Morrison, M.D., felt claimant could work 
 
            but his treatment ended in the fall of 1986.  In addition to 
 
            claimant's primary treating physician discussed above, 
 
            claimant has been evaluated by four other doctors--two 
 
            orthopedic surgeons, one neurosurgeon and one internist who 
 
            is a pain center director.  The opinions of these physicians 
 
            varied considerably. One rejected the causal connection of 
 
            any of claimant's back problems to the work injury and even 
 
            indicated that claimant had no disability.  Others rated the 
 
            permanent impairment and restrictions differently.  These 
 
            one-time evaluator opinions were rejected because the record 
 
            established that although the type of complaints made by 
 
            claimant over the years have been consistent since the 
 
            injury, the intensity and duration of these complaints var
 
            ied from day to day, week to week.  One time evaluators 
 
            caught claimant on either a good or bad day and their 
 
            results varied accordingly.  Consequently, only those treat
 
            ing physicians having long-term clinical experience with 
 
            claimant should be relied upon to accurately assess her 
 
            injury.  Of these the most recent treating physician who 
 
            performed the last surgery, Dr. Ries who has treated 
 
            claimant since 1986, had the best perspective as to assess
 
            ing claimant's current condition.  
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                 Most of the treating and evaluating physicians causally 
 
            connected claimant's current back and leg problems to the 
 
            original work injury of March 22, 1985.  There was disagree
 
            ment as to whether claimant's continuing problems in the 
 
            left foot were from radiating pain as a result of scarring 
 
            in the back from the injury and surgeries or from sympa
 
            thetic reflex dystrophy arising from the back injury.  The 
 
            treating physicians were of the opinion that claimant's leg 
 
            and foot pain originated from the back injury and are given 
 
            the most weight.  However, the exact diagnosis is unimpor
 
            tant as either condition was opined to be the result of the 
 
            work injury.
 
            
 
                 Also, the internist and pain center director, Medha 
 
            Pradhan, M.D., causally relates a recent complaint of upper 
 
            back myofascitis to the original injury as claimant is over 
 
            stressing the upper back and upper extremities to compensate 
 
            for the pain in the lower back and extremities.  This opin
 
            ion is uncontroverted.  Therefore, the upper back, extremi
 
            ties and shoulder pain complaints are also found work 
 
            related and compensable.  
 
            
 
                 Claimant's medical condition before the work injury was 
 
            excellent. She had no functional impairments or ascertain
 
            able disabilities.  Claimant was able to fully perform phys
 
            ical tasks involving heavy lifting; repetitive lifting, 
 
            bending, twisting and stooping; and, prolonged standing, 
 
            sitting and driving.  Due to her current physical limita
 
            tions, claimant's medical condition prevents her from 
 
            returning to truck driving or any other heavy or medium man
 
            ual labor work.  Claimant's past employment as a 
 
            self-employed hotel owner and operator provides her with 
 
            vast transferable skills but her severe pain severely limits 
 
            the ability to use these skills in alternative employment 
 
            even in sedentary jobs.  
 
            
 
                 The employability views of vocational counselors testi
 
            fying in this case varied greatly.  One hired by claimant 
 
            opined that she was unemployable. Another retained by defen
 
            dants states that she is employable as a desk clerk, 
 
            hotel/motel manager, bookkeeper, cashier or bank teller.  
 
            Both claim to have performed a job search in the area of 
 
            claimant's current residence in Georgia.  One found no open
 
            ings and the other claims to have found two openings.  None 
 
            of the possible openings were referred to claimant.  
 
            Claimant has only applied with ten possible employers over 
 
            the last couple of years.  She is receiving social security 
 
            disability and expressed a desire at hearing not to affect 
 
            this entitlement.  Claimant has clearly withdrawn from the 
 
            labor market.  It is found, however, that this withdrawal 
 
            from the labor market was not voluntary but the result of 
 
            claimant's pain and activity limitations caused by the work 
 
            injury.  Despite defendants' assertations that jobs are 
 
            available to her, she today remains unemployed.  Only on 
 
            occasion does she obtain part-time work in arts and crafts 
 
            but the income from such work is too small and irregular to 
 
            sustain claimant's needs.  Claimant is precluded from full 
 
            time gainful employment.
 
            
 
                 Silvey failed to offer alternative employment to 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            claimant but Silvey went bankrupt and ended operations after 
 
            claimant's work injury.  
 
            
 
                 From examination of all of the factors of industrial 
 
            disability, it is found that the work injury of March 22, 
 
            1985 was a cause of a 100 percent or total loss of earning 
 
            capacity.  It is found that claimant's disability began when 
 
            she left work on August 17, 1985.
 
            
 
                 The requested medical expenses listed in exhibit I are 
 
            found casually related to the work injury and reasonable.  
 
            Claimant moved to the state of Georgia after the work injury 
 
            on May 28, 1986 to live with her parents to obtain financial 
 
            and physical assistance.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 I.  As the claimant has shown that the work injury was 
 
            a cause a permanent physical impairment or limitation upon 
 
            activity involving the body as a whole, the degree of perma
 
            nent disability must be measured pursuant to Iowa Code sec
 
            tion 85.34(2)(u).  However, unlike scheduled member disabil
 
            ities, the degree of disability under this provision is not 
 
            measured solely by the extent of a functional impairment or 
 
            loss of use of a body member.  A disability to the body as a 
 
            whole or an "industrial disability" is a loss of earning 
 
            capacity resulting from the work injury.  Diederich v. 
 
            Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899 
 
            (1935).  A physical impairment or restriction on work 
 
            activity may or may not result in such a loss of earning 
 
            capacity.  Examination of several factors determines the 
 
            extent to which a work injury and a resulting medical 
 
            condition caused an industrial disability.  These factors 
 
            include the employee's medical condition prior to the 
 
            injury, immediately after the injury and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  See Peterson v. Truck Haven 
 
            Cafe, Inc., (Appeal Decision, February 28, 1985).
 
            
 
                 In the case sub judice, it was found that claimant suf
 
            fered a 100 percent or total loss of her earning capacity as 
 
            a result of the work injury.  Such a finding entitles 
 
            claimant to permanent total disability benefits as a matter 
 
            of law under Iowa Code section 85.34(3) which provides bene
 
            fits for an indefinite period of time into the future.  
 
            Absent a change in condition, such weekly benefits will con
 
            tinue for the rest of claimant's life.  The benefits will 
 
            begin on August 17, 1985, the date claimant left work at 
 
            Silvey.                       
 
            
 
                 II.  Pursuant to Iowa Code section 85.27, claimant is 
 
            entitled to payment of reasonable medical expenses incurred 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            for treatment of a work injury.  Claimant is entitled to an 
 
            order of reimbursement if he/she has paid those expenses.  
 
            Otherwise, claimant is entitled only to an order directing 
 
            the responsible defendants to make such payments directly to 
 
            the provider.  See Krohn v. State, 420 N.W.2d 463 (Iowa 
 
            1988).
 
            
 
                 With reference to the requested medical expenses in 
 
            this case, Exhibit I, defendants stipulated as these 
 
            expenses were causally connected to claimant's back condi
 
            tions.  As it was found that this condition is causally con
 
            nected to the work injury of March 22, 1985, the expenses 
 
            are reimbursable.  Given the stipulation regarding the rea
 
            sonableness issue, the expenses were found reasonable.  
 
            
 
                 With reference to the requested air fares, there is no 
 
            restriction on where claimant can live after a work injury.  
 
            If a residence is moved, defendants have the option to 
 
            change care to the area of claimant's residence.  In this 
 
            case, this was not done.  Therefore, claimant is entitled to 
 
            travel expenses from Georgia to see authorized physicians in 
 
            Nebraska.  Auto mileage expenses are reimbursed at the rate 
 
            of $.21 per mile.  Rule 343 IAC 8.1.
 
            
 
                                      ORDER
 
            
 
                 1.  Defendants shall pay to claimant permanent total 
 
            disability benefits at a rate of two hundred three and 
 
            56/l00 dollars ($203.56) per week from August 17, 1985 for 
 
            an indefinite period during the period of claimant's 
 
            dis-ability.
 
            
 
                 2.  Defendants shall pay the medical expenses listed in 
 
            Exhibit I totalling four thousand six hundred sixty-nine and 
 
            53/l00 dollars ($4,669.53) reimbursing mileage at the rate 
 
            of twenty-one cents ($.21) per mile. Claimant shall be reim
 
            bursed for any of these expenses paid by her.  Otherwise, 
 
            defendants shall pay the provider directly along with any 
 
            lawful late payment penalties imposed upon the account by 
 
            the provider.
 
            
 
                 3.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for 
 
            benefits previously paid.  
 
            
 
                 4.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 5.  Defendants shall pay the costs of this action pur
 
            suant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 6.  Defendants shall file activity reports on the pay
 
            ment of this award as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 
            
 
            
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            
 
            
 
            Copies To:
 
            
 
            Mr. Thomas J. Reilly
 
            Attorney at Law
 
            4900 University  STE 200
 
            Des Moines, Iowa  50311
 
            
 
            Mr. Stephen W. Spencer
 
            Attorney at Law
 
            218 6th Avenue  STE 300
 
            P O Box 9130
 
            Des Moines, Iowa  50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            October 6, 1992
 
                                            LARRY P. WALSHIRE
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            JUDY AMES,     
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                 File No. 792332
 
            SILVEY REFRIGERATED CARRIERS, 
 
                                             A R B I T R A T I O N
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            GREAT WEST CASUALTY COMPANY,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            
 
            5-1803
 
            Non-precedential, extent of disability case.