BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            RICHARD BREWER,               :         File Nos. 796082
 
                                          :                   922371
 
                 Claimant,                :                   926607
 
                                          :                  1025784
 
            vs.                           :
 
                                          :      
 
            HY-VEE FOOD STORES,           :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :        D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ------------------------------------------------------------
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            Brewer, claimant, against Hy-Vee Food Stores, employer, and 
 
            Employer Mutual, insurance carrier, defendants, to recover 
 
            benefits under the Iowa Workers' Compensation Act as a 
 
            result of injuries sustained on May 21, 1985; June 29, 1989; 
 
            August 8, 1989; and February 25, 1992.  This matter came on 
 
            for hearing before the undersigned deputy industrial 
 
            commissioner on February 3, 1994, in Des Moines, Iowa.  The 
 
            record was considered fully submitted at the close of the 
 
            hearing.  The claimant was present and testified.  The 
 
            documentary evidence identified in the record consists of 
 
            joint exhibits 1 through 68 in file number 796082; joint 
 
            exhibits 1 through 9 in file number 922371; joint exhibits 1 
 
            through 7 in file number 926607; and joint exhibits 1 
 
            through 8 in file number 1025784. 
 
            
 
                                      ISSUES
 
            
 
                 .  In file number 796082 the issue is the extent of 
 
            permanent partial disability benefits, if any;
 
            
 
                 .  In file number 922371 the issue is the extent of 
 
            permanent partial disability benefits, if any;
 
            
 
                 .  In file number 926607 the issue is whether claimant 
 
            is entitled to ongoing medical care for a work-related back 
 
            injury;
 
            
 
                 .  In file number 1025784 the issues are whether 
 
            claimant sustained an injury to his right knee on February 
 
            25, 1992, which arose out of and in the course of employment 
 
            with employer and, if so, whether the alleged injury is a 
 
            cause of temporary disability during a period of recovery.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
                              FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant testified that he was born on June 24, 1934, 
 
            and completed the twelfth grade of school.  He served two 
 
            years in the United States Army.  His primary work activity 
 
            has been as a truck driver.  He commenced working part-time 
 
            for employer in July 1976 and in January 1982 became a 
 
            full-time truck driver.  This job included unloading and 
 
            delivery of grocery items. 
 
            
 
                 On May 21, 1985, while pulling on a load of groceries, 
 
            claimant slipped and fell, twisting his neck.  He was 
 
            initially treated at Mater Clinic in Knoxville, Iowa.  
 
            Claimant testified that he participated in physical therapy 
 
            while taking muscle relaxants and his condition improved.  
 
            He returned to work and his condition deteriorated.  On 
 
            April 3, 1986, he presented to David J. Boarini, M.D., a 
 
            board certified neurological surgeon.  He was thought to 
 
            have myofascial neck pain and was given anti-inflammatory 
 
            medication and put in a soft cervical collar.  Claimant's 
 
            condition did not improve and a myelogram was eventually 
 
            performed.  According to Dr. Boarini, the myelogram revealed 
 
            nerve impingement at one level from his cervical 
 
            spondylosis.  On January 7, 1987, claimant underwent an 
 
            anterior cervical fusion at C6-7.  Dr. Boarini released 
 
            claimant to return to work on September 8, 1987.  On 
 
            November 8, 1987, he gave claimant a 6-7 percent permanent 
 
            impairment rating based on the anterior cervical fusion and 
 
            some residual numbness.  Dr. Boarini examined claimant on 
 
            April 17, 1991.  Claimant presented with complaints of neck 
 
            stiffness.   After conducting a physical examination and 
 
            reviewing cervical spine films, Dr. Boarini stated that 
 
            claimant is status postcervical fusion with no residual 
 
            neurological deficit but some cervical spondylosis which 
 
            causes neck stiffness and pain.  He stated that this is 
 
            degenerative in nature and not related to any injury.  He 
 
            indicated that claimant did not have any new permanent or 
 
            partial impairment or significant work-related injury to his 
 
            neck.  Dr. Boarini diagnosed cervical spondylosis which he 
 
            described as degenerative arthritis in the neck.  
 
            
 
                 The record indicates that as early as November 30, 
 
            1986, claimant complained to Dr. Boarini regarding pain and 
 
            occasional numbness in his hands.  In June 1989 claimant 
 
            presented to Dr. Boarini with complaints of wrist tenderness 
 
            and pain.  EMG studies revealed right carpal tunnel 
 
            syndrome.  Dr. Boarini scheduled surgery for July 5, 1989, 
 
            but the insurance carrier intervened and requested a second 
 
            opinion.  On February 12, 1992, claimant saw John G. Ganske, 
 
            M.D., for evaluation.  Dr. Ganske indicated that claimant's 
 
            bilateral carpal tunnel symptoms were work related and 
 
            caused by strongly gripping the steering wheel for hours at 
 
            a time, frequently over rough roads with vibration in the 
 

 
            
 
            Page   3
 
            
 
            
 
            steering wheel.  He felt that claimant's symptoms were 
 
            getting worse and that he needed surgery.  On February 25, 
 
            1992, claimant underwent right carpal tunnel release and on 
 
            March 18, 1992, he underwent the same procedure on the left.  
 
            Dr. Ganske released claimant to return to work on May 4, 
 
            1992.  On September 25, 1992, he examined claimant and noted 
 
            improved grip strength and 100 percent range of motion of 
 
            his hands with resolution of preoperative symptoms.  Dr. 
 
            Ganske indicated that claimant had no permanent partial 
 
            disability related to his carpal tunnel syndromes.  However, 
 
            Dr. Boarini testified in a deposition that he would assign 
 
            an impairment rating between 0 and 2 percent for successful 
 
            carpal tunnel release.  Nevertheless, he admitted that he 
 
            had not examined claimant since June 29, 1989, and was not 
 
            aware of the results of claimant's 1992 surgeries.  Claimant 
 
            was seen by S. Randy Winston on December 11, 1992, for an 
 
            independent medical examination.  He assessed a 2 percent 
 
            permanent impairment to the upper extremities due to mild 
 
            residual weakness in the right hand.  
 
            
 
                 On August 18, 1989, claimant twisted his back while 
 
            unloading pallets.  He was diagnosed with low back strain 
 
            and released to return to work on August 21, 1989, by 
 
            Laurence K. Rasmussen, M.D.
 
            
 
                 Claimant presented to Joshua D. Kimmelman, D.O., on 
 
            June 30, 1992, with complaints of right knee pain.  On July, 
 
            9, 1992, he presented a leave of absence form to his 
 
            employer in which he indicated that on June 16, 1981, he got 
 
            kicked in the knee by a calf while moving cattle and has 
 
            aggravated his knee on numerous occasions since then.  
 
            Claimant was unable to otherwise pinpoint the date of an 
 
            accident or the first appearance of symptoms.  Dr. Kimmelman 
 
            thought he had a medial meniscus tear and scheduled him for 
 
            an operative arthroscopy.  This was accomplished on July 10, 
 
            1992, at which time a partial medial meniscectomy was 
 
            carried out.  Claimant was off work from July 10, 1992 
 
            through August 24, 1992, when Dr. Kimmelman released him to 
 
            return to work full time as a truck driver.  Claimant's 
 
            medical bills were paid by the group health carrier because 
 
            claimant reported the injury as nonwork related.  It was Dr. 
 
            Kimmelman's opinion that claimant's knee problems were the 
 
            result of normal wear and tear of weight bearing stress and 
 
            not pushing on the pedal of a truck.  
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 In file number 796082 there is no dispute that claimant 
 
            sustained an injury to his neck on May 21, 1985, arising out 
 
            of and in the course of employment with employer and that 
 
            such injury resulted in temporary and permanent disability.  
 
            Claimant was paid healing period benefits and 32.5 weeks of 
 
            permanent partial disability benefits based on Dr. Boarini's 
 
            impairment rating.  Claimant wants an assessment of 
 
            industrial disability because he feels that he is entitled 
 
            to more than he was paid.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references 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 dis
 
            ability 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 the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the 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.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  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.  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 as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 The record does not support claimant's contention.  
 
            Claimant was released to return to work on September 8, 
 
            1987, by Dr. Boarini.  No physical restrictions or 
 
            limitations were imposed.  Dr. Boarini testified in a 
 
            deposition on November 16, 1992.  When asked whether he 
 
            found any new permanent partial impairment to claimant's 
 
            neck on April 26, 1991, he responded that he did not.  When 
 
            further asked whether he would impose any restrictions with 
 
            regard to his neck, he commented as follows:
 
            
 
                    He has an arthritic neck, and it may be that it 
 
                 will become symptomatic -- more symptomatic the 
 
                 older he gets; and he may eventually need some 
 
                 restrictions in terms of what he can lift because 
 
                 of symptoms from the arthritic neck.  I did not 
 
                 give him any based upon his surgery or how he was 
 
                 in 1991, but he may need some in the future.
 
            
 
                 Claimant returned to his usual and customary job with 
 
            employer in September 1987 and performed his job without 
 
            incident until problems with his hands and wrists surfaced 
 
            in 1989.  Nevertheless, testimony elicited from claimant 
 
            shows that his wages with employer have been in the $38,000 
 
            to $43,000 range between 1989 and 1993.  Claimant's neck 
 
            injury has not increased his industrial disability.
 
            
 
                 Claimant has not shown by a preponderance of the 
 
            evidence that he is entitled to additional permanent partial 
 
            disability benefits as a result of his work-related neck 
 
            injury on May 21, 1985.  
 
            
 
                 In file number 922371 claimant alleges bilateral hand 
 
            problems since June 29, 1989.  At the hearing, defendants 
 
            admitted liability for the injury and also admitted that 
 
            such injury caused claimant temporary disability during a 
 
            period of recovery.  However, they deny that claimant's 
 
            bilateral hand/wrist problems have caused permanent 
 
            impairment.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury is a proximate 
 
            cause of the disability on which the claim is based.  A 
 
            cause is proximate if it is a substantial factor in bringing 
 
            about the result; it need not be the only cause.  A 
 
            preponderance of the evidence exists when the causal 
 
            connection is probable rather than merely possible.  
 
            Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 
 
            1980); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 
 
            (Iowa 1974).
 
            
 
                 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 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            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).
 
            
 
                 A wrist injury is an injury to the hand, not the upper 
 
            extremity.  The hand extends to the distal end of the radius 
 
            and ulna, including the carpus or wrist.  Elam v. Midland 
 
            Mfg., II Iowa Industrial Commissioner Report 141 (App. 
 
            1981).
 
            
 
                 Dr. Ganske, claimant's treating surgeon, emphatically 
 
            states that, "There will be no permanent partial disability 
 
            related to his carpal tunnel syndromes and I will see him 
 
            back only if he has any further questions or problems."
 
            
 
                 Claimant returned to his usual and customary occupation 
 
            as a truck driver on May 4, 1992.  He worked without 
 
            restrictions or limitations.  He worked without incident 
 
            until he was taken off work in July 1992 for surgical repair 
 
            of his right knee.  There is no evidence to dispute Dr. 
 
            Ganske's assessment that claimant's bilateral carpal tunnel 
 
            releases have produced no permanent impairment.  Claimant 
 
            never returned to Dr. Ganske with questions or problems.
 
            
 
                 In file number 926607 claimant alleges an injury to his 
 
            back on August 8, 1989, which arose out of and in the course 
 
            of employment with employer.  Defendants have admitted 
 
            liability in this case and have paid all of claimant's 
 
            medical benefits.  Claimant is not requesting temporary or 
 
            permanent benefits in this claim, therefore, there are not 
 
            unresolved issues to decide.  
 
            
 
                 In file number 1025784 claimant alleges that he 
 
            sustained a right knee injury on February 25, 1992, arising 
 
            out of and in the course of employment with employer.  
 
            Defendants deny liability of this claim.  Claimant requests 
 
            a decision as to defendants' compensability and an award of 
 
            temporary total disability benefits during his time off work 
 
            from July 10, 1992 through August 21, 1992.
 
            
 
                 Claimant has the burden of proving by a preponderance 
 
            of the evidence that he received an injury on February 25, 
 
            1992, which arose out of and in the course of his 
 
            employment. McDowell v. Town of Clarksville, 241 N.W.2d 904, 
 
            908 (Iowa 1976); Musselman v. Central Telephone Co., 154 
 
            N.W.2d 128, 130 (Iowa 1967).  The words "arising out of" 
 
            have been interpreted to refer to the cause and origin of 
 
            the injury.  McClure v. Union County, 188 N.W.2d 283, 287 
 
            (Iowa 1971);   Crowe v. DeSoto Consolidated School District, 
 
            68 N.W.2d 63, 65 (Iowa 1955).  The words "in the course of" 
 
            refer to the time, place and circumstances of the injury.  
 
            McClure, 188 N.W.2d at 287; Crowe, 68 N.W.2d at 65.  An 
 
            injury occurs in the course of the employment when it is 
 
            within the period of employment at a place the employee may 
 
            reasonably be, and while the employee is doing work assigned 
 
            by the employer or something incidental to it.  Cedar Rapids 
 
            Community School District v. Cady, 278 N.W.2d 298, 299 (Iowa 
 
            1979), McClure, 188 N.W.2d at 287; Musselman, 154 N.W.2d at 
 
            130. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
                 The supreme court has defined a personal injury for the 
 
            purposes of workers' compensation cases.  Almquist v. 
 
            Shenandoah Nurseries, 254 N.W. 35, 38 (Iowa 1934).  In this 
 
            case the court found that a personal injury, is an injury to 
 
            the body, the impairment of health, or a disease, not 
 
            excluded by the Workers Compensation Act, which comes about, 
 
            not through the natural building up and tearing down of the 
 
            human body, but because of a traumatic or other hurt or 
 
            damage to the health or body of an employee.  The injury to 
 
            the human body must be something, whether an accident or 
 
            not, that acts extraneously to the natural processes of 
 
            nature, and thereby impairs the health, overcomes, injures, 
 
            interrupts, or destroys some function of the body, or 
 
            otherwise damages or injures a part or all of the body.  
 
            
 
                 The Almquist court further observed that while a 
 
            personal injury does not include an occupational disease 
 
            under the Workmen's Compensation Act, yet an injury to the 
 
            health may be a personal injury.  A personal injury includes 
 
            a disease resulting from an injury.  However, the result of 
 
            changes in the human body incident to the general processes 
 
            of nature do not amount to a personal injury.  This is true, 
 
            even though natural change may come about because the life 
 
            has been devoted to labor and hard work.  Results of those 
 
            natural changes do not constitute a personal injury even 
 
            though the same brings about impairment of health or the 
 
            total or partial incapacity of the functions of the human 
 
            body. 
 
            
 
                 The supreme court has also recognized that a cumulative 
 
            injury may occur over a period of time.  The injury in such 
 
            cases occurs when, because of pain or physical disability, 
 
            the claimant is compelled to leave work.  McKeever Custom 
 
            Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985).  
 
            Moreover, claimant's last employer becomes liable for the 
 
            cumulative injury, even if the incidents that lead to the 
 
            ultimate injury do not occur while a claimant is employed 
 
            with the last employer.  McKeever, 379 N.W.2d at 376; See 
 
            also, Doerfer Division of CCA v. Nicol, 359 N.W.2d 428, 
 
            434-35 (Iowa 1984).
 
            
 
                 Claimant does not allege a specific work injury nor 
 
            does he allege a cumulative injury.  Claimant, who has more 
 
            than a passing familiarity with the workers' compensation 
 
            system, requested a leave of absence from employer to treat 
 
            a nonwork-related knee injury.  Claimant's group health 
 
            insurance plan paid his medical bills.  Claimant never told 
 
            Dr. Kimmelman that he felt his knee problems were a result 
 
            of pushing on the pedal of his truck.  In fact, the history 
 
            he related indicates that he got kicked in the knee by a 
 
            calf while moving cattle in June 1981 and has had numerous 
 
            aggravations since then.  In any event, Dr. Kimmelman 
 
            attributes claimant's knee problems to normal wear and tear 
 
            of weight bearing stress on his knee rather than 
 
            nonweightbearing stress of pushing on a truck pedal.  
 
            
 
                 Accordingly, claimant has not met his burden of proof.  
 
            He has not shown by a preponderance of the evidence that he 
 
            sustained an injury to his right knee on February 25, 1992, 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 In file number 796082:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 In file number 922371:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 In file number 726607:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 In file number 1025784:
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 The costs of these actions are assessed to defendants 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ________ day of February, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Harry Dahl
 
            Attorney at Law
 
            974 - 73rd St, STE 16
 
            Des Moines, Iowa  50312
 
            
 
            Mr. James Tichenor
 
            Attorney at Law
 
            4044 SE 14th St
 
            Des Moines, Iowa  50320-1673
 
            
 
            Mr. Marvin Duckworth
 
            Attorney at Law
 
            2700 Grand Ave STE 111
 
            Des Moines, Iowa  50312
 
            
 
            
 
 
         
 
         
 
         
 
         
 
                                             51803 51801
 
                                             Filed February 15, 1994
 
                                             Jean M. Ingrassia
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ----------------------------------------------------------------
 
                   
 
         RICHARD BREWER,                     File Nos. 796082
 
                                                       922371
 
              Claimant,                                926607
 
                                                      1025784
 
         vs.       
 
                         
 
         HY-VEE FOOD STORES, 
 
                                           A R B I T R A T I O N
 
              Employer, 
 
                                             D E C I S I O N
 
         and       
 
                   
 
         EMPLOYERS MUTUAL,   
 
                   
 
              Insurance Carrier,  
 
              Defendants.    
 
         ----------------------------------------------------------------
 
         
 
         51803
 
         In file number 796082 claimant sustained work-related injury on 
 
         May 21, 1985.  He was awarded 6.5 percent permanent partial 
 
         disability benefits based on his treating surgeon's 6-7 percent 
 
         permanent partial disability impairment rating.  Claimant 
 
         requests additional industrial disability.  
 
         Claimant was released to return to work on September 8, 1987, 
 
         without any medical restrictions or limitations.  Claimant 
 
         returned to his job as a truck driver with employer and performed 
 
         all of the duties required and those which he had performed prior 
 
         to surgery.  Claimant worked without incident until February 1992 
 
         when he underwent bilateral carpal tunnel release.
 
         In file number 922371 claimant underwent bilateral carpal tunnel 
 
         release in February 1992 as a result of an alleged work injury in 
 
         June 1989.  Claimant's treating surgeon released him to return to 
 
         work in September 1992 with no physical restrictions or 
 
         limitations and no permanent disability.  
 
         
 
         51801
 
         In file number 1025784 claimant alleges a work-related injury to 
 
         his right knee on February 25, 1992.  Statements made by claimant 
 
         to his treating surgeon indicate that his injury was nonwork 
 
         related.  Claimant did not meet his burden of proof and his 
 
         injury was determined not to be a compensable workers' 
 
         compensation injury.
 
         In file number 922607, claimant sustained a back injury on August 
 
         8, 1989.  Defendants admitted liability and paid all of 
 
         claimant's medical bills.  Claimant is not requesting temporary 
 
         or permanent workers' compensation benefits,  Therefore, there 
 
         are no unresolved issues to decide.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            JAMES H. SOPPE, 	      :
 
		                      :
 
                 Claimant,	      :
 
		                      :
 
		            vs.       :
 
                		      :         File No. 796271
 
            ENERGY MANUFACTURING COMPANY,:
 
		                      :           A P P E A L
 
                 Employer,	      :
 
		                      :         D E C I S I O N
 
		            and       :
 
                		      :
 
            HOME INSURANCE COMPANY,   :
 
		                      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            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.  The decision of the deputy 
 
            filed February 15, 1990, is affirmed and is adopted as the 
 
            final agency action in this case, with the following 
 
            additional analysis:
 
            A cause is proximate if it is a substantial factor in 
 
            bringing about the result.  It need be only one cause of the 
 
            result; it need not be the only cause.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348, 354 (Iowa 1980).
 
            The work incident or activity need not be the sole proximate 
 
            cause if the injury is directly traceable to the work 
 
            incident or activity.  Holmes v. Bruce Motor Freight, Inc., 
 
            215 N.W.2d 296, 297 (Iowa 1974).
 
            Defendants make much ado out the fact that the opinions of 
 
            Drs. Turner and LaMorgese relating claimant's condition to 
 
            his work activities was based on the history claimant gave 
 
            each physician.  They speculate that nonwork activities 
 
            might well have contributed to claimant's condition and that 
 
            the doctors had no awareness of any such activities.  
 
            Defendants offer no evidence of any nonwork activities which 
 
            might have caused claimant's injury, however.  Given the 
 
            lack of evidence of such activities, it cannot be presumed 
 
            that they existed.
 
            Furthermore, our experience is that physicians, in taking a 
 
            history, ask about a variety of claimant's life activities.  
 
            Certainly, had nonwork activities existed which the 
 
            physicians felt on questioning claimant while taking his 
 
            history were possible contributing causes, the physicians 
 
            would have recorded such activities.  Hence, defendants' 
 
            contention appears to be factually unfounded.
 
            Furthermore, the record clearly shows that the physicians 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            believed claimant's work activities were a substantial 
 
            factor in producing claimant's injury and subsequent 
 
            disability.  Therefore, even had nonwork activities existed, 
 
            the work activity as a substantial factor would still be a 
 
            proximate cause of claimant's injury and of defendants' 
 
            ensuing liability.
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                      ______________________________
 
                             BYRON K. ORTON
 
                        INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. John L. Riccolo
 
            Attorney at Law
 
            Suite 1140, The Center
 
            425 Second Street SE
 
            Cedar Rapids, Iowa  52401
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            116 East 6th Street
 
            P.O. Box 339
 
            Davenport, Iowa  52805-0339
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           9999
 
                           Filed November 25, 1991
 
                           BYRON K. ORTON
 
                           MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            JAMES H. SOPPE,  	      :
 
                      		      :
 
                 Claimant, 	      :
 
                      		      :
 
            vs. 		      :
 
		                      :         File No. 796271
 
            ENERGY MANUFACTURING      :
 
		COMPANY, 	      :
 
		                      :           A P P E A L
 
                 Employer, 	      :
 
                      		      :         D E C I S I O N
 
  	          and 		      :
 
                      		      :
 
            HOME INSURANCE COMPANY,   :
 
                        	      :
 
                 Insurance Carrier,   :
 
                 Defendants.          :
 
            ___________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision filed February 15, 
 
            1990, with short additional analysis.
 
            
 
 
            
 
 
 
 
 
            
 
 
 
                     
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES H. SOPPE,
 
         
 
              Claimant,                               File No. 796271
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         ENERGY MANUFACTURING COMPANY,                D E C I S I O N
 
         
 
              Employer,
 
                                                         F I L E D
 
         and
 
                                                        FEB 15 1990
 
         HOME INSURANCE COMPANY,
 
                                                    INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by James H. 
 
         Soppe against his former employer, Energy Manufacturing Company, 
 
         and its insurance carrier, Home Insurance Company.  The case was 
 
         heard and fully submitted at Des Moines, Iowa on June 7, 1989.  
 
         The record in this proceeding contains claimant's exhibits 1 
 
         through 38 and defendants' exhibits A through F.  Official notice 
 
         was taken of the pleadings and filings in the agency file.  The 
 
         witnesses who testified at hearing are Naomi Soppe, James H. 
 
         Soppe, Thomas W. Magner, John Giegerich and Bil Cooper.
 
         
 
                                      ISSUES
 
         
 
              The issues identified for determination are whether claimant 
 
         sustained an injury which arose out of and in the course of his 
 
         employment on or about April 8, 1985, determination of claimant's 
 
         entitlement to compensation for healing period or temporary total 
 
         disability, determination of claimant's claim for compensation 
 
         for permanent partial or permanent total disability (claimant 
 
         asserts and relies upon the odd-lot doctrine); and, determination 
 
         of claimant's entitlement to expenses of medical treatment under 
 
         Iowa Code section 85.27.  Claimant also seeks an award for 
 
         additional compensation under the provisions of the fourth 
 
         unnumbered paragraph of Iowa Code section 86.13.  It was 
 
         stipulated that in the event of an award, the rate of 
 
         compensation is $252.03 per week and that at the time of hearing, 
 
         claimant had been paid 117 weeks at the rate of $252.00 and also 
 
         that all of claimant's medical expenses had been paid through the 
 
         end of his treatment with Dr. Turner.  The parties stipulated 
 
         that with regard to the section 85.27 issue, it was only 
 
         necessary for the undersigned to make a determination of 
 
         liability for the treatment provided by James R. LaMorgese, M.D.  
 
                                                
 
                                                         
 
         It was further stipulated that claimant had not returned to work 
 
         since June 3, 1985.  It was stipulated that claimant was entitled 
 
         to and had been paid weekly compensation running from June 3, 
 
         1985 to August 6, 1986.
 
         
 
                            SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  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.
 
         
 
              James H. Soppe is a 48-year-old married man who has been 
 
         married to his wife, Naomi, for 19 years.  At the time of injury 
 
         they had one minor child who was still living at home with them. 
 
         James H. Soppe is a 1958 high school graduate.  He stated that he 
 
         was an average student and has not obtained any further formal 
 
         education.  After high school he spent four years in the Air 
 
         Force as a crash rescue firefighter.
 
         
 
              In 1962 after leaving the Air Force, claimant returned to 
 
         the Worthington, Iowa area.  He worked in a wood factory at 
 
         Dyersville for approximately 18 months where he loaded and 
 
         unloaded rail cars.  He worked for an implement dealer where he 
 
         performed warehouse work and drove trucks.  He moved to 
 
         California on two different occasions.
 
         
 
              Claimant commenced employment with Energy Manufacturing 
 
         Company in 1976 or 1977.  He stated that it provided the best pay 
 
         and benefits available in Monticello, Iowa.  Over the years he 
 
         performed a number of different jobs.  Claimant stated that all 
 
         the jobs required lifting, bending, stooping and twisting.
 
         
 
              In the spring of 1985, claimant was bumped into the position 
 
         of a material handler where he unloaded trucks and moved 
 
         materials.  He bid out of that job into the job of a punch press 
 
         operator.  Claimant stated that as a punch press operator, the 
 
         position he held at the time of injury, he worked with cylinder 
 
         walls.  He stated that the work involved reaching to the right, 
 
         picking up a cylinder wall, placing it into the press, pushing a 
 
         pedal with the right foot while standing on the left foot, and 
 
         then putting the cylinder off to the left side.  Defendant's 
 
         exhibit F, a video cassette depiction of the job is generally 
 
         consistent with claimant's description, although it appears that 
 
         the materials being handled were obtained from the right and were 
 
         placed back to the right after the punch press operation had been 
 
         performed.  The video cassette appeared to depict a relatively 
 
         light-weight material which was being handled and bending at the 
 
         waist into a box approximately three feet high to obtain the 
 
         materials to be manufactured in the press.
 
         
 
              Claimant stated that while working with cylinder walls he 
 
                                                
 
                                                         
 
         stooped and something snapped or popped in his back.  He stated 
 
         that after experiencing a sort of black-out, he regained his 
 
         composure.  He stated that the incident occurred in the morning, 
 
         but that he worked through the day despite the fact that it 
 
         bothered him.  Claimant stated that he reported the incident to 
 
         his foreman, Jerry Prull, before dinner time.
 
         
 
              Claimant testified that on the evening of the incident, he 
 
         took a hot shower at home and had his wife put something on his 
 
         low back.  He stated that he worked the next day and the remainder 
 
         of the week because he did not want to miss any work.  Claimant 
 
         stated that he had a good attendance record and did not want to 
 
         miss any work so he waited until Saturday to seek medical 
 
         treatment.  On Saturday he sought treatment from Dr. Good.  
 
         Claimant testified that Dr. Good sent him back to work and that he 
 
         continued to work until the Friday prior to June 3, 1985.  
 
         Claimant stated that he continued to operate the punch press and 
 
         that the activities kept aggravating his condition.  Claimant 
 
         indicated that his work entailed continuous bending, stooping and 
 
         lifting of weights which varied on a day-to-day basis but could be 
 
         as high as 75-100 pounds (defendants' exhibit A, deposition 
 
         exhibit 6).  The employer's assessment of the punch press 
 
         operator's job was that it involved frequent bending and stooping, 
 
         occasional crouching, occasional lifting of weights of as much as 
 
         50 pounds, and frequent lifting and carrying of weights of no more 
 
         than 10 pounds (defendants' exhibit A, deposition exhibit 7).
 
         
 
              Claimant had seen Peter J. Kennedy, D.C., on March 27, 1985 
 
         for what was described by Dr. Kennedy as minor aches and 
 
         discomfort affecting the low back, shoulders and arms.  Dr. 
 
         Kennedy then again saw claimant during the period of time running 
 
         from May 1, 1985 through May 25, 1985 for severe low back pain 
 
         and numbness in the left leg.  Dr. Kennedy reported that the 
 
         symptoms began after an incident which occurred on April 13, 1985 
 
         and that the treatments given during May of 1985 had not produced 
 
         any favorable results (claimant's exhibit 2; defendants' exhibit 
 
         D, page 1).
 
         
 
              Claimant sought treatment at the Monticello Medical Center 
 
         on April 13, 1985.  The notes of that office visit indicate that 
 
         claimant hurt his back at work two weeks ago, that claimant had 
 
         pain in his lower back, that he was concerned that a change at 
 
         work had made his back worse and that he had received 
 
         chiropractic treatments without attaining any improvement.  A 
 
         note of April 20, 1985 indicates some improvement.  On June 1, 
 
         1985, the notes indicate that an appointment was made for 
 
         claimant to be seen by James A. Pearson, M.D., a Dubuque 
 
         orthopaedic surgeon (claimant's exhibit 1, page 1).  Claimant was 
 
         evaluated by Dr. Pearson on June 4, 1985.  Claimant was placed on 
 
         a conservative program of bed rest and exercise (claimant's 
 
         exhibit 3).  A CT scan was performed on June 4, 1985 which was 
 
         interpreted to show that at the L5-S1 level the annulus was 
 
         bulging to the right and compressing the cord.  At the L4-5 
 
         level, a centrally protruding disc was noted. At the L3-4 level, 
 
         a moderate sized, broad based bulging annulus was identified 
 
                                                
 
                                                         
 
         (claimant's exhibit 5).  On June 25, 1985, Dr. Pearson gave 
 
         claimant a release to return to work on July 1, 1985 despite the 
 
         fact that claimant was still symptomatic (claimant's exhibit 3).  
 
         On June 28, 1985, claimant expressed dissatisfaction with Dr. 
 
         Pearson.  He then entered into treatment with James W. Turner, 
 
         M.D., a Cedar Rapids orthopaedic surgeon (claimant's exhibit 1).
 
         
 
              Dr. Turner first examined claimant on July 1, 1985.  Dr. 
 
         Turner felt that claimant had multi-level disc disease and a 
 
         probable small disc herniation at L5-S1 on the right, but that 
 
         the radiographic studies did not completely correlate with the 
 
         symptoms which claimant described in his legs.  Dr. Turner then 
 
         placed claimant into a course of conservative therapy (claimant's 
 
         exhibit 6).  Commencing with the report of July 2, 1985 and as 
 
         also shown in notes of July 29, 1985 and August 26, 1985, Dr. 
 
         Turner had indicated that claimant could return to restricted 
 
         work, but that he would not release claimant without activity 
 
         restrictions (claimant's exhibits 6, 7, 8 and 9).  On September 
 
         27, 1985, Dr. Turner was advised by Gregory B. Goodwin that no 
 
         light-duty work was available for claimant at Energy 
 
         Manufacturing Company (claimant's exhibit 13).  On January 2, 
 
         1986, Dr. Turner again reported that claimant had a small 
 
         herniated disc, that he would not give claimant an unlimited 
 
         release to return to work, and that claimant has a five percent 
 
         permanent partial impairment (claimant's exhibit 16).  Claimant 
 
 
 
                            
 
                                                         
 
         bid for two jobs with the employer which he stated that he felt 
 
         it was possible he could perform.  Claimant's bids were denied on 
 
         January 24 and January 31, 1986 (claimant's exhibit 17).
 
         
 
              Dr. Turner's notes indicate that on February 3, 1986 claimant 
 
         had voiced complaints of increasing right leg pain.  A repeat CT 
 
         scan showed nerve root impingement (claimant's exhibit 7).  A 
 
         myelogram conducted February 12, 1986 showed the nerve root to be 
 
         obliterated by an extradural defect on the right at L5-S1 as well 
 
         as mild disc bulging at the L3-4 level (claimant's exhibit 19).  
 
         On February 14, 1986, Dr. Turner performed a surgical excision of 
 
         claimant's herniated L5-S1 disc (claimant's exhibit 18, page 2).  
 
         On July 8, 1986, Dr. Turner reported that claimant would likely 
 
         carry a ten percent permanent partial impairment rating 
 
         (claimant's exhibit 20).  On September 3, 1986, Dr. Turner 
 
         reported that repetitive lifting was a cause of claimant's disc 
 
         herniation, that the shift of his symptoms between his left and 
 
         right legs was not an indicator of the cause of the injury, that 
 
         claimant had a ten percent permanent impairment and that claimant 
 
         could not resume unlimited bending and lifting (claimant's 
 
         exhibits 21 and 22).  Dr. Turner elaborated upon his opinions when 
 
         he was deposed (claimant's exhibit 34, pages 18-26, 32-35, and 
 
         38-40).  Dr. Turner felt that the herniated disc treated by Dr. 
 
         LaMorgese was a progression of the bulging which had been seen in 
 
         1985 on the early CT scans.  Dr. Turner attributed both disc level 
 
         problems to repetitive bending and lifting at work.  Dr. Turner 
 
         also stated that claimant's restrictions included lifting no more 
 
         than 10 or 20 pounds and then only at bench height.  He stated 
 
         that claimant was possibly limited in his ability to stand or sit 
 
         for an entire work day (claimant's exhibit 34, page 32).
 
         
 
              After recuperating from surgery and going through a course 
 
         of physical therapy, claimant started looking for work.  He 
 
         stated that he applied for jobs in person, including jobs such as 
 
         light janitor work, grocery store or lumber yard clerk, with a 
 
         cable TV company, a farm supply store, and many others.  He 
 
         stated that he was not offered any work and that at some places 
 
         he was told they could not hire him due to his back condition.  
 
         Claimant received services from Douglas Nelson, a qualified 
 
         vocational consultant, but claimant stated that at no time did 
 
         the vocational rehabilitation person actually assist in finding 
 
         jobs leads.
 
         
 
              On October 2, 1986, the insurance carrier sent a letter to 
 
         the employer which set forth the amount of reserves which had 
 
         been set in this case and of the possibility of a permanent total 
 
         disability award (claimant's exhibit 23).  On December 8, 1986, 
 
         Dr. Turner issued restrictions of standing for no more than two 
 
         hours if claimant could change positions, walk or sit 
 
         occasionally.  Dr. Turner authorized claimant to lift as much as 
 
         30 pounds if it is done at bench or table level (claimant's 
 
         exhibit 24).  The employer did not offer any particular jobs to 
 
         claimant.
 
         
 
              Claimant remained off work until 1988 at which time he 
 
                                                
 
                                                         
 
         experienced a worsening of his symptoms and began treatment with 
 
         neurosurgeon James R. LaMorgese, M.D.  An MRI scan which was 
 
         conducted on August 9, 1988 showed herniation at the L3-4 level 
 
         of claimant's spine (claimant's exhibit 27 and defendants' 
 
         exhibit D, page 6).  On November 23, 1988, a surgical excision of 
 
         the herniated L3-4 disc was performed by Dr. LaMorgese.  Dr. 
 
         LaMorgese reported that claimant had a large disc herniation 
 
         (claimant's exhibit 30).  Dr. LaMorgese steadfastly expressed the 
 
         opinion that the L3-4 disc herniation was related to repetitive 
 
         trauma from claimant's employment activities (claimant's exhibit 
 
         35, pages 16-19, 33 and 38).  Dr. LaMorgese stated that 
 
         claimant's physical activity restrictions are unchanged from 
 
         those which had been previously issued by Dr. Turner, but that 
 
         claimant is not employable due to the condition of his low back 
 
         because he is unable to put in an eight-hour work day (claimant's 
 
         exhibits 33 and 35, pages 19-21 and 63-64).  Dr. LaMorgese stated 
 
         that the original back injury was a factor which predisposed 
 
         claimant to have the L3-4 problem.  He rated claimant as 
 
         currently having a 20 percent permanent impairment (claimant's 
 
         exhibit 35, page 63).  On January 15, 1987, Dr. Turner had 
 
         expressed the opinion that claimant was totally disabled 
 
         (claimant's exhibit 25).
 
         
 
              Claimant stated that he still is afflicted with low back 
 
         pain and that his left leg hurts from the kneecap on down if he 
 
         pushes it.  He stated that his right calf muscle tingles and that 
 
         the top of the right ankle has locked up.  Claimant stated that 
 
         prior to his surgeries, his symptoms shifted from one leg to the 
 
         other at times, but that the tingling in his right calf has been 
 
         present ever since the surgery performed by Dr. Turner.  He 
 
         stated that the continuous left leg pain started in August, 
 
         1988.
 
         
 
              Prior to the injury claimant was earning $10.00 per hour.  He 
 
         stated that his current inability to work is frustrating.  
 
         Claimant stated that Douglas Nelson never told him that Energy was 
 
         willing to take him back to a modified position.  He stated that 
 
         when he applied for jobs in January of 1986, he did so on his 
 
         own.
 
         
 
              Naomi Soppe, claimant's spouse, confirmed that when claimant 
 
         came home from work on Monday, April 8, 1985, he complained of 
 
         injuring his back, took a hot shower and that she rubbed liniment 
 
         on his low back.  She confirmed that he continued to work for the 
 
         remainder of that week, but was getting worse and sought medical 
 
         treatment.
 
         
 
              Naomi stated that during the fall of 1985 claimant's 
 
         condition continued to worsen to the extent that he walked with a 
 
         cane, but that after the February 1986 surgery, he could walk 
 
         without using a cane.  Naomi confirmed that claimant attempted to 
 
         perform the exercises which Dr. Turner had recommended, but that 
 
         physical therapy seemed to worsen claimant's condition rather 
 
         than improve it.
 
         
 
                                                
 
                                                         
 
              Naomi testified that claimant now sleeps with a pillow 
 
         between his legs, that they have placed a sheet of plywood 
 
         between the mattress and box springs on their bed, and that they 
 
         have acquired chairs with wide arms for claimant to use to 
 
         support himself.
 
         
 
              Naomi testified that a normal day for claimant involves 
 
         getting up, going for a walk, sitting around, going to bed, 
 
         getting up and going for another walk, more sitting around and 
 
         again going to bed.  She stated that on weekdays he might wash 
 
         dishes, do some laundry or hang clothes on the clothesline, but 
 
         that in general, he seems to feel useless.  Naomi stated that at 
 
         the present time claimant can walk without a cane, but still 
 
         complains of numbness and a sharp biting path with exertion.  She 
 
         stated that traveling to the hearing in this case is the longest 
 
         car trip they have taken since claimant underwent surgery and 
 
         that they stopped approximately eight times in the course of the 
 
         trip.
 
         
 
              John Giegerich, the former controller who also performed 
 
         administrative and personnel work in April of 1985 for Energy, 
 
         stated that in October, 1986, a meeting was held with claimant 
 
         wherein claimant was informed he could bid on several job 
 
         openings which were occurring with the company.  Giegerich stated 
 
         that claimant indicated he did not feel capable of performing any 
 
         of the jobs in the plant.  Giegerich stated that the company 
 
         would have made modifications to the equipment if such had been 
 
         requested.  Giegerich stated that someone with more skill or 
 
         seniority could outbid claimant for any particular job.  
 
         Giegerich confirmed that in 1985 and 1986, it was company policy 
 
         to not provide light-duty employment and that the company would 
 
         not consider bringing claimant back to any job other than punch 
 
         press operator.  Giegerich stated that when meeting with 
 
         claimant, no particular jobs were offered to claimant which were 
 
         within claimant's medical restrictions.
 
         
 
              Giegerich stated that he never doubted that claimant was 
 
         injured on the job and that claimant was carried on company 
 
         records as being absent due to a plant injury.
 
         
 
              Daniel Droege became employed at Energy Manufacturing 
 
         Company on November 2, 1987.  When deposed he was the 
 
         manufacturing manager, a position which essentially placed him in 
 
         charge of the company.  Droege stated that the employer does not 
 
         dispute that claimant was injured on the job (claimant's exhibit 
 
         36, pages 4-6).  He explained that a union contract controls job 
 
         bidding and placements and that claimant would not be hired into 
 
         a position over some other person who was otherwise equal but did 
 
         not have medical limitations (claimant's exhibit 36, pages 10-12 
 
         and 15-23).  Droege stated that the company would not rehire 
 
         claimant if he had to sit down every one or two hours (claimant's 
 
         exhibit 36, pages 19 and 20).  Upon close evaluation Droege 
 
         conceded that there were really no jobs in the plant which were 
 
         within claimant's medical restrictions.
 
         
 
                                                
 
                                                         
 
              Jerry Prull, claimant's foreman at Energy Manufacturing, 
 
         stated that in April, 1985 claimant reported that his back was 
 
         bothering him and that he needed to go to the doctor.  Claimant 
 
         did not report any specific incident of injury (claimant's 
 
         exhibit 37, pages 4 and 5).  Prull was unable to identify any 
 
         jobs that were within claimant's medical restrictions.
 
         
 
              Claimant received vocational rehabilitation assistance from 
 
         Douglas Nelson, but it was unsuccessful.  When deposed, Nelson 
 
         stated that he had no opinion regarding claimant's ability to 
 
         obtain employment in any well-known branch of the labor market.  
 
         He was unaware of any jobs claimant would be physically capable of 
 
         handling in the Monticello, Iowa area (defendant's exhibit A, 
 
         pages 41 and 42).
 
         
 
              Bil Cooper, a vocational consultant, became involved in 
 
         claimant's case in early May of 1989.  Cooper stated that the 
 
         employer told him they did not want to reemploy claimant.  Cooper 
 
         wanted to conduct a functional capacity evaluation, but had been 
 
         unable to accomplish that prior to the hearing.  Cooper had 
 
         explained that his planned first option had been to seek a return 
 
         to work with Energy Manufacturing and that the second option was 
 
         to seek job placement for claimant at other locations (claimant's 
 
         exhibit 32).
 
         
 
              Thomas W. Magner, a state vocational rehabilitation 
 
         counselor who also performs private consulting work, stated that 
 
         in his opinion claimant is not employable on a regular basis due 
 
         to claimant's pain, restrictions, education and need to change 
 
         positions frequently.  He found claimant to have no real 
 
         transferrable skills from other employment (claimant's exhibit 
 
         31).
 
                            
 
                                                         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on April 8, 1985 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "arising out of" refer to the cause or source of 
 
         the injury.  McClure v. Union County, 188 N.W.2d 283, 287 (Iowa 
 
         1971); Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 402, 68 
 
         N.W.2d 63 (1955).  The "arising out of" requirement is satisfied 
 
         by showing a causal relationship between the employment and the 
 
         injury.  Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe v. DeSoto Consol. Sch. Dist., 
 
         246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 8, 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 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 (2967).
 
         
 
              Aggravation of a preexisting condition is one form of 
 
         compensable injury.  While a claimant is not entitled to 
 
         compensation for the results of a preexisting injury or disease, 
 
         the mere existence at the time of a subsequent injury is not a 
 
                                                
 
                                                         
 
         defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 
 
         N.W.2d 756, 760-61 (1956).  If the claimant had a preexisting 
 
         condition or disability that is aggravated, accelerated, worsened 
 
         or lighted up so that it results in disability, claimant is 
 
         entitled to recover.  Nicks v. Davenport Produce Co., 254 Iowa 
 
         130, 115 N.W.2d 812, 815 (1962).
 
         
 
              Claimant testified concerning a noticeable worsening of his 
 
         back condition occurring on April 8, 1985.  There was no 
 
         particular incident of substantial trauma on that day.  It was 
 
         described by claimant as an incident where something popped or 
 
         snapped while he stooped.  Claimant continued to work for 
 
         approximately two months following that incident before actually 
 
         being determined to be medically disabled.  The last day of work 
 
         could as easily be used as the date of injury as April 8, 1985 in 
 
         view of the assessment of this case which has been made by Drs. 
 
         Turner and LaMorgese.  This case, like many which involve 
 
         cumulative trauma injury, also presents incidents of activities 
 
         which increased symptoms without producing actual, immediate, 
 
         medically confirmed disability.
 
         
 
              The appearance and demeanor of James H. and Naomi Soppe was 
 
         considered by the undersigned as they testified.  The employer 
 
         does not seem to actually dispute claimant's testimony regarding 
 
         the events of his injury.  Both Drs. Turner and LaMorgese accept 
 
         claimant's medical history as a plausible cause for the condition 
 
         which they treated.  There is some indication in the record that 
 
         claimant's symptoms may have been coming on in late March, 1985, 
 
         but even if that is true it would not be inconsistent with an 
 
         injury which resulted primarily from cumulative trauma as 
 
         determined by Drs. Turner and LaMorgese.  The injury date 
 
         contained in the pleadings is not controlling where the injury 
 
         results from cumulative trauma.  McCoy v. Donaldson Co., file 
 
         numbers 752670 and 805200 (App. Decn. April 28, 1989); DeHeer v. 
 
         Clarklift of Des Moines, file number 804325 (App. Decn. May 12, 
 
         1989).  It is therefore determined that James H. Soppe was 
 
         injured on April 8, 1985 as he alleged.  It is also determined 
 
         that cumulative trauma from the activities he performed in his 
 
         employment is a substantial factor in producing the disability 
 
         which has afflicted claimant since June 3, 1985.
 
         
 
              James H. Soppe has not resumed employment since June 3, 
 
         1985. The record of this case fails to identify a single job in 
 
         the employment market in the geographical vicinity of Monticello, 
 
         Iowa which claimant is both capable of performing and obtaining. 
 
         Claimant was provided with assistance from qualified vocational 
 
         consultants.  He has applied for jobs on his own, including jobs 
 
         with this employer, but was unable to obtain any job offers. 
 
         Claimant has physical impairment ratings and physical 
 
         restrictions which are quite limiting from Drs. Turner and 
 
         LaMorgese.  Claimant has asserted the odd-lot doctrine and seeks 
 
         permanent, total disability compensation.  He is 48 years of age.  
 
         His education is limited to the high school level and he has no 
 
         known work skills or qualifications from his past employments 
 
         which are anything other than essentially manual labor.
 
                                                
 
                                                         
 
         
 
              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.2d 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 
 
         basis 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 contends that he is permanently and totally 
 
         disabled.  He relies upon the odd-lot doctrine.  Assessment of 
 
         industrial disability involves consideration of all the various 
 
         factors.  Total disability under compensation law is not utter 
 
         and abject helplessness.  The test for permanent total disability 
 
         in a workers' compensation case has long been established and may 
 
         be summarized as follows:  When the combination of the factors 
 
         considered in determining industrial disability precludes the 
 
         worker from obtaining regular employment which provides him with 
 
         the means to support himself, his disability is a total 
 
         disability.  Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 
 
         (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W. 2d 181, 192 
 
         (Iowa 1980); Diederich v. Tri-City Ry., 219 Iowa 587, 594, 258 
 
         N.W. 899, 902 (1935).  Guyton adopted the odd-lot doctrine in 
 
         Iowa which provides that a worker who becomes unable to obtain 
 
         employment in any well-known branch of the labor market can 
 
         receive permanent total disability compensation, if the only 
 
         services the worker can perform are so limited in quality, 
 
         dependability or quantity that a reasonably stable market for 
 
         them does not exist.  The case went on to provide that whenever a 
 
                                                
 
                                                         
 
         worker makes a prima facie showing of total disability, the 
 
         burden of proving the availability of suitable employment to 
 
         counter the claim of permanent total disability shifts to the 
 
         employer.  The case states that one method of making that prima 
 
         facie showing of total disability is for the employee to make a 
 
         bona fide effort to secure employment without success.
 
         
 
              In this case, James H. Soppe has sought employment, without 
 
         success, from both the defendant employer and other sources.  Both 
 
         of his primary treating physicians have expressed the opinion that 
 
         he is unemployable.  Vocational consultant Magner has stated that 
 
         claimant is unemployable and none of the other vocational 
 
         consultants have contradicted the opinions expressed by Magner.  
 
         It is therefore that James H. Soppe is permanently and totally 
 
         disabled as a result of cumulative trauma injury sustained arising 
 
         out of and in the course of employment with Energy Manufacturing 
 
         Company, and in particular as a result of the injury sustained on 
 
         April 8, 1985.  The result is the same whether or not the odd-lot 
 
         doctrine is applied.
 
         
 
              Drs. Turner and LaMorgese have attributed claimant's 
 
         disability and both surgeries to the cumulative trauma of 
 
         claimant's employment.  Their explanations of the relationships 
 
         among the employment, the incident of April 8, 1985 and the onset 
 
         of left leg symptoms in 1988 is accepted as correct.  Their 
 
         explanations demonstrate that the employment was a substantial 
 
         factor in producing the bulging discs at L5-S1 and L3-4, the need 
 
         for both surgeries, and the residual disability which remained 
 
         after the surgical procedures.
 
         
 
              Since it has been determined that claimant is entitled to 
 
         recover permanent total disability under the provisions of Iowa 
 
         Code section 85.34(3), there is no need to make a finding 
 
 
 
                        
 
                                                         
 
         regarding the dates of claimant's healing period, since healing 
 
         period compensation is awarded only when the permanent disability 
 
         is partial, rather than total.
 
         
 
              In view of the foregoing findings, it is determined that 
 
         defendants are liable for payment of claimant's expenses of 
 
         treatment incurred under the direction of Dr. LaMorgese.
 
         
 
              Claimant also seeks a penalty under the fourth unnumbered 
 
         paragraph of Iowa Code section 86.13.  In order to recover, the 
 
         claimant must show the absence of a reasonable basis for denying 
 
         his claim and the defendants' knowledge or reckless disregard for 
 
         the lack of a reasonable basis for denying the claim.  Dolan v. 
 
         Aid Ins. Co., 431 N.W.2d 790 (Iowa 1988); Kimberly-Clark Corp. v. 
 
         Labor & Indus. Review Comm'n., 405 N.W.2d 685 (Wis. 1987); 
 
         Coleman v. American Universal Ins. Co., 273 N.W.2d 220 (Wis. 
 
         1979); Anderson v. Continental Ins. Co., 85 Wis.2d 675, 271 
 
         N.W.2d 368, (1978).  The employer's lack of a dispute with 
 
         claimant's claim is an important consideration, but is not 
 
         absolutely controlling.  A good faith debate can arise from 
 
         either an issue of fact or an issue of law and the employer would 
 
         not necessarily be adept at evaluating both.  An investigation 
 
         conducted by an insurance carrier may well determine facts which 
 
         were not within the knowledge of the employer's personnel.  In 
 
         this case, claimant asserted an injury date of April 8, 1985 and 
 
         his initial claim as made in his petition did not make any 
 
         reference to a theory of cumulative trauma.  The investigation 
 
         showed claimant to have sought chiropractic treatment on March 
 
         27, 1985, approximately ten days prior to the date of the alleged 
 
         injury.  When claimant reported his back problems to his foreman, 
 
         he did not make a clear, concise statement which attributed his 
 
         complaints to the employment or to any particular event.  The 
 
         event of April 8, 1985 was not the type of occurrence which would 
 
         have been readily apparent to a casual observer or coemployees.  
 
         The onset of disability did not occur until approximately two 
 
         months following the date of the alleged trauma.  Since a 
 
         physician's opinion regarding causation is no stronger than the 
 
         accuracy of the medical history upon which it is based, it is 
 
         determined by the undersigned that there was sufficient, albeit 
 
         only marginally so, information available to the insurance 
 
         carrier to warrant denial of liability for claimant's claim.  An 
 
         insurance carrier is not required to consider theories of 
 
         recovery which are not clearly presented to it by the claimant.  
 
         Defendants did, in this case, pay a substantial amount of weekly 
 
         compensation to claimant and all of his medical expenses incurred 
 
         through the end of his treatment with Dr. Turner.  Their failure 
 
         to voluntarily pay more was incorrect, but it was not totally 
 
         unreasonable.
 
         
 
              It was only at the point of entering into treatment with Dr. 
 
         LaMorgese and determining the amount of permanent disability that 
 
         the defendants failed to timely pay the claim.  The initial 
 
         reports authored by Dr. LaMorgese can readily be interpreted to 
 
         refute the existence of a connection between the employment, the 
 
         injury treated by Dr. Turner and the condition treated by Dr. 
 
                                                
 
                                                         
 
         LaMorgese.  Onset of problems at a different level of the spine 
 
         is not normally seen following an injury.  Simply stated, the 
 
         circumstances in this case are not so strong as to hold the 
 
         defendants' failure to accept liability for the second surgery 
 
         and any disability related to the L3-4 spinal level 
 
         unreasonable.
 
         
 
              It is therefore determined that claimant is not entitled to 
 
         recover additional compensation under the provisions of Iowa Code 
 
         section 86.13.
 
         
 
                           FINDINGS OF FACT
 
         
 
              1.  James H. Soppe injured his back through a cumulative 
 
         trauma process while he was employed by Energy Manufacturing 
 
         Company in Monticello, Iowa.  The injury included an event that 
 
         occurred on April 8, 1985 when claimant experienced pain when 
 
         stooping.
 
         
 
              2.  Claimant has not been employed since June 3, 1985.
 
         
 
              3.  The assessment of claimant's condition as made by Drs. 
 
         Turner and LaMorgese is correct.
 
         
 
              4.  Claimant and his spouse are credible witnesses.
 
         
 
              5.  Claimant has made bona fide good faith efforts to obtain 
 
         employment, but has not found any.
 
         
 
              6.  A reasonably stable market does not exist for the 
 
         services which claimant is capable of performing.
 
         
 
              7.  Claimant is incapable of obtaining employment in any 
 
         well-known branch of the labor market.
 
         
 
              8.  The evidence in this case fails to show that any 
 
         employment exists in the Monticello, Iowa area which claimant is 
 
         qualified to perform, physically capable of performing and able 
 
         to obtain.
 
         
 
              9.  James H. Soppe does not have sufficient remaining 
 
         earning capacity to earn sufficient wages to support himself.
 
         
 
              10.  The evidence fails to prove by a preponderance of the 
 
         evidence that defendants' failure to pay claimant's claim was 
 
         unreasonable.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  James H. Soppe is permanently and totally disabled under 
 
         the provisions of Iowa Code section 85.34(3) regardless of 
 
         whether the case is analyzed as one to which the odd-lot doctrine 
 
                                                
 
                                                         
 
         applies or whether the burden of proof is held to remain with the 
 
         employee.
 
         
 
              3.  Claimant's state of permanent total disability was 
 
         proximately caused by cumulative trauma to which he was exposed 
 
         as part of the duties of his employment at Energy Manufacturing 
 
         Company, including the trauma he experienced on April 8, 1985.
 
         
 
              4.  When permanent total disability results from an injury, 
 
         there is no need to determine a healing period under Iowa Code 
 
         section 85.34(1).
 
         
 
              5.  The cumulative trauma injury, including that of April 8, 
 
         1985, was a proximate cause of the need for the medical treatment 
 
         which was provided under the direction of Dr. LaMorgese.
 
         
 
              6.  Claimant has failed to prove by a preponderance of the 
 
         evidence that the defendants' failure to pay his claim was 
 
         unreasonable.  He is therefore not entitled to any recovery under 
 
         the fourth unnumbered paragraph of Iowa Code section 86.13.
 
         
 
                                     ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant weekly 
 
         compensation for permanent total disability at the rate of two 
 
         hundred fifty-two and 03/100 dollars ($252.03) per week payable 
 
         commencing June 3, 1985 and continuing for so much of claimant's 
 
         life as he remains totally disabled.
 
         
 
              IT IS FURTHER ORDERED that defendants are granted credit for 
 
         all weekly compensation previously paid and shall pay the unpaid 
 
         past due amounts in a lump sum together with interest pursuant to 
 
         the provisions of Iowa Code section 85.30 computed from the date 
 
         each weekly payment came due until the date of actual payment.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the expenses of 
 
         medical treatment incurred by claimant under the direction of Dr. 
 
         LaMorgese.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action 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 15th day of February, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                                
 
                                                         
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. John L. Riccolo
 
         Attorney at Law
 
         Suite 1140, The Center
 
         425 Second Street SE
 
         Cedar Rapids, Iowa  52401
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 East 6th Street
 
         P.O. Box 339
 
         Davenport, Iowa  52805
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.30, 1402.40, 1804
 
                                            2209, 4000.2, 4100
 
                                            Filed February 15, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES H. SOPPE,
 
         
 
              Claimant,
 
         
 
         vs.                                           File No. 796271
 
         
 
         ENERGY MANUFACTURING COMPANY,              A R B I T R A T I O N
 
         
 
              Employer,                                D E C I S I O N
 
         
 
         and
 
         
 
         HOME INSURANCE COMPANY,
 
         
 
              Insurance  Carrier,
 
              Defendants.
 
         
 
         
 
         1402.30, 1402.40, 1804, 2209, 4100
 
         
 
              Claimant found to have carried the burden of proving that he 
 
         sustained a cumulative trauma injury which arose out of and in 
 
         the course of employment.  He was awarded permanent total 
 
         disability compensation.
 
         
 
         4000.2
 
         
 
              Claimant's claim for a penalty was denied despite the fact 
 
         that there was no medical opinion evidence in the record which 
 
         attributed his injury or condition to anything other than his 
 
         employment.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD G. OVERTON,           :
 
                                          :
 
                 Claimant,                :      File No.  796288
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            NORTH STAR STEEL,             :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                                   INTRODUCTION
 
            
 
                 This is a proceeding in arbitration brought by Richard 
 
            G. Overton, claimant, against North Star Steel Company, 
 
            employer and self-insured defendant (transcript page 4) for 
 
            benefits as the result of an injury which occurred on May 
 
            29, 1985.  A hearing was held in Davenport, Iowa, on August 
 
            18, 1989, and the case was fully submitted at the close of 
 
            the hearing.  Claimant was represented by David L. 
 
            Scieszinski.  Defendant was represented by James E. Shipman.  
 
            The record consists of the testimony of Richard G. Overton, 
 
            claimant; Julie L. Overton, claimant's wife; claimant's 
 
            exhibits 1 through 22 and 24 through 43 and employer's 
 
            exhibits 1 through 7.  The deputy ordered a transcript of 
 
            the hearing.  Both claimant and defendant filed hearing 
 
            briefs.  Claimant filed an excellent posthearing brief.  
 
            Defendant did not file a posthearing brief.  
 
            
 
                               preliminary matters
 
            
 
                 Claimant initially filed an application for medical 
 
            benefits on April 23, 1987, and concurrently filed an 
 
            application for designation of treating physicians on April 
 
            23, 1987.  Claimant then filed an amendment to the 
 
            application for review-reopening on January 11, 1988.  At 
 
            the hearing, it was agreed that there had been no prior 
 
            award and no prior settlement in this case and therefore, 
 
            this matter was properly a proceeding in arbitration (tr. 
 
            pp. 3 & 4). Iowa Code section 86.14.
 
            
 
                 It was further determined that General Adjustment 
 
            Bureau is not an insurance carrier or a person who might be 
 
            liable for benefits and that North Star Steel was 
 
            self-insured, whereupon, claimant withdrew General 
 
            Adjustment Bureau as a party defendant in this case (tr. pp. 
 
            4 & 5).  
 
            
 
                 Prior to hearing on August 18, 1989, claimant had 
 
            requested a protective order that he not be required to 
 
            report to the Theda Clark Industrial Injury Clinic.  This 
 
            agency ruled on July 5, 1989, that this was an issue only 
 
            determinable upon an evidentiary hearing and the motion for 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            protective order was consolidated with the contested case 
 
            proceeding.  At the time of hearing, claimant had already 
 
            consented to and received this evaluation and therefore, a 
 
            ruling on the protective order at the time of hearing was 
 
            moot.  It is determined, however, that the request for the 
 
            independent medical examination at the Theda Clark 
 
            Industrial Injury Clinic was reasonable in view of the 
 
            deeply divided conflict between local physicians in this 
 
            case.  
 
            
 
                 The ruling prior to hearing on the motion for 
 
            protective order amended the hearing assignment order to 
 
            include the issue of the appropriateness of an independent 
 
            examination for claimant under Iowa Code section 85.39.  At 
 
            the hearing, the claimant requested an independent 
 
            evaluation from Mark Hines, M.D., a neurologist at Ottumwa, 
 
            Iowa (tr. pp. 6 & 7).  Since claimant did not obtain an 
 
            independent medical evaluation prior to hearing from Dr. 
 
            Hines or any other physician, then this issue is moot 
 
            because rule 343 IAC 4.31 provides that, "no evidence shall 
 
            be taken after the hearing."  (tr. pp. 14 & 15).  Claimant 
 
            could have had the examination performed and then had the 
 
            matter of reimbursement determined by the hearing.  Since 
 
            claimant failed to do so, then the matter is moot.
 
            
 
                 Claimant's exhibit list shows that proposed exhibit 23, 
 
            the transcript of testimony of Eugene E. Collins, M.D., is 
 
            crossed off.  This exhibit was not submitted at the hearing 
 
            or subsequent to the hearing and therefore, was not 
 
            considered in the determination of the issues in this case 
 
            (tr. p. 32).
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters:
 
            
 
                 That claimant sustained an injury on May 29, 1985, 
 
            which arose out of and in the course of employment with 
 
            employer; that the injury was the cause of temporary 
 
            disability; that claimant was entitled to and was paid 17 
 
            weeks and 6 days of temporary disability benefits prior to 
 
            hearing and that additional temporary disability benefits 
 
            are not a disputed matter in this case at this time; that 
 
            the type of permanent disability, if any, is industrial 
 
            disability to the body as a whole; that the rate of 
 
            compensation is $340.18 per week in the event of an award; 
 
            that the fees charged by medical providers are fair and 
 
            reasonable.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:    
 
            
 
                 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 he is 
 
            entitled.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Whether claimant is entitled to $589.43 for unpaid 
 
            medical benefits to Vernon P. Varner, M.D., J.D., after 
 
            medical authorization with Dr. Varner was withdrawn. (tr. 
 
            pp. 22-25).
 
            
 
                 Whether claimant is entitled to a hearing aid.
 
            
 
                                 findings of fact
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that the injury of May 29, 1985, was 
 
            the cause of permanent disability.  It is determined that 
 
            claimant has sustained a 10 percent industrial disability to 
 
            the body as a whole and is entitled to 50 weeks of permanent 
 
            partial disability benefits.
 
            
 
                 Claimant was injured when a falling brick struck him on 
 
            the left side of the head, left shoulder and left hip.  
 
            Claimant was wearing a hard hat at the time of the injury.  
 
            The weight of the brick, or piece of concrete, is described 
 
            at various weights between 30 and 100 pounds.  The distance 
 
            it fell is described at various distances between one foot 
 
            and 30 feet.  The evidence also varies as to whether 
 
            claimant was only dazed for a few moments or whether he was 
 
            knocked unconscious for a short period of time.  
 
            
 
                 Claimant was off work from the date of the injury, May 
 
            29, 1985, until September 30, 1985.  He initially returned 
 
            to light duty performing clerical tasks and shortly 
 
            thereafter returned to duty in his capacity as a journeyman 
 
            millwright, but was restricted to light duty in a separate 
 
            building under the supervision of another millwright 
 
            pursuant to the orders of James B. Worrell, M.D., a board 
 
            certified neurologist, who defendant had authorized as one 
 
            of claimant's treating physicians.  Due to the number, 
 
            seriousness, persistence and severity of claimant's com
 
            plaints and due to the high level of anticonvulsive 
 
            medications, antidepressive medications and antianxiety 
 
            medications, Dr. Worrell determined that it was in 
 
            claimant's best interest to be precluded from activities in 
 
            the plant at large.  Dr. Worrell did not believe it would be 
 
            safe for claimant to work in high places where there was a 
 
            danger of falling and that it would not be safe for claimant 
 
            to work around moving machinery where claimant might be 
 
            injured again.  In addition, claimant contended that loud 
 
            noises and flashing lights in the plant at large aggravated 
 
            his headaches and other symptoms.
 
            
 
                 Claimant has complained of severe headaches, dizziness, 
 
            nausea, tinnitus, bilateral nose bleeds, blurry vision, pain 
 
            at the base of his skull, neck pain, left shoulder pain, 
 
            left hip pain, fatigue, anxiety, loss of sense of smell, 
 
            smelling foul odors, loss of memory, loss of concentration, 
 
            sleep disturbance, loss of appetite, weight loss, loss of 
 
            sex drive, photophobia and brightening of colors and 
 
            macropsia (seeing objects larger than they actually are).  
 
            Claimant admitted that he had a problem with irritableness 
 
            and marital problems prior to this injury, but that the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            injury aggravated these problems and caused them to be sub
 
            stantially more pronounced after the injury.  Julie L. 
 
            Overton, claimant's wife, corroborated these contentions, 
 
            both with several doctors and in her testimony at the 
 
            hearing (tr. pp. 121-126).  
 
            
 
                 Dr. Varner, a board certified psychiatrist; Frank S. 
 
            Gersh, Ph.D., a board certified clinical psychologist and 
 
            Nils R. Varney, Ph.D., a board certified neuropsychologist; 
 
            corroborated claimant's testimony concerning the number and 
 
            severity of his symptoms.  Both Dr. Gersh and Dr. Varney 
 
            conducted extensive psychological tests independent of each 
 
            other.  Both doctors performed their respective tests not 
 
            only once, but twice.
 
            
 
                 Dr. Varner first saw claimant on November 14, 1985.  
 
            (claimant's exhibit 26, pages 10, 14 and 15).  On March 6, 
 
            1986, Dr. Varner wrote, "My diagnosis would be organic 
 
            affective syndrome, organic personality syndrome, and 
 
            psychomotor (partial complex-temporal lobe seizure) 
 
            disorder." (cl. ex. 12).  Dr. Varner indicated that the 
 
            injury at North Star Steel was the cause of claimant's 
 
            significant neuropsychological implications.  On December 
 
            17, 1986, Dr. Varner described his diagnoses as (1) temporal 
 
            lobe seizure disorder; (2) organic affective syndrome; and 
 
            (3) organic personality syndrome (cl. ex. 13).  Dr. Varner 
 
            made a combined diagnosis and statement of causal connection 
 
            on July 20, 1987, by stating, "Very briefly, his diagnoses 
 
            are 1) organic personality syndrome, 2) organic affective 
 
            syndrome, 3) organic brain syndrome, mixed, 4) chronic 
 
            headaches all secondary to 5) a status post head injury at 
 
            work from a falling object."  (cl. ex. 15).  
 
            
 
                 When Dr. Varner testified in the court case of Richard 
 
            D. Overton and Julie L. Overton, plaintiffs; against Kevin 
 
            Brisker and David M. Lewis, defendants; on April 24, 1989, 
 
            Dr. Varner said he preferred to describe the diagnosis as a 
 
            limbic system abnormality with pseudo or false sensory 
 
            feelings or phenomenon.  More particular he stated:
 
            
 
                 So I believe epilepsy, organic brain damage with 
 
                 partial complex seizures, organic damage, 
 
                 psycho-motor seizures, partial seizures, simple 
 
                 seizures, not grand mal seizures.  And there are 
 
                 lots of names for this condition, but my primary 
 
                 diagnosis was post-head injury, limbic system 
 
                 abnormality with pseudo-sensory phenomenon without 
 
                 loss of consciousness.
 
            
 
            (claimant's exhibit 26, pages 20 & 21)
 
            
 
                 Dr. Varner stated that he prescribed Tegretol, 
 
            Dilantin, Imipramine, Xanax, Tranxene, Clonopin and Parnate.  
 
            The doctor testified that claimant was taking 16 pills a day 
 
            (cl. ex. 26, pp. 21-25).  
 
            
 
                 Dr. Varner stated that within a reasonable degree of 
 
            medical certainty, "The injury was suffered when the large 
 
            heavy block of material fell from the ceiling and hit him on 
 
            the head." (cl. ex. 26, p. 28).  Dr. Varner thought that 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            claimant would be precluded from journeyman millwright work 
 
            because the noise in the factory would aggravate his 
 
            hyperacusis (excessive hearing of noises) and he did not 
 
            think it was safe for claimant to work on ladders, 
 
            scaffolding or catwalks because of his dizziness or sudden 
 
            onset of headaches.  He said lifting and straining could 
 
            make his headaches worse.  The doctor thought it would be 
 
            prudent if claimant worked under someone else's observation.  
 
            He felt that stress and noise would increase claimant's 
 
            headaches and irritability (cl. ex. 26, pp. 26-32).  Dr. 
 
            Varner believed that if claimant would happen to lose this 
 
            job, his future employment would be contingent on 
 
            rehabilitation training (cl. ex. 26, p. 35).  
 
            
 
                 Dr. Varner was not able to state that claimant was 
 
            permanently impaired, but felt that four years after the 
 
            injury claimant had reached a plateau of recovery (cl. ex. 
 
            26, pp. 36 & 37).  Dr. Varner did not believe that the fact 
 
            that all of claimant's prior head CT scans, encephalograms 
 
            (EEG's) and magnetic resonance imaging (MRI) tests were all 
 
            negative was necessarily contrary to his diagnoses and 
 
            treatment (tr. pp. 37-40).  The fact that claimant received 
 
            a normal test result on a 24-hour encephalogram did not 
 
            alter Dr. Varner's diagnosis, treatment or opinions (cl. ex. 
 
            26, pp. 54-56).  Dr. Varner acknowledged that the allergy to 
 
            Tegretol is unfortunately quite frequent and could lead to 
 
            loss of bone marrow function (cl. ex. 26, p. 58).  The 
 
            doctor acknowledged that claimant could try to perform his 
 
            job as a full plant journeyman millwright as opposed to a 
 
            supervised machine shop millwright, but he cautioned that 
 
            stresses are known to actually activate limbic system 
 
            abnormalities and admonished that claimant would have to be 
 
            able to deal with the additional sensory stimulation, noise, 
 
            flashing lights and physical exertion and other stimuli 
 
            which could trigger off either a major motor or a limbic 
 
            system phenomenon (cl. ex. 26, pp. 58-62).  
 
            
 
                 In a letter dated September 10, 1987, Dr. Varner wrote, 
 
            "He is unable to do hard, vigorous labor, and in that sense, 
 
            he is disabled from many of the jobs, even within his 
 
            present work setting, that he would be eligible for." (cl. 
 
            ex. 16).  Dr. Varner felt that the injury interfered with 
 
            claimant's present ability as a wage earner, his future 
 
            productivity, his ability to move laterally with employer to 
 
            perhaps a higher paying job, and interfered with his ability 
 
            to bid into various positions within the union.  Dr. Varner 
 
            concluded, "It seems like a total disability, partial 
 
            permanent, of somewhere around 25% would be appropriate." 
 
            (cl. ex. 16).
 
            
 
                 Dr. Gersh, who officed with Dr. Varner and concurrently 
 
            treated claimant with him, concurred in Dr. Varner's 
 
            conclusions (cl. exs. 1, 6, 7, 17, 18, 19 & 24).  At the 
 
            trial of the Overton's against Brisker and Lewis on April 
 
            25, 1989, Dr. Gersh testified that his evaluation was as 
 
            follows:
 
            
 
                 A.  Basically, I found that he had a brain damage 
 
                 syndrome due to post head injury, that there was 
 
                 evidence of more damage to the right side of his 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 brain than on the left, that areas of the brain 
 
                 most effected were the frontal lobe, which is up 
 
                 front, and the temporal lobes, which deal with 
 
                 memory.
 
            
 
                 I also found that he had a syndrome called organic 
 
                 affective disorder which is depression, more than 
 
                 simply a mood of depression, a disorder of 
 
                 depression which can come about because of brain 
 
                 damage, and it was my opinion that this effectived 
 
                 [sic] virtually all aspects of his life.
 
            
 
                 ...and finally I found that he had a number of 
 
                 symptoms that suggested to me that he might have a 
 
                 seizure disorder.
 
                 
 
            (claimant's exhibit 24, page 18)
 
            
 
                 With respect to causal connection, Dr. Gersh testified, 
 
            "My opinion is that this accident caused the brain damage 
 
            and these other symptoms I discussed." (cl. ex. 24, p. 20).  
 
            Dr. Gersh attempted to treat claimant's headaches with 
 
            biofeedback therapy, but the treatment was not successful 
 
            (cl. ex. 24, pp. 22 & 23).  Dr. Gersh also performed a 
 
            series of marriage counseling conferences with claimant and 
 
            his wife (cl. ex. 24, p. 24).  This clinical psychologist 
 
            testified:
 
            
 
                 My opinion is that the condition is permanent 
 
                 because sufficient time has elapsed for the normal 
 
                 course of physical recovery to take place.  That 
 
                 usually takes place in roughly the first year, 90 
 
                 percent, say, in the first year after a head 
 
                 injury such as this.  And when I saw him in 1987 
 
                 that was close to three years after the injury.
 
            
 
             (claimant's exhibit 24, page 27).  
 
            
 
                 He further testified, "My opinion is that he's 
 
                 going to be able to do some minimum wage jobs that 
 
                 are very routine, repetitive, and where he doesn't 
 
                 have to take any initiative and where there is not 
 
                 a lot of pressure to work fast....I can't see him 
 
                 working around loud noise, bright lights or heat 
 
                 because all of those make his headaches much 
 
                 worse." (cl. ex. 24, pp. 28 & 29).  But Dr. Gersh 
 
                 did not rule out some future recovery (cl. ex. 24, 
 
                 p. 31).  Dr. Gersh testified in his evidentiary 
 
                 deposition on June 22, 1988, that claimant was 
 
                 suffering from an injury to the brain itself, it 
 
                 could be treated with medication, but that there 
 
                 is no known way of curing brain damage (cl. ex. 7, 
 
                 p. 30).  
 
            
 
                 Dr. Varney generally concurred with Dr. Varner and Dr. 
 
            Gersh.  On April 17, 1986, he concluded 1) depression, 
 
            probably affective disorder; 2) partial complex seizures; 3) 
 
            psychosocial changes consistent with orbital frontal damage; 
 
            and 4) erratic intellectual status (cl. exs. 3, 4 & 5).  At 
 
            the court trial on April 25, 1989, Dr. Varney testified that 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            he performed psychological tests for J.C.N. Brown, M.D., a 
 
            psychiatrist (cl. ex. 25, pp. 7 & 8).  His history, tests 
 
            and examination disclosed a closed head injury which was 
 
            caused by the head trauma on May 29, 1985 (cl. ex. 25, pp. 
 
            8-23).  Dr. Varney thought that probably the depression 
 
            symptoms might be improved, "But as far as his frontal lobe 
 
            problems are, there is no cure on the horizen [sic] and I 
 
            see no improvement in those symptoms period." (cl. ex. 25, 
 
            p. 34).  
 
            
 
                 Other evidence that might establish that claimant 
 
            suffered a severe head injury which might cause organic 
 
            brain disease and epileptic seizures is as follows:
 
            
 
                 First, shortly after the injury, and early in 
 
            claimant's recovery, he testified that he experienced a 
 
            blackout or fainting spell, fell to the floor and chipped a 
 
            tooth.
 
            
 
                 Second, in April of 1988, claimant reported to Dr. 
 
            Varner that he bit the right side of his cheek and the right 
 
            side of his tongue while taking a nap (cl. ex. 27).  Neither 
 
            of these incidents, however, were independently verified.  
 
            
 
                 Other evidence of a severe blow to the head is found in 
 
            the report of the Durant Ambulance dated May 29, 1985, which 
 
            reported, "Depression at left side base of skull."  
 
            (defendant's ex. 4, p. 2; cl. ex. 26, p. 70).  Also, an 
 
            earlier report from the emergency treatment indicated that 
 
            claimant, "...had indentation in the posterior lateral 
 
            aspect of his head..." (cl. ex. 26, p. 51).
 
            
 
                 The foregoing summarized evidence favors claimant's 
 
            proposition that he has an organic brain injury and 
 
            epileptic seizures.  This decision will not attempt to 
 
            decide as a medical matter whether in fact claimant does or 
 
            does not have organic brain damage and epileptic seizures 
 
            when several highly competent medical practitioners could 
 
            not agree on this point.  This decision does determine as a 
 
            legal matter, however, that the weight of the evidence does 
 
            not support organic brain damage and epileptic seizures.  On 
 
            the contrary, the weight of the evidence in this case 
 
            sustains defendant's proposition that claimant has sustained 
 
            postconcussion syndrome and posttraumatic syndrome.
 
            
 
                 Shortly after the injury, claimant was examined at St. 
 
            Luke's Hospital on May 29, 1985, by Eugene Collins, M.D., a 
 
            neurosurgeon.  He said claimant complained of no focal 
 
            neurologic complaints such as numbness, weakness, etc.  
 
            X-rays of the skull, cervical spine, pelvis and left hip 
 
            were unremarkable for fracture.  Claimant was awake, alert 
 
            and oriented.  There was no evidence of aphasia (ability to 
 
            speak coherently).  Claimant's head appeared relatively 
 
            atraumatic and normocephalic.  There were no battle signs 
 
            (post auricular ecchymosis in cases of fracture of the base 
 
            of the skull).  There was no leakage from ears or nose.  His 
 
            neck was supple without point tenderness.  Claimant was diag
 
            nosed as blunt head trauma.  Grossly nonfocal satisfactory 
 
            neurological exam at present.  He was hospitalized for 
 
            observation between May 29, 1985 and June 1, 1985 (cl, ex. 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            2, p. 1; def. ex. 4, p. 4).  X-rays of the cervical spine 
 
            showed no evidence of fracture; only minimal degenerative 
 
            narrowing of the innerspace between C3 and C4.  Four views 
 
            of the skull revealed no evidence of fracture and sella was 
 
            normal.  X-rays of the pelvis and hip were normal (cl. ex. 
 
            2, p. 4; def. ex. 4, p. 5).  Another x-ray of the cervical 
 
            spine on May 30, 1985, showed no evidence of instability of 
 
            the cervical spine (cl. ex. 2, p. 5; def. ex. 4, pp. 6 & 7).  
 
            A CT scan of the head on May 31, 1985, was entirely normal 
 
            (cl. ex. 2, p. 6; def. ex. 4, p. 8).  The discharge summary 
 
            on June 1, 1985, gave a discharge diagnosis of blunt head 
 
            trauma, cerebral concussion.  It did report mild, light 
 
            headedness after walking (cl. ex. 2, p. 2; def. ex. 4, p. 
 
            9).  
 
            
 
                 Dr. Collins referred claimant to Robert W. Milas, M.D., 
 
            another neurosurgeon, for consultation.  Dr. Milas saw 
 
            claimant on July 9, 1985, and diagnosed probable 
 
            postconcussion syndrome.  Dr. Milas ordered a CT scan of the 
 
            head on July 12, 1985, which was with and without 
 
            intravenous contrast and it showed a normal head CT with no 
 
            interval change from the earlier one performed at St. Luke's 
 
            Hospital on May 31, 1985 (cl. ex. 2, p. 9).  An elec
 
            troencephalographic study was performed on July 12, 1985, 
 
            and was normal during wakefulness and drowsiness (cl. ex. 2, 
 
            p. 8; def. ex. 4, p. 10).
 
            
 
                 Claimant's care was then transferred to L.G. Rigler, 
 
            M.D., a family practice physician who was employer's 
 
            regularly retained company physician.  Dr. Rigler referred 
 
            claimant to Dr. Worrell.  Dr. Worrell released claimant to 
 
            return to work light duty on September 30, 1985 (cl. exs. 30 
 
            & 31).  Dr. Worrell later released claimant to supervised 
 
            millwright plant duty on May 22, 1986 (cl. ex. 39).
 
            
 
                 After Dr. Worrell's first examination of claimant, he 
 
            stated, "It is my impression that this man still has a 
 
            postconcussion syndrome.  I can find absolutely nothing 
 
            really objective on his neurological exam and he has had two 
 
            CT scans and an EEG, all of which have been normal." (def. 
 
            ex. 4, pp. 30 & 31).  On September 22, 1987, Dr. Worrell 
 
            continued to limit claimant's work to the machine shop under 
 
            the supervision of another millwright (def. ex. 4, pp. 81 & 
 
            91).  Dr. Worrell recommended a 24-hour ambulatory 
 
            electroencephalogram (EEG) as a diagnostic tool to argue 
 
            against partial complex seizures on February 23, 1988.
 
            
 
                 A 21-lead EEG performed on June 14, 1988, resulted in a 
 
            normal 24-hour ambulatory EEG (def. ex. 4, pp. 95 & 96).
 
            
 
                 Dr. Worrell gave a deposition on January 25, 1988, in 
 
            which he testified that after numerous neurologic 
 
            examinations he could never confirm claimant's subjective 
 
            symptoms or complaints with any objective findings on a 
 
            neurological examination (def. ex. 6, p. 7).  His diagnosis 
 
            was still posttraumatic syndrome because of a lack of other 
 
            diagnostic categories to put it in to.  He did not know if 
 
            it would be a permanent condition or not.  He still hoped it 
 
            would be temporary (cl. ex. 6, pp. 9 & 10).  In addition to 
 
            posttraumatic syndrome, underneath it all, there has been a 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            depression (def. ex. 6, p. 13).  He gave his professional 
 
            opinion within a reasonable degree of medical probability 
 
            that claimant does not suffer from temporal lobe seizures or 
 
            complex partial seizures (def. ex. 6, p. 18).  He said his 
 
            opinion is supported by the opinion of Robert W. Fincham, 
 
            M.D., who is a board certified neurologist and the director 
 
            of the Epilepsy Center at the University of Iowa Hospitals 
 
            and Clinics (def. ex. 6, pp. 18 & 19).  Dr. Fincham verified 
 
            that claimant's supervised work in the closed shop was 
 
            necessary in his opinion because if claimant were out in the 
 
            noisy, dirty plant doing heavier work, and if he should get 
 
            light headed and faint, then he could injure himself.  Dr. 
 
            Worrell stated, "Also, he is still on enough drugs from Dr. 
 
            Varner that if there were a faintness or a clumsiness or 
 
            something developing from one of those, that he could 
 
            potentially injury [sic] himself working full-time [sic] as 
 
            a millwright." (def. ex. 6, p. 21).  However, the doctor 
 
            hoped, "...we could gradually get him back into the shop an 
 
            hour or two a day, gradually advance on that in sort of a 
 
            work hardening type of thing over period of two or three 
 
            months and see how it goes." (def. ex. 6, p. 23).  The only 
 
            other restrictions would be whatever the foreman might 
 
            require if claimant were light headed or unsteady.  He did 
 
            not feel that claimant should be forced to exceed his 
 
            capabilities and risk some type of serious injury (def. ex. 
 
            6, p. 24).  Dr. Worrell agreed that he referred claimant to 
 
            Dr. Gersh for a neuropsychological examination, but he 
 
            disagreed with Dr. Gersh's impression of organic brain 
 
            syndrome secondary to closed head injury because 
 
            neuropsychological testing in invalid in patients who are 
 
            depressed (def. ex. 6, pp. 28 & 29).  Dr. Worrell was 
 
            opposed to Tegretol because it was a potentially harmful 
 
            drug (def. ex. 6, p. 34).  The witness adamantly testified 
 
            that claimant absolutely does not have complex partial 
 
            seizures (def. ex. 6, p. 45).  He repeated this a number of 
 
            other times in his tesitmony.
 
            
 
                 Dr. Worrell gave another lengthy deposition for the 
 
            district court case of the Overton's against Brisker and 
 
            Lewis on April 11, 1989.  He repeated that after eight or 
 
            ten neurological examinations he could find no objective 
 
            evidence of a neurologic abnormality.  His opinion, based 
 
            upon a reasonable degree of medical probability, was that 
 
            claimant was suffering from postconcussion or posttraumatic 
 
            syndrome (def. ex. 7, p. 13).  He explained that the 24-hour 
 
            electroencephalogram gave him the opportunity to monitor 
 
            brain waves for 24-hours rather than just 30 to 45 minutes 
 
            in order to substantiate whether claimant was having 
 
            seizures or not (def. ex. 7, p. 19) and the test was 
 
            completely normal (def. ex. 7, pp. 20-22).  He stated that 
 
            in addition to the encephalograms and the head CT scans, an 
 
            MRI was performed and this again was normal (def. ex. 7, p. 
 
            23).  Dr. Worrell believed that claimant's subjective 
 
            complaints have persisted for such a long period of time 
 
            because, "...there's a certain amount of depression in his 
 
            case, anxiety factors, I think hostility towards his company 
 
            and the injury that he received that has prolonged his 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            problems." (def. ex. 7, pp. 24 & 25).  Dr. Worrell opined 
 
            that based upon a reasonable medical probability that 
 
            claimant's depression and anxiety were not permanent in 
 
            nature (def. ex. 7, p. 26).  Moreover, Dr. Worrell added, 
 
            "He has not suffered any permanent organic impairment of his 
 
            brain." (def. ex. 7, p. 27).  He also stated that claimant 
 
            does not suffer from complex partial epilepsy or a seizure 
 
            syndrome (def. ex. 7, p. 27).  When Dr. Worrell was asked to 
 
            state the basis for his opinion, he testified:
 
            
 
                 Richard has never had any of the major symptoms of 
 
                 complex partial seizures. He's never had the 
 
                 automatisms, the alteration of consciousness that 
 
                 one sees, the complex motor activity, the complex 
 
                 abnormalities of thought that occurs during 
 
                 complex partial seizures.  We have never 
 
                 documented an abnormal EEG, including a 24-hour 
 
                 EEG, and he has been evaluated also by Dr. Fincham 
 
                 who has not been able to come up with any of these 
 
                 findings that would enable us to substantiate the 
 
                 fact this man would have complex partial seizures.
 
            
 
            (defendant's exhibit 7, page 27)
 
            
 
                 In addition to objective tests, "He has not had the 
 
            strong clinical findings for complex partial seizures." 
 
            (def. ex. 7, p. 31).  The neurologist further testified, "In 
 
            my opinion, he does not require anticonvulsant medications 
 
            per se." (def. ex. 7, p. 33).  
 
            
 
                 Dr. Worrell believed that claimant was physically 
 
            capable of returning to full duties in the plant as a crew 
 
            millwright, but, "I think maybe mentally or depression wise 
 
            as the things we discussed earlier, he may not be capable of 
 
            performing up to standard there." (def. ex. 7, pp. 34 & 35).  
 
            He thought that claimant could probably return to full duty 
 
            at some time in the future (def. ex. 7, p. 35).  Dr. Worrell 
 
            related that Dr. Varner did not consult him before he put 
 
            claimant on all of those prescription medications (def. ex. 
 
            7, p. 43).
 
            
 
                 Dr. Worrell explained that on the occasion shortly 
 
            after the accident when claimant passed out, was not an 
 
            automatism.  He said it was merely a fainting spell as a 
 
            result of his postconcussion syndrome (def. ex. 7, p. 46).
 
            
 
                 With respect to the incident where claimant bit his 
 
            tongue and the side of his mouth while napping, Dr. Worrell 
 
            stated, "But his wife and daughter were right there, and 
 
            they did not hear or witness any seizure activity." (def. 
 
            ex. 7, p. 47).
 
            
 
                 Claimant was examined at the University of Iowa 
 
            Hospitals and Clinics by Richard W. Fincham, M.D., on two 
 
            occasions.  He saw claimant on September 4, 1986, and 
 
            diagnosed postconcussion syndrome.  He recommended that 
 
            claimant advance his daily activities as much as possible 
 
            (def. ex. 4, p. 121).  Dr. Fincham concluded his report on 
 
            September 28, 1986, as follows:
 
            
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 The patient was a well developed and well 
 
                 nourished man in no apparent distress.  General 
 
                 examination revealed no evidence of abnormalities.  
 
                 The neurologic examination was intact.  An awake 
 
                 EEG showed no abnormalities.  It is our feeling 
 
                 that the patient is suffering from a post 
 
                 concussive syndrome and not from partial complex 
 
                 seizures.
 
            
 
            (defendant's exhibit 4, page 122).  
 
            
 
                 An EEG taken on September 5, 1986, was normal (def. ex. 
 
            4, p. 123).  
 
            
 
                 Dr. Fincham saw claimant on the second occasion on 
 
            December 29, 1986.  He said the patient appeared depressed 
 
            and at times angry.  His physical exam was unremarkable.  He 
 
            concluded his report, dated January 7, 1987, as follows:
 
            
 
                    I continue to favor a diagnosis of a post 
 
                 traumatic syndrome.  I do not believe that the 
 
                 patient has epilepsy.  We have made arrangements 
 
                 to complete magnetic resonance imaging of the head 
 
                 (16 January ) in relation to the patient's recent 
 
                 concerns of head and neck pain and I offered him 
 
                 the opportunity to come into the hospital to 
 
                 discontinue Tegretol therapy and be observed for 
 
                 seizures.  I would also favor efforts to phase out 
 
                 the Equagesic, Tranxene and Xanax.  Psychiatric 
 
                 evaluation can be completed if the patient 
 
                 continues with problems in this realm.
 
            
 
            (defendant's exhibit 4, pages 124 & 125)
 
            
 
                 The magnetic resonance imaging exam of the brain and 
 
            brain stem performed on January 16, 1987, showed a normal 
 
            brain and cervical spine exam (def. ex. 4, pp. 126-129).  
 
            
 
                 Claimant was examined by J.C.N. Brown, M.D., a 
 
            psychiatrist, on two different occasions.  On March 4, 1986, 
 
            Dr. Brown diagnosed:
 
            
 
                 Organic Affective Syndrome in relatively good 
 
                 remission secondeary [sic] to treatment.  The mild 
 
                 apperceptual blunting is likely attributable to 
 
                 the medication.  
 
            
 
                 I believe there is no psychiatric contradiction to 
 
                 this man returning to work.  I would suggest 
 
                 returning at first to light work and progressive 
 
                 increasing the work load.  Also, a psychological 
 
                 evaluation for organic workup.
 
            
 
            (defendant's exhibit 4, pages 110 & 111). 
 
            
 
                  Dr. Brown found no clinical evidence of seizure 
 
            disorder as shown in the psychological test battery 
 
            performed by Dr. Varney, which indicated partial complex 
 
            seizures.  Dr. Brown stated, "I strongly suggest that this 
 
            condition be reevaluated by procuring a second neurological 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            opinion." (def. ex. 4, p. 112).
 
            
 
                 Dr. Brown reported again in June 10, 1988, with a 
 
            diagnosis of depression, moderate in severity, which might 
 
            be caused by psychosocial stressors such as the forthcoming 
 
            litigation and the work situation or depression secondary to 
 
            sedative medication or a continued organic mood disorder 
 
            depressed.  He concluded by saying, "I believe the prognosis 
 
            is good." (def. ex. 4, pp. 113 & 114).
 
            
 
                 Dr. Brown made a report on June 3, 1989, reviewing his 
 
            previous two letters.  He stated that in as much as the 
 
            concussion was a mild one occurring three years before the 
 
            time of the evaluation with no neurological signs of organic 
 
            sequelae in the interim, that the following were the most 
 
            likely causes of his depression:
 
            
 
                 1.  Depression in response to continuous 
 
                 environmental stresses, his work, his marriage, 
 
                 and the ongoing litigation, or
 
            
 
                 2.  Depression, secondary to sedative type 
 
                 medication which the patient had been taking for 2 
 
                 years, or...
 
            
 
            (defendant's exhibit 4, page 115)
 
            
 
                 He believed the depression was a temporary disorder and 
 
            that the prognosis was good.  Referring to the American 
 
            Medical Association, Guides to the Evaluation of Permanent 
 
            Impairment, third edition, Dr. Brown stated:
 
            
 
                 Depression, such as that manifest in Mr. Overton, 
 
                 constitutes an impairment.  The impairment, 
 
                 however, must be regarded as temporary in 
 
                 nature....There is no indication that the 
 
                 condition would cause sudden or subtle 
 
                 incapacitation or that the patient would suffer 
 
                 injury or harm by engaging in activities of daily 
 
                 living, working or any other activity necessary to 
 
                 meet personal, social or occupational 
 
                 demands....Return to full work load as feasible, 
 
                 but should be arranged by a system of 
 
                 gradation....There is no permanent impairment.
 
            
 
            (defendant's exhibit 4, page 116)
 
            
 
                 Dr. Varner disputed Dr. Brown's report on several 
 
            points (cl. ex. 43c, pp. 1 & 2).
 
            
 
                 Finally, claimant was examined at the Industrial Injury 
 
            Clinic also known as the Theda Clark Regional Medical Center 
 
            at Nennah, Wisconsin, intensively and extensively by G.R. 
 
            Anderson, M.D.; T.J. Michlowski, M.D., a neurologist and 
 
            psychiatrist; T.R. Groh, Ph.D., a clinical psychologist; 
 
            D.A. Irwin, Ph.D., a neuropsychologist; and W.J. Reynolds, 
 
            M.S., R.R.C., a vocational evaluator; and a report was 
 
            prepared and signed on July 12, 1989.  The staff 
 
            recommendations and conclusions were as follows:
 
            
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
                 1.  It is the opinion of the staff that this 
 
                 individual has recovered from the industrial 
 
                 injury in question.
 
            
 
                 2.  There is no evidence of any traumatic 
 
                 epilepsy.
 
            
 
                 3.  We would recommend that this patient be 
 
                 gradually tapered off his current medications to 
 
                 include Xanax, Tegretol and Dilantin, and observed 
 
                 by a competent neurologist and psychiatrist with 
 
                 follow up [sic] treatment according to response 
 
                 patterns.  Based on our review and evaluation of 
 
                 this individual, we find that it is highly 
 
                 unlikely that he has sustained any post traumatic 
 
                 epilepsy as a result of his closed head injury.  
 
                 All objective information would indicate that this 
 
                 is a very benign injury and there is no objective 
 
                 evidence of any permanent residuals or disability.  
 
                 Psychodynamically, it may well be that the current 
 
                 diagnosis of "epilepsy" serves as a substantial 
 
                 defense phenomenon relative to the obvious 
 
                 premorbid disorder in terms of personality 
 
                 structure and behavior.  If this is the case, a 
 
                 more direct dealing with the real issues would be 
 
                 far more beneficial for this patient in order that 
 
                 he return to a more normal life adjustment.
 
            
 
                 4.  This patient demonstrated substantial 
 
                 hyperlipidemia and hypercholesterolemia.  We would 
 
                 recommend he see his personal physician in follow 
 
                 up [sic] in this regard.  This is not industrially 
 
                 related.
 
            
 
                 5.  This patient can work within the Work Capacity 
 
                 Classification attached.  He should refrain, 
 
                 however, from jobs that require a keen sense of 
 
                 balance especially such as jobs working at heights 
 
                 until at least 30 days after he has discontinued 
 
                 the current medications, i.e., Xanax, Tegretol and 
 
                 Dilantin.
 
            
 
                 6.  Repeat neuropsychological testing at this time 
 
                 does not show any evidence of traumatic brain 
 
                 disorder or traumatic dysfunction.  Also, we find 
 
                 previous implications taht [sic] the patient's 
 
                 performance on the Bender indicated pathology to 
 
                 be absurd.  On review of his performance on the 
 
                 Bender that was sent, no abnormality was found.
 
            
 
                 The report is signed by Dr. Anderson, Dr. Michlowski, 
 
            Dr. Groh and Mr. Reynolds, showing copies supplied to both 
 
            attorneys and claimant himself (def. ex. 4, pp. 131-144).  
 
            The physical capacity examination shows that claimant is 
 
            capable of performing work within the range between medium 
 
            and heavy work.  He can stand, walk, sit, or drive up to 
 
            eight hours per day.  His hands can perform simple grasping, 
 
            pushing and pulling and fine manipulation.  His feet can 
 
            operate foot-controls.  He can bend, squat, climb and 
 
            perform overhead work and work at shoulder level.  The only 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            restriction is that he is to avoid jobs at heights requiring 
 
            a keen sense of balance until drugs such as Xanax, Tegretol 
 
            and Dilantin have been discontinued for 30 days (def. ex. 4, 
 
            pp. 145 & 146).
 
            
 
                 From the foregoing summary of evidence, it is 
 
            determined that as an evidential matter, the weight of the 
 
            evidence is that claimant has sustained a postconcussion 
 
            syndrome and posttraumatic disorder.  He has not suffered 
 
            organic brain damage or epileptic seizures.  
 
            
 
                 There is only one impairment rating in the amount of 25 
 
            percent from Dr. Varner and the basis for his rating does 
 
            include some industrial disability factors.  At the same 
 
            time, Dr. Brown, defendant's psychiatrist, testified that 
 
            claimant has not sustained any permanent impairment.
 
            
 
                 Nevertheless, it is determined that claimant has 
 
            sustained some permanent disability.  Claimant has only 
 
            performed light duty in a closed shop environment under the 
 
            direct supervision of another millwright since September 30, 
 
            1985.  Dr. Varner said it would be unsafe for claimant to 
 
            work at heights, in noise, or in bright flashing lights.  
 
            Even Dr. Brown and Dr. Worrell agreed that claimant should 
 
            be returned to work on a graduated basis.  The doctors at 
 
            the Industrial Injury Clinic specified that claimant should 
 
            not work at heights while he is taking Xanax, Tegretol and 
 
            Dilantin and until these medications have been discontinued 
 
            for 30 days.  It may be necessary to hospitalize claimant, 
 
            according to Dr. Fincham, when the Tegretol therapy is 
 
            discontinued so that claimant can be observed for seizures.  
 
            Thus, even though claimant is a qualified journeyman 
 
            millwright, he is precluded from performing full millwright 
 
            duties in the plant at large.  He still suffers from 
 
            depression.  If and when the medications can be sufficiently 
 
            withdrawn, in order for claimant to return to full 
 
            millwright work, is a matter of pure speculation and 
 
            conjecture at this time.  Claimant is effectively restricted 
 
            to performing millwright work in a closed atmosphere under 
 
            the supervision of another millwright removed from the 
 
            noise, lights and moving machinery from the plant at large.  
 
            Since the time when he can return to full millwright duties 
 
            is indefinite, this is tantamount to a permanent restriction 
 
            at this time from performing full duties as a journeyman 
 
            millwright.  Even though claimant has been maintained at the 
 
            same rate of pay and has sustained no actual loss of wages, 
 
            he has, nevertheless, sustained some industrial disability 
 
            because of his current and indefinite inability to perform 
 
            full journeyman millwright work.  Michael v. Harrison 
 
            County, Thirty-fourth Biennial Report of the Industrial 
 
            Commissioner 218, 220 (Appeal Decision January 30, 1979).
 
            
 
                 The fact that employer has made the needed 
 
            accommodations so that claimant can continue to work at the 
 
            same rate of pay is highly commendable and substantially 
 
            reduces claimant's industrial disability (loss of earning 
 
            capacity) at this time.  However, employer's toleration for 
 
            claimant's inability to work as a full journeyman millwright 
 
            in the plant at large will not necessarily transfer or 
 
            translate to the competitive labor market as a whole.  
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            Hartwig v. Bishop Implement Co., IV Iowa Industrial 
 
            Commissioner Report 159 (Appeal Decision June 28, 1984).  
 
            Claimant is not likely to find other employers as 
 
            understanding of claimant's postconcussion syndrome 
 
            complaints and depression for an employee who is taking 16 
 
            pills a day which are anticonvulsants, antidepressants, and 
 
            antianxiety medications.  Todd v. Department of General 
 
            Services, Buildings and Grounds, IV Industrial Commissioner 
 
            Report 373 (1983).
 
            
 
                 Claimant was 30 years old at the time of the injury and 
 
            34 years old at the time of the hearing (tr. p. 52).  He 
 
            started to work for employer in June of 1982 (tr. p. 53) as 
 
            a millwright (tr. p. 54).  He has a high school education 
 
            and average intelligence.  Claimant testified that he now 
 
            assists another millwright, Harry Riley, in the machine 
 
            shop.  
 
            
 
                 Claimant's attendance record after his return to work 
 
            on September 30, 1985, is outstanding (def. ex. 1).  
 
            Claimant has received excellent evaluations for his work 
 
            performance from his superiors both before and after the 
 
            injury (def. ex. 3).
 
            
 
                 Claimant stated that he still suffers headaches (tr. p. 
 
            89) and dizziness once in a while (tr. p. 90).  The 
 
            headaches last two hours a day (tr. p. 92).  He still has 
 
            problems with his vision, nausea and sometimes with smells 
 
            (tr. pp. 92 & 93).  Claimant testified that he has worked 
 
            part-time for Harry Riley in his trailer business outside of 
 
            the plant (tr. p. 102).  Claimant acknowledged that in 1985, 
 
            he went deer hunting and shot a deer and cut his finger 
 
            while skinning the deer out (tr. p. 114).
 
            
 
                 Wherefore, based upon (1) the foregoing information; 
 
            (2) all the factors used to determine industrial disability, 
 
            Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa 
 
            Industrial Commissioner Decisions 529 (Appeal Decision March 
 
            26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 
 
            State of Iowa Industrial Commissioner Decisions 654, 658 
 
            (Appeal Decision February 28, 1985); and applying agency 
 
            expertise [Iowa Administrative Procedure Act 17A.14(5)]; it 
 
            is determined that claimant has sustained a 10 percent 
 
            industrial disability to the body as a whole.
 
            
 
                                 medical benefits
 
            
 
                 Defendant is required to provide reasonable care and at 
 
            the same time is given the privilege of choosing the care.  
 
            Iowa Code section 85.27.  Dr. Worrell referred claimant to 
 
            Dr. Gersh for psychological testing.  Dr. Gersh referred 
 
            claimant to Dr. Varner.  Defendant did not select Dr. Varner 
 
            as an authorized treating physician, but, nevertheless, 
 
            acquiesced in his care for claimant up until sometime in mid 
 
            1987, at which time they terminated claimant's authority to 
 
            see Dr. Varner and notified him that they would no longer 
 
            pay his bills.  Claimant testified that he, nevertheless, 
 
            chose to see Dr. Varner anyway because Dr. Varner and Dr. 
 
            Gersh were the only two medical providers that had helped 
 
            him.  
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
                 Claimant is not entitled to recover $589.43 in unpaid 
 
            medical expenses of Dr. Varner for the reason that after mid 
 
            1987 Dr. Varner was no longer an authorized treating 
 
            physician.  Claimant was notified of this fact, but, 
 
            nevertheless, chose to see Dr. Varner as his own personal 
 
            choice of physician.  Iowa Code section 85.27 says the 
 
            employer is obliged to furnish reasonable services and 
 
            supplies to treat an injured employee, but has the right to 
 
            choose the care.  Therefore, the unpaid medical expenses of 
 
            Dr. Varner in the amount of $589.43 cannot be allowed.
 
            
 
                            request for alternate care
 
            
 
                 Iowa Code section 85.27 provides that the industrial 
 
            commissioner may order alternate care upon reasonable proofs 
 
            of the necessity for it.  As previously stated, employer is 
 
            required to give reasonable care and at the same time has 
 
            the privilege of choosing the care.  The care provided by 
 
            Dr. Worrell has been reasonable.  Furthermore, by selecting 
 
            Dr. Fincham and Dr. Brown as evaluating physicians, 
 
            defendant should be consistent and permit these physicians 
 
            to treat claimant if he so chooses.  Dr. Fincham agreed to 
 
            hospitalize claimant as a protection against seizures if he 
 
            decides to give up the Tegretol.  If defendant wishes to 
 
            rely on this evidence to mitigate their liability to 
 
            claimant for industrial disability, then they should be 
 
            willing to permit Dr. Fincham or Dr. Brown to treat claimant 
 
            to either discontinue the Tegretol in the case of Dr. 
 
            Fincham or to gradually work claimant back into full 
 
            millwright work as suggested by Dr. Brown.  No necessity has 
 
            been shown to issue an order for alternate care to Dr. 
 
            Varner or Dr. Gersh as requested by claimant in his request 
 
            for alternate care.  Defendant has provided resonable care.
 
            
 
                                   hearing aid
 
            
 
                 It is determined that claimant is not entitled to a 
 
            hearing aid.  Claimant testified that the plant is noisy 
 
            (tr. p. 56), but contended that he developed a hearing 
 
            problem after the injury of May 29, 1985 (tr. p. 80).  
 
            Consequently, he saw Gordon R. Johnson, D.O., an ear, nose 
 
            and throat specialist in Davenport, Iowa, who recommended a 
 
            hearing aid, but the company refused to pay for it (tr. p. 
 
            81).  On June 17, 1985, Dr. Johnson stated, "My impression 
 
            is the patient does have left sided hearing loss and 
 
            tinnitus due to an apparent post concussion syndrome." (cl. 
 
            ex. 8, p. 1; def. ex. 4, p. 14).  Michael C. Hartman, M.A., 
 
            an audiologist, stated that claimant's moderately severe sen
 
            sorineurial hearing loss followed an audiometric 
 
            configuration similar to a noise induced hearing loss or 
 
            acoustic trauma notch (def. ex. 4, p. 17).  When confronted 
 
            with the causal connection question, Dr. Johnson stated that 
 
            Mr. Overton did suffer from an apparent postconcussion 
 
            syndrome and the only way he could give an accurate 
 
            assessment of his hearing loss was to see an audiological 
 
            hearing evaluation done prior to his accident at work (def. 
 
            ex. 4, pp. 19 & 20).  However, Dr. Johnson was unable to 
 
            state an opinion based upon a reasonable medical probability 
 
            that Mr. Overton's need for a hearing aid was causally 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            related to the work injury of May 29, 1985 (def. ex. 4, p. 
 
            21).  Therefore, it is determined that claimant is not 
 
            entitled to a hearing aid for hearing loss caused by this 
 
            injury.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That the injury of May 29, 1985, when claimant was hit 
 
            on the head with a brick, was the cause of permanent 
 
            disability.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965); Lindahl v. L.O. Boggs Co., 236 Iowa 296 
 
            18 N.W.2d 607 (1945).
 
            
 
                 That claimant has sustained a 10 percent industrial 
 
            disability to the body as a whole and is entitled to 50 
 
            weeks of permanent partial disability benefits.  Iowa Code 
 
            section 85.34(2)(u); Diederich v. Tri-City R. Co., 219 Iowa 
 
            587, 593, 258 N.W. 899 (1935); Olson v. Goodyear Service 
 
            Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is entitled to $589.43 
 
            in unpaid medical expenses for Dr. Varner which were 
 
            incurred after the authority to see Dr. Varner was 
 
            terminated.  Iowa Code section 85.27.
 
            
 
                 That claimant is not entitled to an order for alternate 
 
            care for Dr. Varner and Dr. Gersh because the care provided 
 
            is reasonable and claimant has not proven the necessity for 
 
            an order for alternate care.  Iowa Code section 85.27.
 
            
 
                 Claimant has not sustained the burden of proof by a 
 
            preponderance of the evidence that he is entitled to a 
 
            hearing aid because he failed to prove that his hearing loss 
 
            was caused by the injury of May 29, 1985.  Bodish, 257 Iowa 
 
            516, 133 N.W.2d 867; Lindahl, 236 Iowa 296 18 N.W.2d 607.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendant pay to claimant fifty (50) weeks of 
 
            permanent partial disability benefits at the rate of three 
 
            hundred forty and 18/100 dollars ($340.18) per week in the 
 
            total amount of seventeen thousand nine dollars ($17,009) 
 
            commencing on September 30, 1985.
 
            
 
                 That this amount is to be paid to claimant in a lump 
 
            sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the 
 
            transcript of the hearing, are charged to defendant pursuant 
 
            to rule 343 IAC 4.33.
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            
 
                 That defendant file claim activity reports as requested 
 
            by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. David Scieszinski
 
            Attorney at Law
 
            108 E. 4th St.
 
            PO Box 394
 
            Wilton, Iowa  52778
 
            
 
            Mr. James E. Shipman
 
            Attorney at Law
 
            1200 MNB Bldg.
 
            Cedar Rapids, Iowa  52401
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          1108.20 1108.50 1401 1402.40 
 
                                          2204 2206 2902 1103 2700 2504
 
                                          Filed March 26, 1991
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            RICHARD G. OVERTON,           :
 
                                          :
 
                 Claimant,                :      File No.  796288
 
                                          :
 
            vs.                           :
 
                                          :  A R B I T R A T I O N
 
            NORTH STAR STEEL,             :
 
                                          :      D E C I S I O N
 
                 Employer,                :    
 
                 Self-Insured,            :      
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            1108.20 1108.50 1401 1402.40 2204 2206 2902 
 
            It was determined that the injury was not the cause of 
 
            organic brain syndrome and partial complex epileptic 
 
            seizures as diagnosed by Doctors Varner, Gersh and Varney; 
 
            but rather that the injury was the cause of postconcussion 
 
            syndrome and posttraumatic syndrome as diagnosed by Doctors 
 
            Worrell, Fincham and Brown and the battery of doctors at the 
 
            Industrial Injury Clinic at Neenah, Wisconsin.
 
            
 
            1103
 
            Dr. Varner, claimant's psychiatrist, assessed a 25 percent 
 
            permanent impairment, but his evaluation included industrial 
 
            factors.  Dr. Brown, defendant's psychiatrist, and the 
 
            psychiatrist at the Industrial Injury Clinic said there was 
 
            no permanent impairment.  However, claimant, who was a 
 
            journeyman millwright at the time of the injury was 
 
            restricted to performing light duty millwright work in a 
 
            closed building under the supervision of another millwright 
 
            and was not allowed to perform general duty millwright work 
 
            in the plant at large because of (1) his subjective symptoms 
 
            of headaches, dizziness and sensitivity to bright lights and 
 
            loud noises and (2) because Dr. Varner had him taking 16 
 
            pills a day of anticonvulsants, antidepressants and 
 
            antianxiety medications which made it dangerous to work in 
 
            high places, around moving machinery, and to perform 
 
            generally heavy active work.  Practically all of the doctors 
 
            recommended that claimant be graduated slowly into general 
 
            millwright work again, but it might be necessary to 
 
            hospitalize claimant when he discontinues the pills to prove 
 
            that he won't have seizures or will be where they can be 
 
            treated if he did have seizures.  Claimant had been on light 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            duty restricted millwright work for four years and if and 
 
            when he would or could go back to general duties was 
 
            speculative, and therefore, amounted to a permanent 
 
            restriction because of its indefiniteness.  Claimant awarded 
 
            10 percent industrial disability.  Employer had provided 
 
            light duty work to claimant for four years at his same rate 
 
            of pay as when he was injured by the falling brick.  Thus, 
 
            claimant had no actual loss of income, however, this 
 
            employer's willingness to accommodate claimant with job 
 
            modifications was not transferrable to the competitive job 
 
            market as a whole.
 
            
 
            2700
 
            Claimant was not entitled to an order for alternate care 
 
            transferring his care to Doctors Varner, Gersh and Varney.  
 
            It was determined that claimant had been provided reasonable 
 
            care and claimant did not prove that a transfer of care was 
 
            necessary.
 
            
 
            2504
 
            Claimant was not awarded a hearing aid because the ENT 
 
            doctor could not say whether the hearing loss was trauma 
 
            induced or noise induced because no audiology records were 
 
            available prior to the injury.