BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY L. BLANKENSHIP,
 
         
 
              Claimant,                              File No. 798884
 
         
 
         vs.                                           A P P E A L
 
         
 
         SMITHWAY MOTOR EXPRESS, INC.,               D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       MAY 20 1988
 
         LIBERTY MUTUAL INSURANCE CO.,
 
                                               IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                             STATEMENT OF THE CASE
 
         
 
              Claimant appeals from an arbitration decision denying 
 
         temporary total disability and medical benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration proceeding; claimant's exhibits A through J, N, O and 
 
         P; and defendants' exhibits 1 and 2.  Both parties filed briefs 
 
         on appeal.
 
         
 
                                     ISSUE
 
         
 
              Claimant states the following issue on appeal:
 
         
 
              Whether a causal relationship exists between claimant's 
 
         injury of July 5, 1985 and his medical treatment and his time 
 
         lost from work.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally set forth 
 
         herein.
 
         
 
              Briefly stated, 49 year old claimant was employed as an 
 
         over-the-road truck driver for approximately three to four months 
 
         in 1985.  Claimant testified that on July 5, 1985, he fell off 
 
         the back of a trailer in Oshkosh, Wisconsin, landing first on his 
 
         feet and going into a crouch position, and then falling onto his 
 
         buttocks.  Claimant described a belt buckle he was wearing at the 
 
         time which had a sharp protrusion that pinched his stomach and 
 
         produced pain when he fell, but did not puncture the skin. 
 
         Claimant testified that a painful red spot appeared where the 
 
                                                
 
                                                         
 
         belt buckle injured his stomach, and that the spot grew larger 
 
         over the next few days.
 
         
 
              Claimant's wife testified that claimant called her from 
 
         Wisconsin and told her of the injury and that he was experiencing 
 
         pain and would be returning home early to see a doctor, and that 
 
         when he returned home claimant had a large bulge on his stomach 
 
         next to his navel.
 
         
 
              Claimant obtained emergency treatment, then returned to Fort 
 
         Dodge, Iowa, where he sought medical attention from Kyle R. Ver 
 
         Steeg, M.D., and was admitted to the hospital for emergency 
 
         surgery on July 9, 1985.  Although a strangulated hernia was 
 
         first suspected, during the surgery on July 9, 1985, claimant's 
 
         condition was found to be an abdominal wall abscess.  Claimant 
 
         was off work from July 9, 1985 until September 10, 1985.
 
         
 
              Claimant testified that one month prior to the July 5, 1985 
 
         injury, he had experienced abdominal pain while tightening a 
 
         chain on the truck.  Claimant was previously found to have 
 
         Crohn's disease during a surgical repair of a umbilical hernia in 
 
         1984. Dr. Ver Steeg testified that Crohn's disease involved 
 
         inflammation of the intestine, resulting in blockage and 
 
         bleeding.
 
         
 
              On July 25, 1985, Dr. Ver Steeg stated that claimant's fall 
 
         on July 5, 1985 resulted in "an abscess which was forced through 
 
         the abdominal wall at the time of the fall.  The abscess 
 
         originated from a perforation of the small intestine involved 
 
         with Crohn's disease."  (Claimant's Exhibit H)  On August 9, 
 
         1985, Dr. Ver Steeg opined:
 
         
 
              Regarding your letter dated August 7th, 1985 on Gary 
 
              Blankenship.  The exacerbation of Mr. Blankenship's Crohn's 
 
              disease happened precisely at the time of the fall from the 
 
              truck at work.  His bowel was involved with Crohn's disease 
 
              which certainly is not work related.  However, since the 
 
              timing of the exacerbation is so historically precise, it is 
 
              conceivable the fall could have caused the abnormal bowel in 
 
              its fixed position to perforate and form the abscess, and/or 
 
              cause an abscess already present to perforate thru the 
 
              abdominal wall forming what appeared to be, but actually was 
 
              not, a strangulated hernia.
 
         
 
                   I am unable to give an opinion with 100% certainty 
 
              since I saw the problem retrospectively.  But the 
 
              exacerbation or complication of his Crohn's disease occured 
 
              [sic] at the precise time of the fall at work, according to 
 
              the patient.
 
         (Cl. Ex. J)
 
 
 
              In his deposition, Dr. Ver Steeg testified:
 
         
 
              Q.  And can you tell us, Doctor, what you later found out 
 
              were his problems?
 
                                                
 
                                                         
 
         
 
              A.  I found -- upon making a surgical incision over the mass 
 
              in the right lower abdomen, I found a large collection of 
 
              pus, which I had entered with the knife and then drained. 
 
              This pus had come through the old incision that had been 
 
              performed about a year before.  And it was actually an 
 
              extension of what appeared to be an intra-abdominal -- 
 
              inside the abdomen -- abscess, which was caused by 
 
              perforation of the lower small intestine from this Crohn's 
 
              disease.
 
         
 
                   ....
 
         
 
              Q.  In your opinion, Doctor, is it possible that Mr. 
 
              Blankenship, suffering from Crohn's disease as he was, 
 
              falling from the truck and with his intestine in the 
 
              condition that it is and falling on his belt buckle as he 
 
              related to you could have caused this perforation to the 
 
              intestinal wall?
 
         
 
              A.  It's conceivable that a fall with either a belt buckle 
 
              pushing in to there or a tremendous increase in abdominal 
 
              pressure caused by a muscular contraction of the abdomen in 
 
              reaction to the fall could have increased the pressure 
 
              around that bad area of bowel enough to cause it to 
 
              perforate.
 
         
 
                   ....
 
         
 
              Q.  ....In other words, there wouldn't be an effort by the 
 
              body to heal itself through the formation of this abscess if 
 
              there weren't already a perforation present?
 
         
 
              A.  Correct.
 
         
 
              Q.  Okay.  So we've got to have the perforation there first. 
 
              And is that perforation that you described a part of the 
 
              Crohn's disease that you've earlier described--
 
         
 
              A.  Yes.
 
         
 
              Q.  --the presence of that perforation in Mr. Blankenship's 
 
              intestine?
 
         
 
              A.   The perforation-- Crohn's disease, the definition of 
 
              Crohn's disease does not include perforation, but the 
 
              perforation was present in bowel that was involved by 
 
              Crohn's disease.
 
         
 
              Q.  Okay.  Is there any way of determining how long that 
 
              perforation had been present?
 
         
 
              A.  Not for sure, not for sure.  It would not have been 
 
              present for months.
 
         
 
                                                
 
                                                         
 
              Q.  Okay.
 
         
 
              A.  It's very difficult to pin it down exactly when the 
 
              perforation would definitely have occurred.
 
         
 
              Q.  Okay.  As well as the fact as how far progressed the 
 
              abscess was when you opened him up?  It's probably not -- it 
 
              probably differs from person to person; would it not?
 
         
 
              A.  Yes, probably.
 
         
 
              Q.  Okay.  So I mean by looking at the degree or extent of 
 
              the abscess that you found, it wouldn't be possible to 
 
              backdate and say this is when it started, the abscess 
 
              started reacting to the perforation that was present in the 
 
              intestine?
 
         
 
              A.  Certainly I couldn't tell by looking at it.  I would 
 
              have to take the history into consideration as well.
 
         
 
              Q.  Okay.  Now you were asked the question -- or you 
 
              answered the question as to whether this belt buckle 
 
              incident had anything to do with it, and you used the term 
 
              conceivable, that it could have put enough pressure in the 
 
              abdominal area to in essence force this perforation to take 
 
     
 
                       
 
                                                         
 
              place.
 
         
 
                   Now my question to you is:  Can you state that to a 
 
              reasonable degree of medical certainty?
 
         
 
              A.  The -- a perforation in Crohn's disease does not require 
 
              the a high intra-abdominal pressure or something hitting it 
 
              in order to perforate.  It can perforate without any trauma 
 
              being inflicted.  Historically, his symptoms started right 
 
              at the time he fell from the truck so I can be reasonably 
 
              sure that something -- some event occurred at that time.
 
         
 
              Q.  Okay.
 
         
 
              A.  Whether it was -- whether it was an abscess that had 
 
              already formed inside the abdominal cavity that perforated 
 
              out through the abdominal wall or whether it actually -- the 
 
              fall actually caused the perforation itself, I cannot say 
 
              with any medical certainty.
 
         
 
              Q.  Okay.  So essentially, we could be looking at, if you're 
 
              satisfied that by history something occurred at that time of 
 
              this fall, we still don't know what it is that occurred at 
 
              that time?  It could have been one of several things; 
 
              right?
 
         
 
               A.  Yes, yes.  One of two or three things, I think.
 
         
 
              Q.  It could have been the actual perforation taking place, 
 
              it could have been the -- it could have been the abscess 
 
              going through the old incision?
 
         
 
              A.  Yes.
 
         
 
              Q.  What else could it have been?
 
         
 
              A.  Well, I think those two things are the most likely 
 
              possibilities, but which one of those it was, I can't be 
 
              certain.
 
         
 
                   ....
 
         
 
              Q.  But that -- but that process of going through the 
 
              abdominal wall is a process that had already started-- Had 
 
              it not?  --as far as the presence of the abscess?  The 
 
              abscess was there?  There had to be an abscess there in 
 
              order to go-- If we assume something happened when he fell 
 
              and the abscess was already present, but it was forced 
 
              through the abdominal wall at that injury with this 
 
              incident, then I guess my question is:  Wouldn't he have 
 
              needed surgery anyway?
 
         
 
              A.  If we're assuming that that's the event that occurred.
 
         
 
              Q.  Yes.
 
                                                
 
                                                         
 
         
 
              A.  And there was already an abscess inside the abdominal 
 
              cavity, he would have required surgery anyway.
 
         
 
         (Ex. P, pp. 6-7; 9-10; 14-17; 18)
 
         
 
              Defendants stipulated that the medical treatment claimant 
 
         received was reasonable and necessary.  The parties stipulated 
 
         that there was no permanent impairment, that claimant received an 
 
         injury on July 5, 1985 that arose out of and the course of his 
 
         employment, and that claimant's rate of compensation was $311.35 
 
         per week.
 
         
 
                                APPLICABLE LAW
 
         
 
              Section 85.27, Code of Iowa, states in part:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter or chapter 85A, shall furnish reasonable surgical 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 5, 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. 128 (1967).
 
         
 
              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, 760-761 
 
         (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).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation 555(17)a.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963); 
 
         Yeager v. Firestone Tire & Rubber, Co., 253 Iowa 369, 112 N.W.2d 
 
         299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591.  See also Barz 
 
         v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); Almquist v. 
 
         Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 (1934).
 
         
 
              Expert testimony that a condition could be caused by a given 
 
         injury coupled with additional, non-expert testimony that 
 
         claimant was not afflicted with the same condition prior to the 
 
         injury was sufficient to sustain an award.  Giere v. Aase Haugen 
 
         Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911 (1966).
 
         
 
                                 ANALYSIS
 
         
 
              The sole issue on appeal is whether the medical treatment 
 
         claimant underwent and the time he missed from work are causally 
 
         connected to his fall on July 5, 1985.
 
         
 
              Claimant's fall on July 5, 1985 was not a serious incident. 
 
         The incident on that date did not cause claimant's Crohn's 
 
         disease, or the abscess, as the evidence shows both preexisted 
 
         the incident.  At most, the fall on July 5, 1985 merely brought 
 
         to light the need for surgery to remove the abscess.  Dr. Ver 
 
         Steeg testified that this surgery would have needed to be 
 
         performed even absent the fall.
 
         
 
              Dr. Ver Steeg was equivocal in his statement as to 
 
         causation. He stated that the perforation could occur without any 
 
         trauma.  He listed two possible likely causes for claimant's 
 
         condition.  A probability is required.  A possibility is 
 
         insufficient.  Claimant also experienced pain in his abdomen a 
 
         month before his fall on July 5, 1985.  Claimant has failed to 
 
         carry his burden to causally connect his fall on July 5, 1985 to 
 
         the disability he presently suffers.
 
         
 
              In addition, even if a causal connection were to be assumed, 
 
                                                
 
                                                         
 
         claimant has failed to show that the fall of July 5, 1985 
 
         materially aggravated his condition.  The medical testimony 
 
         indicates that the abscess existed prior to the fall on July 5, 
 
         1985, and that surgery would have been required to correct the 
 
         abscess even absent the fall.  At most, the fall on July 5, 1985 
 
         only slightly aggravated claimant's preexisting condition.  More 
 
         than a slight aggravation is required under the law.
 
         
 
              Thus, claimant is not entitled to medical benefits related 
 
         to treatment of the abscess.  Claimant is not entitled to 
 
         temporary total disability benefits for the time off work 
 
         following the surgery to treat the abscess.  Claimant is entitled 
 
         to $39.00 for emergency treatment in Oshkosh, Wisconsin, and 
 
         $80.00 for the initial visit with Dr. Ver Steeg prior to the 
 
         discovery that claimant's condition was not a work-related 
 
         hernia, but rather a nonwork-related abscess stemming from his 
 
         Crohn's disease.
 
         
 
                             FINDINGS OF FACT
 
         
 
              1.  Claimant was employed by defendant employer as an 
 
         over-the-road truck driver.
 
         
 
              2.  Claimant suffered an injury that arose out of and in the 
 
         course of his employment with defendant employer on July 5, 
 
         1985.
 
         
 
              3.  Claimant underwent surgery on July 9, 1985 and was found 
 
         to have a perforation of the abdominal wall.
 
         
 
              4.  Prior to July 5, 1985, claimant was diagnosed as having 
 
         Crohn's disease.
 
                   
 
                                                
 
                                                         
 
              5.  Claimant's perforation of the abdominal wall was caused 
 
         by an abscess that existed prior to July 5, 1985.
 
         
 
              6.  Claimant's medical bills except $39.00 to Oshkosh 
 
         Emergency Services and an initial charge by Dr. Ver Steeg in the 
 
         amount of $80.00 were for surgery and treatment of the abdominal 
 
         wall perforation and abscess.
 
         
 
              7.  Claimant did not suffer any permanent disability as a 
 
         result of his fall on July 5, 1985.
 
         
 
              8.  Claimant was off work from July 9, 1985 until September 
 
         10, 1985 as a result of his surgery on July 9, 1985.
 
         
 
              9.  Claimant's rate of compensation was $311.35 per week.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Claimant has failed to prove that his medical bills for 
 
         diagnosis, surgery, and treatment of his abdominal wall 
 
         perforation and intestinal abscess and his time off work are 
 
         causally related to his injury of July 5, 1985.
 
         
 
              Defendants are responsible for claimant's medical bills for 
 
         $39.00 to Oshkosh Emergency Services and $80.00 to Dr. Ver Steeg 
 
         for diagnosis of claimant's condition.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants are to pay claimant's medical bills in the 
 
         amount of thirty-nine dollars ($39.00) to Oshkosh Emergency 
 
         Services and eighty dollars ($80.00) to Dr. Ver Steeg for the 
 
         diagnosis of claimant's condition.
 
         
 
              That claimant is to pay the costs of the appeal including 
 
         the transcription of the hearing procedure.
 
         
 
              Signed and filed this 20th day of May, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                               DAVID E. LINQUIST
 
                                            INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Kurt L. Wilke
 
         Attorney at Law
 
                                                
 
                                                         
 
         704 Central Avenue
 
         Fort Dodge, Iowa  50501
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         P.O. Box 1680
 
         Fort Dodge, Iowa  50501
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50
 
                                            Filed May 20, 1988
 
                                            David E. Linquist
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         GARY L. BLANKENSHIP,
 
         
 
              Claimant,
 
                                                      File No. 798884
 
         vs.
 
         
 
         SMITHWAY MOTOR EXPRESS, INC.,                  A P P E A L
 
         
 
              Employer,                               D E C I S I 0 N
 
         
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50
 
         
 
              Claimant failed to show a causal connection between his fall 
 
         from a truck and surgery for an abdominal wall perforation.  The 
 
         medical testimony failed to establish a causal connection, but 
 
         did establish that the abscess which caused the perforation 
 
         preexisted the injury and the surgery in question was inevitable.  
 
         Claimant was awarded the medical costs of emergency treatment and 
 
         diagnostic procedures.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GARY L. BLANKENSHIP,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   FILE NO. 798884
 
         
 
         SMITHWAY-MOTOR EXPRESS, INC.,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                   D E C I S I O N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Gary L. 
 
         Blankenship, against Smithway-Motor Express, Inc., his employer, 
 
         and Liberty Mutual Insurance Co., the employer's insurance 
 
         carrier.  Blankenship alleges that he sustained an injury to his 
 
         abdomen in a fall from his employer's truck that occurred on or 
 
         about July 5, 1985.  He seeks compensation for temporary total 
 
         disability and payment of medical expenses incurred in treating 
 
         his ailment.  The employer does not dispute that claimant had an 
 
         ailment and does not dispute the reasonableness or necessity of 
 
         the expenses incurred in treating him.  The primary issue in this 
 
         case deals with whether or not claimant's ailment is work related 
 
         and constitutes an injury that arose out of and in the course of 
 
         his employment.
 
         
 
              The case was heard at Fort Dodge, Iowa on September 22, 1986 
 
         and was fully submitted upon conclusion of the hearing.  The 
 
         record consists of testimony from Gary L. Blankenship, Karen 
 
         Blankenship and Darrell W. Garrett.  The record also includes 
 
         claimant's exhibits A through J, N, 0 and P and defendants' 
 
         exhibits 1 and 2.  The evidence concerning stress as a possible 
 
         contributing factor in this claim is hereby held to be admissible 
 
         and is considered as part of the evidence in the case.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is only a brief summary of pertinent evidence. 
 
          All evidence received at hearing was considered when deciding 
 
         the case.
 
              Gary L. Blankenship is a 49 year old married man who was 
 
         employed by Smithway-Motor Express, Inc., as an over-the-road 
 
         truck driver for a period of three or four months during 1985.  
 
         Blankenship testified that on July 5, 1985, he fell off the back 
 
         of the trailer, landed on his feet and then fell backwards onto 
 
         his behind.  He stated that he was wearing a cowboy-style belt 
 
         buckle with a claw on the back that pinched his stomach when he 
 

 
         
 
         
 
         
 
         BLANKENSHIP V. SMITHWAY-EXPRESS, INC.
 
         Page   2
 
         
 
         
 
         landed.  He stated that he experienced pain and on the following 
 
         day observed swelling on his stomach.  Blankenship continued to 
 
         perform his employment duties which led him to Osh Kosh, 
 
         Wisconsin.  He testified that he then observed a big red mark on 
 
         his stomach where the buckle had pinched him and that it kept 
 
         growing larger.  Blankenship reported the incident at the 
 
         employer's terminal in Osh Kosh, was examined by a physician in 
 
         Osh Kosh and then returned to Fort Dodge where he sought medical 
 
         care at Trinity Regional Hospital.  Claimant was admitted to the 
 
         hospital where he was treated by Kyle R. Ver Steeg, M.D.  As 
 
         shown in exhibits 1 and P, Dr. Ver Steeg initially diagnosed 
 
         Blankenship's condition as a strangulated hernia but upon 
 
         performing surgery discovered an abdominal wall abscess that was 
 
         actually an extension of an abscess that was located inside the 
 
         abdomen.  It had resulted from a perforation of the lower small 
 
         intestine due to an ailment known as Crohn's disease.  The 
 
         surgical procedure that was performed consisted of removing the 
 
         pus from the abscess and excision of the portion of the intestine 
 
         that was effected by the Crohn's disease (Ex. P, p. 7, Ex. 1, 
 
         pages 2 & 14).  Following the surgery claimant was treated by 
 
         antibiotics and made an apparently normal recovery.  There is no 
 
         evidence in the record that suggests that the claimant has 
 
         suffered any permanent disability from the ailment or the 
 
         procedure.
 
         
 
              Blankenship indicated that approximately a month earlier he 
 
         had experienced discomfort while tightening a chain on the truck.  
 
         He considered his job to be stressful due to being away from home 
 
         for extended periods.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 5, 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 supreme court of Iowa in Almquist v. Shenandoah 
 
         Nurseries, 218 Iowa 724, 731-32, 254 N.W.2d 35, 38 (1934), 
 
         discussed the definition of personal injury in workers' 
 
         compensation cases as follows:
 
         
 
              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. [Citations omitted.] 
 
              Likewise a personal injury includes a disease resulting from 
 
              an injury.... The result of changes in the human body 
 
              incident to the general processes of nature do not amount to 
 
              a personal injury.  This must follow, even though such 
 
              natural change may come about because the life has been 
 
              devoted to labor and hard work.  Such result of those 
 
              natural changes does 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.
 
         
 
                 ....
 

 
         
 
         
 
         
 
         BLANKENSHIP V. SMITHWAY-EXPRESS, INC.
 
         Page   3
 
         
 
         
 
         
 
         
 
              A personal injury, contemplated by the Workmen's 
 
              Compensation Law, obviously means an injury to the body, the 
 
              impairment of health, or a disease, not excluded by the act, 
 
              which comes about, hot 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. [Citations omitted.]  The injury to the human body 
 
              here contemplated 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.
 
         
 
              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, 760-761 
 
         (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).
 
         
 
              The events which claimant related as having occurred, namely 
 
         the fall from the truck on July 5, 1985, having experienced 
 
         discomfort approximately a month earlier are accepted as correct.  
 
         Claimant's affliction with Crohn's disease was noted in 1984 when 
 
         he underwent a surgical repair of a hernia at St. Anthony 
 
         Regional Hospital in Carroll, Iowa (Ex. 2, p. 30).  The last two 
 
         pages of exhibit 2 indicate that claimant had some abnormality in 
 
         his abdomen in 1977.  Dr. Ver Steeg described Crohn's disease as 
 
         an ailment in which the intestine becomes inflamed, swollen and 
 
         susceptible to blockage, bleeding or perforation.  He could not 
 
         identify any specific cause for the ailment but stated that 
 
         stress could be an aggravator of the condition.  He described the 
 
         condition as one which has no ultimate cure and which sometimes 
 
         is chronic as evidenced by relapses and remissions (Ex. P, pp. 8 
 
         & 9).
 
         
 
              Dr. Ver Steeg expressed the opinion that it is possible that 
 
         a fall with either a belt buckle pushing in or an increase in 
 
         abdominal pressure caused by muscular contraction in reaction to 
 
         a fall could have caused an intestine that was afflicted with 
 
         Crohn's disease to perforate (Ex. P, pp. 9 & 10).  Dr. Ver Steeg 
 
         described the abscess that he found as part of the reaction of 
 
         the body to heal itself in response to a perforation and that a 
 
         perforation would have to exist before the abscess would form 
 
         (Ex. P, pp. 14 & 15).  Dr. Ver Steeg went on to state that a 
 
         perforation in a person that has Crohn's disease can occur 
 
         without any trauma.  Dr. Ver Steeg did not express an opinion 
 
         regarding how long the perforation had been presented but he 
 
         stated it would not have been present for an amount of time 
 
         measured in months (Ex. P, p. 15).  Dr. Ver Steeg concluded that 
 
         the event that claimant experienced could have been the actual 
 
         perforation of the intestine or it could have been an existing 
 
         abscess being pushed through the old incision through the 
 
         abdominal wall (Ex. P, p. 17).  He could not specify which event 
 

 
         
 
         
 
         
 
         BLANKENSHIP V. SMITHWAY-EXPRESS, INC.
 
         Page   4
 
         
 
         
 
         or scenario was more likely (Ex. P, pp. 16 & 17).  There is one 
 
         additional possible scenario that is not discussed by Dr. Ver 
 
         Steeg.  It is possible that the abscess was present and that 
 
         through the impact of the fall and pinching with the belt buckle 
 
         as claimant described, he simply became aware of the abscess.  
 
         Furthermore, common knowledge shows that an abscess does not form 
 
         instantaneously.  It is something which develops through the 
 
         passage of time.  It would seem that if there were no abscess at 
 
         the time of the fall, that there would have been nothing to be 
 
         forced through the abdominal wall.  It is, of courser possible 
 
         that a defect in the abdominal wall was preexisting and that when 
 
         the abscess formed it formed on both sides of the wall at the 
 
         same time.  It would seem likely that if the perforation of the 
 
         intestine occurred at the time of the fall from the truck, the 
 
         passage of some amount of time would have been necessary before 
 
         an abscess could have formed.  When all the possibilities are 
 
         considered, the most likely would seem to be that the abscess 
 
         preexisted the fall and that the fall forced it to pass through 
 
         the abdominal wall.  It is this scenario that will be used in 
 
         analyzing this case.  The other possible scenarios cannot be 
 
         excluded but their likelihood is less than the likelihood that 
 
         the fall caused a preexisting abscess to pass through the 
 
         abdominal wall.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 5, 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. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility 
 
         is insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              A cause is proximate if it is a substantial factor in 
 
         bringing about the results; it need not be the only cause.. 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
         1980).  According to Dr. Ver Steeg, claimant's abscess would have 
 
         required surgical treatment even if it had not been forced 
 
         through the abdominal wall (Ex. P., pp. 18-20).  There is no 
 
         indication in the record that the method of treatment, the cost 
 
         of treatment or the amount of time required for recovery from 
 
         treatment would be any different if the abscess had been 
 
         discovered prior to the time it passed through the abdominal wall 
 
         (Ex. P, p. 21).
 
         
 
              It is found that the injury claimant sustained on July 5, 
 
         1985 was a very minor injury.  The injury did, however, allow the 
 
         preexisting abscess to be discovered.  All of the disability and 
 
         medical expense in this case is related to treatment of the 
 
         abscess, rather than of the minor injury.  There are, however, a 
 
         few limited expenses that were initially incurred that are 
 
         treatment of the original injury.  The employer has an obligation 
 
         to provide reasonable medical care under section 85.27.  
 
         Reasonable care includes whatever care is necessary in order to 
 
         diagnose the condition, even though the diagnosis ultimately 
 
         shows the complaints to be non-work related.  Pote v. Mickow 
 
         Corporation, File No. 694639, review-reopening decision June 17, 
 

 
         
 
         
 
         
 
         BLANKENSHIP V. SMITHWAY-EXPRESS, INC.
 
         Page   5
 
         
 
         
 
         1986.  The decision concerning whether medical care is reasonable 
 
         and related to an injury is to be made based upon the facts known 
 
         or apparent at the time the care is being provided.  In this case 
 
         claimant did sustain an injury that arose out of and in the 
 
         course of his employment.  It was initially believed by the 
 
         treating physicians to be a hernia.  Defendants therefore have a 
 
         limited liability for the expenses of treatment, namely $39.00 to 
 
         Osh Kosh Emergency Services as shown in exhibit A, and the 
 
         initial charges from Dr. Ver Steeg on July 9, 1985 in the amount 
 
         of $80.00 as shown in exhibit E.  Those expenses were incurred 
 
         when the treating physicians believed that they were dealing with 
 
         a work induced hernia.  Those expenses were part of the work-up 
 
         necessary to determine whether or not the complaints were work 
 
         related.  Where there was, in fact, an injury that was work 
 
         related, those expenses do constitute reasonable care for that 
 
         injury.  The balance of the expenses which claimant submits are 
 
         found, however, to be treatment of the abscess, the non-work 
 
         related condition, for which the employer is not liable.
 
         
 
              Claimant seeks recovery of the costs in the amount of $15.00 
 
         for a report from Family Health Clinic (Ex. N) and $67.70 for the 
 
         deposition of Dr. Ver Steeg (Ex. 0).  (Division of Industrial 
 
         Services Rule 343-4.33, formerly Industrial Commissioner Rule 
 
         500-4.33)  No claim has been made for an expert witness fee for
 
         Dr. Ver Steeg but a reasonable fee not to exceed $150.00 will 
 
         also be allowed as costs.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On July 5, 1985, Gary L. Blankenship was a resident of 
 
         the State of Iowa, employed as an over-the-road truck driver by 
 
         Smithway-Motor Express, Inc. operating out of its Fort Dodge, 
 
         Iowa terminal.
 
         
 
              2.  Blankenship was injured on July 5, 1985 when he fell 
 
         from the rear of his trailer to the ground.
 
         
 
              3.  The injury consisted of causing a preexisting abdominal 
 
         abscess to penetrate claimant's abdominal wall.
 
         
 
              4.  The preexisting abscess was a condition which would have 
 
         eventually required treatment of precisely the same nature as was 
 
         performed on Blankenship.
 
         
 
              5.  The injury was quite minor and merely allowed the 
 
         existence of the abscess to be discovered.  It did not in any way 
 
         cause the abscess to be more or less severe or more or less 
 
         disabling.
 
         
 
              6.  The injury is found to have affected only the time at 
 
         which the abscess was discovered and treatment for it conducted.
 
         
 
              7.  Though the injury was minor, some medical care for 
 
         claimant's complaints was warranted and the amounts found to be 
 
         reasonable are the charges from Osh Kosh Emergency Services in 
 
         the amount of $39.00 and from Dr. Ver Steeg for his initial care 
 
         in the amount of $80.00.  The balance of the medical expenses 
 
         incurred by claimant are found to be related to the abscess and 
 
         are therefore not reasonable care for the work related injury.
 

 
         
 
         
 
         
 
         BLANKENSHIP V. SMITHWAY-EXPRESS, INC.
 
         Page   6
 
         
 
         
 
         
 
              8.  The injury produced no disability, temporary or 
 
         permanent, and all disability that existed is related to the 
 
         abscess, rather than the work injury.
 
         
 
              9.  A reasonable expert witness fee for Dr. Ver Steeg is 
 
         limited to no more than $150.00.
 
         
 
             10.  Claimant has failed to introduce evidence that 
 
         employment related stress was a substantial factor in bringing 
 
         about the Crohn's disease, the abscess or any of his disability 
 
         or medical expenses which are the subject of this proceeding.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              2.  Gary L. Blankenship sustained an injury on July 5, 1985 
 
         that arose out of and in the course of his employment with 
 
         Smithway-Motor Express, Inc.
 
         
 
              3.  The employer is responsible for the reasonable medical 
 
         expenses related to that injury in the total amount of $119.00.
 
         
 
              4.  Claimant has failed to prove that the injury was a 
 
         proximate cause of any disability, either temporary or permanent, 
 
         or that the injury is a proximate cause of the surgery and other 
 
         medical care which the claimant received on or after July 9, 
 

 
         
 
         
 
         
 
         BLANKENSHIP V. SMITHWAY-EXPRESS, INC.
 
         Page   7
 
         
 
         
 
         1985.
 
         
 
              5.  Where a work related injury occurs and symptoms exist, 
 
         reasonable medical care includes care that is reasonable under 
 
         the circumstances then known or apparent.  It includes reasonable 
 
         diagnostic procedures, even if the care and procedures ultimately 
 
         show the complaints to not be work related.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant's 
 
         medical expenses with Osh Kosh Emergency Services in the amount 
 
         of thirty-nine and no/100 dollars ($39.00) and with Kyle Ver 
 
         Steeg, M.D., P.C., in the amount of eighty and no/100 dollars 
 
         ($80.00).
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 343-4.33, 
 
         formerly Iowa Industrial Commissioner Rule 500-4.33 including an 
 
         expert witness fee for Dr. Ver Steeg in the amount of one hundred 
 
         fifty and no/100 dollars ($150.00), the cost of reporter's time 
 
         and transcript to Jackie Thompson in the amount of sixty-seven 
 
         and 70/100 dollars ($67.70), and the cost of a medical report in 
 
         the amount of fifteen and no/100 dollars ($15.00).
 
         
 
              IT IS ORDERED that in all other respects claimant's claim 
 
         for benefits for temporary disability and section 85.27 benefits 
 
         is denied.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by the agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1, formerly Industrial 
 
         Commissioner Rule 500-3.1.
 
         
 
              Signed and filed this 24th day of December, 1986.
 
         
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Kurt L. Wilke
 
         Attorney at Law
 
         704 Central Avenue
 
         Fort Dodge, Iowa 50501
 
         
 
         Mr. Tito Trevino
 
         Attorney at Law
 
         P. 0. Box 1680
 
         Fort Dodge, Iowa 50501
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                  1108.50; 1402.30
 
                                                  1801; 2206; 2501
 
                                                  Filed December 24, 1986
 
                                                  MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         GARY L. BLANKENSHIP,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                   FILE NO. 798884
 
         SMITHWAY-MOTOR EXPRESS, INC.,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50; 1402.30; 1801; 2206; 2501
 
         
 
              Claimant was injured in a fall from a truck.  The injury was 
 
         an aggravation of a preexisting intra-abdominal abscess that had 
 
         resulted from an underlying condition known as Crohn's disease.  
 
         The injury was found to have caused the abscess to pass through 
 
         the abdominal wall.  The abscess was a condition which would have 
 
         required surgical treatment and there was no showing that the 
 
         injury in any way had any effect upon the abscess other than as 
 
         it related to allowing the abscess to be discovered.  Claimant 
 
         was therefore denied compensation for temporary total disability 
 
         during the period of treatment.  His claim for medical expenses 
 
         related to the surgical treatment of the abscess was denied.  
 
         Claimant was, however, allowed to recover the cost of his initial 
 
         medical treatment.  It was held that the decision on whether 
 
         medical care is reasonable and related to an injury is to be made 
 
         based upon the facts known or apparent at the time the care is 
 
         being provided.  Since claimant had sustained an injury in his 
 
         employment and experienced symptoms for which he sought care, the 
 
         employer was held responsible for the cost of care, including 
 
         diagnostic procedures, up to the point at which it was determined 
 
         that the work injury was minor and that the symptoms were 
 
         primarily due to the underlying abscess condition.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JEANETTE TUBERTY,             :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 798936
 
            HAROLD DICKEY TRANSPORT, INC, :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY &      :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a hearing in arbitration brought by Jeanette 
 
            Tuberty  against Harold Dickey Transport, Inc., employer, 
 
            and United Stated Fidelity and Guaranty, insurance carrier, 
 
            defendants for benefits as the result of an alleged injury 
 
            which occurred on June 25, 1985.  A hearing was held in Des 
 
            Moines, Iowa, on July 25, 1990, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Jacques D. Schira.  Defendants were 
 
            represented by Iris J. Post.  The record consists of the 
 
            testimony of Jeanette Tuberty, claimant; Dan DeWitt, 
 
            claimant's witness; Marie Reif, claimant's witness; Matthew 
 
            Solon, private investigator; Dave Dickey, employer; Candace 
 
            Kaelber, vocational rehabilitation specialist; Stan Schrock, 
 
            defendants' witness; Kent Jayne, vocational rehabilitation 
 
            supervisor; claimant's exhibits 1 through 9 and 11 through 
 
            14; and defendants' exhibits A through R.  Claimant's 
 
            exhibits 7 and 8 were admitted into evidence over the 
 
            objection of defendants because they were timely served.  
 
            Claimant's exhibit 10 was not admitted into evidence because 
 
            it was not timely served pursuant to paragraph seven of the 
 
            hearing assignment order.  At hearing, defendants presented 
 
            a brief description of disputes.  Claimant submitted a 
 
            description of disputes and a supporting hearing brief.  The 
 
            deputy ordered a transcript of the hearing, which lasted 
 
            nine hours.  Both parties submitted excellent posthearing 
 
            briefs.
 
            
 
                                preliminary matter
 
            
 
                 The fact that claimant received $2,500 under an 
 
            agreement pursuant to a partial commutation prior to hearing 
 
            on April 30, 1986, in order to pay several bills, was not a 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            determination of claimant's rights or defendants' 
 
            liabilities in this case.  Therefore, the proper proceeding 
 
            is an arbitration proceeding rather than a review-reopening 
 
            proceeding.  Iowa Code section 86.14.  Therefore, claimant 
 
            was permitted to amend the petition at the time of hearing 
 
            to an arbitration proceeding rather than a review-reopening 
 
            proceeding as originally shown on the original notice and 
 
            petition (transcript pages 5 and 6).
 
            
 
                 Claimant moved to amend the petition, in particular, 
 
            section 11 entitled, "Parts of the Body Affected or 
 
            Disabled," to add the word "knee."  Defendants objected to 
 
            the motion to amend the petition to add the word knee 
 
            because this part of the body did not appear on the original 
 
            notice and petition and because the knee injury was 
 
            predicated upon the cumulative injury doctrine which was not 
 
            discussed at the prehearing conference and not listed as a 
 
            hearing issue in this case on the hearing assignment order 
 
            (tr. pp. 7 & 8).
 
            
 
                 It is not necessary to rule on claimant's motion to 
 
            amend the petition to include a knee.  Strauss v. Bil-Mar 
 
            Foods, file number 833243, (January 18, 1991); Morrison v. 
 
            City of Ames, file numbers 843176. 979253. 979254 (April 23, 
 
            1991); Boatman v. Griffin Wheel Company, file number 372267 
 
            (April 6, 1988).
 
            
 
                 An application for arbitration is not a formal pleading 
 
            subject to technical rules of pleading.  There is no 
 
            requirement for the same conformity of proof to pleading as 
 
            in ordinary actions.  Yeager v. Firestone Tire and Rubber 
 
            Co., 253 Iowa 369, 373 112 N.W.2d 299 (1961).  The same has 
 
            been said of workers' compensation review-reopening actions.  
 
            Coghlan v. Quinn Wire & Iron Works, 164 N.W.2d 848, 850 
 
            (Iowa 1969).  An arbitration petition may state the claim in 
 
            a general manner.  Technical rules are not observed and 
 
            defendants need only be generally informed as to the basic 
 
            material facts upon which the employee relies as a basis for 
 
            compensation.  Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, section 21-5.
 
            
 
                 Technical forms of pleading have been abolished (Iowa 
 
            Rule of Civil Procedure 67).  Each averment of a pleading 
 
            shall be simple, concise and direct (Iowa R.Civ.P. 69B).  
 
            Iowa Law does not require the petition to identify a 
 
            specific legal theory.  A pleader is not required to allege 
 
            a legal theory or spell out elements of a cause of action as 
 
            in common law pleading.  Haughland v. Schmidt, 349 N.W.2d 
 
            121, 123 (Iowa 1984).  A petition is sufficient if it 
 
            apprises defendants of the incident giving rise to a claim 
 
            and the general nature of the action.  State Savings Bank of 
 
            Hornich v. State Bank of Onawa, 368 N.W.2d 161, 163 (Iowa 
 
            1985).  The rules of civil procedure require only that fair 
 
            notice of a claim be given.  Schill v. Careage Corporation, 
 
            353 N.W.2d 416 (Iowa 1984).  The key to pleading in an 
 
            administrative matter is nothing more than or less than the 
 
            opportunity to prepare and defend.  Hoenig v. Mason & 
 
            Hanger, Inc., 162 N.W.2d 188, 192 (Iowa 1968).
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 The industrial commissioner and deputies are required 
 
            to make decisions based on the facts presented even if they 
 
            are different or contrary to the theory pled.  Johnson v. 
 
            George A. Hormel & Company, (Appeal Dec. June 21, 1988); 
 
            McCoy v. Donaldson Company, Inc., file numbers 782670 & 
 
            805200 (Appeal Decision 1989); Shank v. Mercy Hospital 
 
            Medical Center, (App. Dec. August 28, 1989).  Any variance 
 
            between pleading and proof is immaterial unless it misleads 
 
            defendants to his prejudice.  Coughlan, 164 N.W.2d 848; 
 
            Yeager, 253 Iowa 369, 373, 112 N.W.2d 299.
 
            
 
                 There is no evidence in this case that defendants have 
 
            been surprised or misled to their prejudice, nor did 
 
            defendants allege surprise or prejudice.  On the contrary, 
 
            defendants were well aware that claimant alleged a knee 
 
            injury and, as will be seen, claimant's very capably 
 
            defended themselves on this issue.
 
            
 
                 Therefore, even though defendants stipulated that 
 
            claimant received an injury arising out of and in the course 
 
            of employment with employer and at the same time dispute an 
 
            injury to the knee, it then becomes necessary to treat the 
 
            issue of injury arising out of and in the course of 
 
            employment with employer and define what parts of the body, 
 
            if any, were injured in this alleged incident.
 
            
 
                                      issues
 
            
 
                                 findings of fact
 
            
 
                                      injury
 
            
 
                 It is determined that claimant sustained an injury to 
 
            her right shoulder, neck and lumbar spine which arose out of 
 
            and in the course of employment with employer on June 25, 
 
            1985.  
 
            
 
                 It is further determined that claimant did not sustain 
 
            an injury arising out of and in the course of employment 
 
            with employer which respect to her left knee or either one 
 
            of her knees which arose out of and in the course of 
 
            employment with employer.
 
            
 
                 Claimant started to work for employer in April of 1973 
 
            and continued to work for a period of approximately 12 years 
 
            until June of 1985 when she received this injury.  A formal 
 
            application for the job of truck driver was made out by 
 
            claimant on December 15, 1975 (Ex. Q, pp. 8-10).  Claimant 
 
            worked for employer off and on for 12 years, full time the 
 
            last two or three years (ex. C, p. 61).
 
            
 
                 Claimant, an over-the-road truck driver, testified that 
 
            she was struck in the right head, neck and shoulder by a box 
 
            of bacon which weighed approximately 70 to 75 pounds while 
 
            unloading her truck at Omaha, Nebraska, on Tuesday, June 25, 
 
            1985 (tr. pp. 61 & 62).  She continued to work for a few 
 
            more days driving, loading and unloading, but went to see 
 
            her personal physician (with the consent of her employer) on 
 
            Saturday, June 29, 1985 (exhibit O, pp. 2 & 3; ex. Q, p. 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            48).  Claimant's right hand and arm are dominant.  Donal D. 
 
            Hill, D.O., saw claimant for neck ache, right elbow and 
 
            right shoulder pain and took claimant off work on June 29, 
 
            1985 (ex. 2, p. 30).  Dr. Hill ordered an x-ray of the 
 
            cervical spine on July 8, 1985, which showed no abnormality 
 
            of the cervical spine, no evidence of fracture or 
 
            subluxation, no destructive process and no unusual 
 
            degenerative disease was visible (ex. 2, p. 27; ex. 3, p. 
 
            52).  
 
            
 
                 Dr. Hill sent claimant to see James B. Worrell, M.D., a 
 
            neurologist, for consultation on August 1, 1985.  Dr. 
 
            Worrell's impression was that claimant had received a 
 
            cervical strain syndrome with some component of a plexus 
 
            stretch.  He recommended discontinuing physical therapy but 
 
            continued to keep claimant off work (ex. 5, p. 2).  
 
            
 
                 Dr. Worrell performed an electromyographic study which 
 
            was normal and did not demonstrate any evidence for a 
 
            radiculopathy (ex. 5, p. 1).  Dr. Worrell's final report on 
 
            October 7, 1985, felt that her prognosis should be good 
 
            although it was a bit too early to say with any degree of 
 
            certainty.  He concluded by stating, "I have not come up 
 
            with any serious underlying nerve or muscle disease." (ex. 
 
            5, p. 4).  
 
            
 
                 Dr. Hill admitted claimant to the hospital from 
 
            September 30, 1985 to October 4, 1985, for traction and 
 
            physical therapy because of severe, persistent cervical 
 
            thoracic spasm myalgia.  He found tenderness and spasm 
 
            throughout C2 through C7 with the right more pronounced than 
 
            the left; trapezius spasm with pain into the right elbow; 
 
            and some right low back tenderness with right leg numbness.  
 
            She had very poor resolution of her spasms and pain as a 
 
            result of this hospitalization.  Dr. Hill said her return to 
 
            work could not be determined at that time (ex. 2, pp. 
 
            23-25). 
 
            
 
                 Dr. Hill referred claimant to Mitchell Ross, M.D., a 
 
            physician in the department of neurology at the University 
 
            of Iowa Hospitals and Clinics who, November 14, 1985, found 
 
            tenderness to palpation in the areas of C2-C7 on the right 
 
            side (ex. 2, pp. 1 & 2).
 
            
 
                 Dr. Hill then referred claimant to Marc E. Hines, M.D., 
 
            a board certified neurologist, who saw claimant on March 14, 
 
            1986, and admitted her to the hospital from March 18, 1986 
 
            to March 21, 1986.  He reported that in spite of extensive 
 
            treatment claimant still complained of neck pain, limitation 
 
            of movement of the neck, pain radiating down into the right 
 
            shoulder and right arm, episodic numbness of her right leg 
 
            and some low back pain.  He found some trigger points in the 
 
            cervical area, particularly in the medial trapezius and the 
 
            right scapular area.  The right upper extremity neurological 
 
            examination was otherwise essentially normal.  A myelogram 
 
            revealed mild central disc protrusion at L3-4 and L4-5, but 
 
            the cervical and thoracic areas were completely normal (ex. 
 
            3, p. 59; ex. J. Volume 2, p. 7).  His final diagnosis was 
 
            lumbosacral disc herniation with back pain and leg numbness 
 
            and cervical traction injury secondary to and related to the 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            injury of June 1985 (ex. 3, pp. 62-63).  
 
            
 
                 The myelogram report ordered by Dr. Hines read that 
 
            (except for mild central disc protrusion at L3-4 and L4-5 
 
            levels) the myelogram was unremarkable (ex. 3, p. 59).  An 
 
            unenhanced/ enhanced CT scan of the head on July 24, 1986, 
 
            ordered by Dr. Hines, was completely normal (ex. 3, p. 61).
 
            
 
                 On April 15, 1986, Dr. Hines reported that 
 
            unfortunately claimant had not had any improvement.  On May 
 
            1, 1986, he reported that she was doing only moderately well 
 
            with basically the same complaints.  On June 3, 1986, Dr. 
 
            Hines stated, "I feel that she has reached the point of 
 
            maximum healing."  (ex. 3, pp. 1 & 40). 
 
            
 
                 On July 22, 1986, Dr. Hines noted that claimant had a 
 
            very hot and swollen left knee joint, which revealed it has 
 
            had two laparoscopies as well as steroid injections and that 
 
            an orthopedist had informed her that the cartilage was 
 
            injured and that a total knee replacement may be necessary.  
 
            On the previous Sunday, her left leg gave out while she was 
 
            carrying a laundry basket a quarter-full of wet clothes.  
 
            Dr. Hines felt that based on the patient's level of 
 
            subjective complaints, symptoms and signs, she seemed to be 
 
            significantly disabled with back pain and joint pain; 
 
            however, he added that the degree of disability seems at 
 
            times to exceed the extent of the physical findings (ex. 3, 
 
            pp. 47 & 48). 
 
            
 
                 In his deposition (given on September 21, 1988) Dr. 
 
            Hill testified that the right shoulder area spasm and right 
 
            elbow epicondylitis were attributable to the injury which 
 
            she experienced as work.  On April 18, 1987, Dr. Hill could 
 
            only state that the lumbar disc injury could have been 
 
            illicited by her June 1985 trauma (ex. 2, pp. 8 & 9; ex. 11, 
 
            p. 15), but in his deposition he finally concluded that both 
 
            her neck and back pains were caused by this injury.  He 
 
            stated that claimant's diagnosis was ligamentous strain and 
 
            spasm which developed into chronic inflammatory reaction 
 
            which then caused the chronic spasticity of the neck and low 
 
            back (ex. 11, pp. 14 & 15).  Dr. Hill eventually concluded 
 
            that both the neck and back problems were caused by this 
 
            injury as revealed by this dialogue:
 
            
 
                 Q.  Is it your opinion then, to a reasonable 
 
                 degree of medical certainty, that the injuries and 
 
                 diagnosis that you have just stated were the 
 
                 result of the June 25, 1985, injury?
 
            
 
                 A.  Yes, sir.
 
            
 
                 Q.  Is that consistent with the history that you 
 
                 obtained?
 
            
 
                 A. Yes, sir.
 
            
 
            (exhibit 11, page 17)
 
            
 
                 Dr. Hines stated in a letter on July 2, 1987, with 
 
            respect to the neck, right shoulder and low back, "It is my 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            opinion at this time that the patient's injuries and the 
 
            permanent medical impairment which she is experiencing at 
 
            this time are the direct result of the accident and injury 
 
            which she was involved in on June 28 [sic], 1985."  (ex. 3, 
 
            p. 9).  Dr. Hines also stated in another letter on September 
 
            16, 1987, that with respect to her neck and back pains and 
 
            left knee problem:
 
            
 
                 It is my opinion that these problems are secondary 
 
                 to her injury on June 25, 1985 and that this was 
 
                 in fact the cause of her injuries.  Also, I feel 
 
                 that the increasing difficulties with her knee are 
 
                 secondary most of all to the difficulties which 
 
                 she has with her back causing her to walk 
 
                 abnormally which has precipitated an arthralgia 
 
                 and arthritic difficulty in her knee.
 
            
 
            (exhibit 3, page 10)
 
            
 
                 Again with respect to her neck and back, Dr. Hines 
 
            stated on June 8, 1990, "[I]t is my opinion that this is 
 
            related to her initial work-related injury, as stated in my 
 
            previous deposition." (ex. 3, p. 45).  
 
            
 
                 In his deposition given on March 11, 1989, Dr. Hines 
 
            testified that in his opinion the injury to the neck, back 
 
            and knee were related to the accident of June 1985 when the 
 
            75 pound box of meat fell on the right shoulder and neck.  
 
            He said that the knee injury was related to the problems 
 
            with the back because her back injury changed her posture 
 
            and weight bearing (ex. 12, pp. 61, 62 & 66).  
 
            
 
                 On May 2, 1990, Dr. Hill wrote to claimant's attorney:
 
            
 
                 I feel her knee complaints are of bursitis and 
 
                 arthritic nature, but I would be unable to say it 
 
                 was definitely from her accident.  One can 
 
                 hypothesize that her knee degeneration could 
 
                 partially be due to gait changes attributed to 
 
                 pain in her low back.  However, her weight 
 
                 condition, history of farm labor, and family 
 
                 history of severe degenerative osteoarthritis 
 
                 would also be likely the cause of her knee 
 
                 degeneration.
 
            
 
            (exhibit 2, page 14)
 
            
 
                 Claimant's history for left knee injury and complaints 
 
            dates back to May 3, 1976 (ex. J, volume 2, pp. 48-52).
 
            
 
                 A radiology consultation dated January 30, 1987, states 
 
            that patient fell two months ago and felt pain in the medial 
 
            portion of her left knee (ex. J. vol. 1, p. 63). 
 
            
 
                 On February 4, 1987, Donald Berg, M.D., an orthopedic 
 
            surgeon, acting as a consultant, diagnosed claimant had 
 
            bursitis of the left knee and exogenous obesity.  He stated 
 
            that claimant had gained 45 pounds since the injury to her 
 
            back and he did not feel that she would improve until she 
 
            loses weight (ex. J, vol. 2, p. 45).
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 Claimant saw Patrick M. Sullivan, M.D., an orthopedic 
 
            surgeon, on March 30, 1987.  He stated that claimant 
 
            suffered a forced flexion injury to her left knee in 
 
            November 1986.  The knee was locked at that point and a few 
 
            days later worked itself free.  Since then she has had 
 
            effusion and acute pain.  He recorded that the patient is a 
 
            lady of short stature (5'5" tall) that weighs about 240 
 
            pounds.  He said the patient has early degenerative 
 
            arthritis of the medial compartment of the left knee.  In 
 
            addition, it appears that she may have a degenerative tear 
 
            of the meniscus (ex. 4, pp. 1 & 2).  On July 14, 1987, he 
 
            performed an arthroscopy of the left knee with chondral 
 
            shaving of both lateral and medial femoral chondyle (ex. J. 
 
            vol 2, pp. 20-22).  On May 8, 1989, Dr. Sullivan recorded 
 
            that two months ago claimant had a twisting episode of the 
 
            right knee which caused a second degree right medial 
 
            collateral ligament injury and possible occult meniscal 
 
            injury (ex. 4, p. 4).  
 
            
 
                 In a letter on October 6, 1988, Dr. Sullivan wrote to 
 
            claimant's attorney, "We believe this is primary 
 
            degenerative arthrosis.  There is no reason to believe that 
 
            the degenerative arthrosis is secondary to her back problem 
 
            or her employment.  However, once degenerative arthrosis is 
 
            present, it can be aggravated by physical activity."  (ex. 
 
            4, p. 6).
 
            
 
                 In his deposition, on July 26, 1989, Dr. Sullivan 
 
            testified that his records did not document and he had no 
 
            recollection that claimant reported to him that she was 
 
            injured at work in June of 1985 (ex. 14, p. 13).  Dr. 
 
            Sullivan's expert medical opinion was that this injury of 
 
            June 25, 1985, was not the cause of her left knee problem.  
 
            Defendants' counsel asked Dr. Sullivan is he had an opinion 
 
            as to whether a change in posture or weight bearing (because 
 
            of an alleged back injury in June of 1985) could have caused 
 
            this problem with degenerative arthritis in her knee.  Dr. 
 
            Sullivan responded, "I don't think -- no.  I don't think the 
 
            injury to the back is related to the degenerative arthritis 
 
            problem in the knee."  "Is that opinion to a reasonable 
 
            degree of medical certainty?"  "Yes."  (ex. 14, p. 15).
 
            
 
                 Wherefore, based upon the foregoing evidence, it is 
 
            determined that claimant sustained an injury to her right 
 
            shoulder, neck, right arm, and low back on June 25, 1985, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 It is further determined that based upon the foregoing 
 
            evidence, claimant did not sustain an injury to either her 
 
            left knee or her right knee on June 25, 1985, which arose 
 
            out of and in the course of employment with employer.  The 
 
            opinion of Dr. Sullivan is preferred over the opinion of Dr. 
 
            Hines, since Dr. Sullivan is an orthopedic surgeon and the 
 
            treating physician for both of her knees.  Rockwell Graphics 
 
            Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).  
 
            Dr. Sullivan as the treating physician had more opportunity 
 
            to form his expert opinion.  Lemon v. Georgia Pacific Corp., 
 
            II Iowa Industrial Commissioner Report 204, 205 (App. Dec. 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            1981); Clement v. Southland Corp, II Iowa Industrial 
 
            Commissioner Report 56, 58 (1981).  In addition, Dr. 
 
            Sullivan's expertise as an orthopedic surgeon gives his 
 
            testimony greater weight.  Reiland v. Palco, Inc., 
 
            Thirty-second Biennial Report of the Industrial Commissioner 
 
            56 (1975); Dickey v. ITT Continental Baking Co., 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            89 (1979).
 
            
 
                 Even though Dr. Sullivan said that work could aggravate 
 
            the arthritis, he specifically stated that her work and her 
 
            back injury did not do so.  Therefore, claimant's knee 
 
            problems were not caused by the specific incident which 
 
            occurred on June 25, 1985, nor are they the result of 
 
            cumulative trauma during the course of her employment for 
 
            employer.  
 
            
 
                causal connection-entitlement-temporary disability
 
            
 
                 It is determined that the injury of June 25, 1985, is 
 
            the cause of temporary disability.  The same remarks and 
 
            quotes in the foregoing section of Dr. Hill and Dr. Hines 
 
            that established that the employment caused the injury also 
 
            established that the injury was the cause of claimant's time 
 
            off work for this injury.  
 
            
 
                 It is determined that claimant is entitled to 48.286 
 
            weeks of healing period benefits for the period from June 
 
            29, 1985, when Dr. Hill took claimant off work, until June 
 
            3, 1986, when Dr. Hines stated that claimant had attained 
 
            maximum medical improvement.  Citations to the record for 
 
            this period of time are given in the foregoing section.
 
            
 
                 Actually, Dr. Hines noted in his records on April 15, 
 
            1986, that claimant had not had any improvement.  On May 1, 
 
            1986, he said she had the same complaints.  On June 3, 1986, 
 
            he said that she had reached the point of maximum healing.  
 
            Thus, even though it appears from the records that claimant 
 
            had failed to improve after April 15, 1986, claimant, 
 
            nevertheless, has been allowed temporary disability benefits 
 
            for another month and one-half, until June 3, 1986, when Dr. 
 
            Hines unequivocally stated that she had reached the point of 
 
            maximum medical healing (ex. 3, pp. 1 & 40).  
 
            
 
                 Dr. Hines explained in his deposition, "There certainly 
 
            seemed to be enough time having transpired in a year for her 
 
            to have improved as much as possible."  (ex. 12, p. 63).  
 
            Dr. Hines granted that claimant still had problems but he 
 
            felt that maximum healing had occurred and shortly after 
 
            that gave claimant an impairment rating on August 22, 1986.  
 
            He further stated that he felt on June 3, 1986, it was time 
 
            for claimant to begin some work hardening (ex. 12, p. 63).
 
            
 
                 Even though Dr. Hill disputed claimant's ability to 
 
            work one hour a day waitressing as a form of gradual 
 
            rehabilitation as recommended by Dr. Hines on June 3, 1986, 
 
            nevertheless, this does not contradict or refute Dr. Hines' 
 
            opinion that claimant had, in fact, reached the point of 
 
            maximum medical improvement (ex. 2, pp. 4 & 5).  
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Dr. Hill testified in his deposition that claimant had 
 
            reached a plateau of healing on March 3, 1987, however, he 
 
            said it was because he determined on this date that claimant 
 
            would not be able to return to truck driving and that is why 
 
            she had probably arrived at maximum healing at this point 
 
            (ex. 11, p. 22).  It should be noted however, that returning 
 
            to one's former employment is not the test of maximum 
 
            medical improvement or healing, but rather, a totally 
 
            different factor used to determine the end of healing period 
 
            under Iowa Code section 85.34(1).  Thus, Dr. Hill's 
 
            determination of maximum medical improvement is based upon 
 
            an erroneous standard. 
 
            
 
                 Furthermore, a close examination of Dr. Hill's office 
 
            notes from May 1986 through March 3, 1987, a total of nine 
 
            entries, does not contain one single comment to the effect 
 
            that claimant had shown any improvement.  On the contrary, 
 
            she continued to have problems with her neck, back, and knee 
 
            as well as depression (ex. 2, pp. 32-36).
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 
            to 48.286 weeks of healing period benefits from June 29, 
 
            1985, to June 3, 1986.
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that the injury of June 25, 1985, was 
 
            the cause of permanent disability.  The statements and 
 
            quotes of Dr. Hill and Dr. Hines in the section entitled 
 
            "Injury" which establish that the employment was the cause 
 
            of the injury also establish that the injury was the cause 
 
            of permanent disability.
 
            
 
                 The parties stipulated that in the event that it was 
 
            determined that claimant had sustained a permanent 
 
            disability, that the type of permanent disability is 
 
            industrial disability to the body as a whole.
 
            
 
                 It is determined that claimant has sustained a 45 
 
            percent industrial disability to the body as a whole and 
 
            that claimant is entitled to 225 weeks of permanent partial 
 
            disability benefits.
 
            
 
                 Claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that she is permanently and 
 
            totally and disabled.  
 
            
 
                 An overview of claimant's industrial disability is as 
 
            follows:
 
            
 
                 Even though the physical injury has only been described 
 
            as tenderness, spasm, trigger points, cervical strain, and 
 
            plexus stretch, nevertheless, the vocational rehabilitation 
 
            consultants in this case testify that claimant's 
 
            employability is extremely limited, her access to the 
 
            employment market is severely diminished and that her 
 
            potential earning capacity has been reduced.  Claimant's age 
 
            and the fact that she is foreclosed from returning to her 
 
            former employment as an over-the-road truck driver 
 
            substantially increase her industrial disability.  Even 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            though Dr. Hines described herniated discs at L3-4 and L4-5, 
 
            the myelogram only showed bulging discs.  There was no 
 
            evidence that the bulging discs were herniated or were 
 
            causing any nerve root impingement nor was there any 
 
            evidence that they were a cause of claimant's back or leg 
 
            pain.  Furthermore, all of the other objective tests, the 
 
            x-ray of the cervical spine, the EMG study of her upper 
 
            extremities, the unenhanced/enhanced CT scan of the head, 
 
            the myelogram of the cervical and thoracic spine, and the 
 
            MRI (ex. 3, p. 55) did not demonstrate any physical or 
 
            functional abnormalities.  No surgery was recommended or 
 
            performed for the bulging discs or for anything else.  
 
            
 
                 There is no impairment rating in evidence from Dr. Hill 
 
            or Dr. Worrell.  Dr. Hines determined that claimant had 
 
            sustained a 23 percent "dysfunction" to the whole person and 
 
            he attributed 15 percent of the 23 percent to sexual 
 
            dysfunction because claimant has almost completely lost her 
 
            ability to enjoy sex secondary to pain and dysfunction (ex. 
 
            3, pp. 1-4; ex. 12, pp. 22-40).
 
            
 
                 Dr. Hines said claimant was probably restricted to 
 
            relatively sedentary work with the opportunity to move from 
 
            one position to another.  In sales work she should avoid 
 
            prolonged standing and in secretarial work she should avoid 
 
            prolonged sitting (ex. 12, p. 42).
 
            
 
                 Dr. Hines' 23 percent rating to the whole person did 
 
            not include anything for the problems to claimant's knees 
 
            (ex. 12, p. 61).  Later Dr. Hines opined that claimant was 
 
            totally disabled (ex. 3, pp. 44 & 45).
 
            
 
                 Although Dr. Hill did not give an impairment rating he 
 
            did state that because of the prolonged nature of the 
 
            problems that he would have to say that there is permanency 
 
            involved (ex. 11, p. 18).  He stated that claimant was 
 
            foreclosed from truck driving as well as other manual labor, 
 
            heavy lifting occupations that she has performed in the past 
 
            such as farming and being a nurse's aide because all of 
 
            those areas involve lifting.  He said she should not lift 
 
            over 25 pounds on a repetitive basis, avoid long standing on 
 
            hard surfaces, climbing, or performing work with repetitive 
 
            back motions.  Dr. Hill reaffirmed his letter of April 28, 
 
            1987, in which he stated:
 
            
 
                 I do not feel that Ms. Tuberty is employable as a 
 
                 truck driver or for many other vocations.  Other 
 
                 vocations would include areas which require 
 
                 standing or walking over 2 to 3 hours at a time, 
 
                 sitting for longer than 3 hours straight, lifting 
 
                 over 25 pounds on a routine or repetitive basis, 
 
                 or occupations requiring repetitive bending, 
 
                 reaching, stooping, or climbing.  The duration of 
 
                 these limitations are specifically unknown, but 
 
                 assuredly longer than the next 6 months and 
 
                 possibly years.
 
            
 
            (exhibit 2, page 8)
 
            
 
                 Thus, in so far as claimant is foreclosed from her 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            primary employment of truck driving, as well as her 
 
            secondary employments of farming and nurse's aide work, 
 
            claimant has sustained a substantial industrial disability.  
 
            Michael v. Harrison County, Thirty-fourth Biennial Report 
 
            of the Industrial Commissioner 218, 220 (Appeal Decision 
 
            January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I 
 
            Iowa Industrial Commissioner Report 282 (1984).
 
            
 
                 Claimant was examined by David J. Boarini, a board 
 
            certified neurosurgeon, on one occasion for defendants on 
 
            February 5, 1987.  He found that she had reached maximum 
 
            medical recuperation, his examination was entirely normal, 
 
            he refused to give her any impairment rating, he stated that 
 
            he would not place any restrictions on the patient and he 
 
            could find no reason that she could not return to work 
 
            impliedly as an over-the-road truck driver (ex. A, 
 
            deposition ex. 1).
 
            
 
                 Dr. Boarini said claimant did not have any disc 
 
            herniation (ex. A, p. 20).  Claimant did not relate any 
 
            complaints with regard to her low back to Dr. Boarini (ex. 
 
            A, p. 21).  However, Dr. Boarini said it was possible to be 
 
            hit with the box in the right shoulder and to have low back 
 
            complaints (ex. A, p. 22). 
 
            
 
                 The restrictions of Dr. Hill, the treating physician, 
 
            may be overly strict and the absence of restrictions or 
 
            precautions by Dr. Boarini may be overly optimistic.  The 
 
            best restriction probably lies somewhere in between the two 
 
            opinions.
 
            
 
                 The surveillance performed by defendants on claimant 
 
            through private investigator Matthew I. Solon, demonstrated 
 
            that claimant can put a 32-pound saddle on a horse (tr. p. 
 
            152), that she can ride two miles while the horse is walking 
 
            (tr. p. 153), that she can ride one horse and lead another 
 
            (tr. p. 154), and that she rode a horse at a walk for about 
 
            two hours with a group of riders from Jefferson to Fort 
 
            Madison (exs. D & E).  Claimant rode three miles on the 
 
            trail ride to Fort Madison (ex. C, p. 27).  At the same time 
 
            claimant testified that she mounted the horses from a 
 
            bandstand or the bed of a pickup truck, that she could only 
 
            ride a horse while the horse was walking, and that she could 
 
            only ride occasionally for short distances.  This 
 
            surveillance evidence does not refute that fact that 
 
            claimant should be restricted to light and sedentary work as 
 
            stated by Dr. Hill and Dr. Hines that she should not lift 
 
            more than 25 pounds occasionally or repetitively.
 
            
 
                 There seems to be no question, however, that claimant 
 
            is foreclosed from her former employments which required 
 
            heavy lifting as well as prolonged sitting and standing 
 
            based upon the testimony of Dr. Hill and Dr. Hines, both of 
 
            whom were treating physician.  Rockwell Graphics Systems, 
 
            Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
            
 
                 Several physical capacity examinations show that 
 
            claimant must alternate standing/walking and sitting and is 
 
            limited to lifting no more than 20 or 25 pounds (ex. K, p. 
 
            7; Ex. R, pp. 1, 3, 4, 14, 22, & 26-28). 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 Thus, it is determined that based upon the evidence 
 
            presented that claimant is prohibited from returning to 
 
            over-the-road truck driving, farming and nurse's aide work, 
 
            which are her primary previous employments, and therefore, 
 
            claimant has sustained a substantial industrial disability.
 
            
 
                 Defendants did not demonstrate that any of claimant's 
 
            prior neck strains, in particular, the one that occurred on 
 
            May of 1985, had any effect on her current injury and 
 
            disability.  On the contrary, claimant introduced evidence 
 
            through Dr. Hill, the treating physician for all injuries, 
 
            that all prior neck strains had resolved at the time of the 
 
            injury on June 25, 1985 (ex. 11, p. 17).
 
            
 
                 Claimant, born March 2, 1943, was 42 years old at the 
 
            time of the injury, 47 years old at the time of the hearing, 
 
            and 48 years old at the time of this decision.  Claimant's 
 
            industrial disability is increased because it occurred at or 
 
            near the peak of her earnings career.  Becke v. 
 
            Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
            Industrial Commissioner 34 (Appeal Decision  1979); Walton 
 
            v. B & H Tank Corp., II Iowa Industrial Commissioner Report 
 
            426 (1981); McCoy v. Donaldson Company, Inc., file numbers 
 
            782670 & 805200 (Appeal Decision 1989).
 
            
 
                 Claimant's high school education, nine months of 
 
            nurse's training, a hog production course in which she 
 
            received an A, as well as the completion of the bookkeeping 
 
            and wordprocessing course demonstrates that claimant is 
 
            capable of retraining from an intellectual point of view, 
 
            even though she claimed to have difficulties with school 
 
            types of work.
 
            
 
                 Claimant's education and potential to be educated on 
 
            subjects in which she is interested, would not appear to be 
 
            a problem.  Conrad v. Marquette School, Inc., IV Iowa 
 
            Industrial Commissioner Report 74, 89 (1984).
 
            
 
                 Claimant was examined by numerous vocational 
 
            rehabilitation consultants.
 
            
 
                 Candace Kaelber saw claimant from April 8, 1986, 
 
            through March 24, 1987 (ex. K, pp. 1-17).  Kaelber testified 
 
            at the hearing that employer offered claimant a job as a 
 
            truck driver based on Dr. Boarini's report, but it was 
 
            declined by claimant's attorney who said it would be direct 
 
            disregard of her treating physicians instructions (ex. K, p. 
 
            35; tr. pp. 233-235).
 
            
 
                 A vocational assessment was performed for defendants by 
 
            Intracorp on January 8, 1990, which was prepared in part by 
 
            Kent Jayne, M.A., C.R.C. (ex. L).  His labor market access 
 
            and earnings capacity analysis found that claimant has 
 
            sustained a loss of 64 percent of the previously accessible 
 
            jobs based upon Dr. Hill's restrictions, but based upon Dr. 
 
            Boarini's restrictions she had no loss of access to the 
 
            labor market.  
 
            
 
                 Jayne testified that prior to her injury her earnings 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            capacity was $282.85 per week based on accessible jobs prior 
 
            to this injury and after the injury she still had an 
 
            expected earnings capacity of $282.13 based upon the jobs 
 
            still accessible based upon Dr. Hill's restrictions.  He 
 
            said that she had no loss of earnings capacity based upon 
 
            Dr. Boarini's absence of restrictions (ex. L, pp. 4 & 5).  
 
            
 
                 Jayne testified at the hearing that claimant could do 
 
            light or sedentary work.  She earned 17 cents a mile with 
 
            employer which amounts to $10.50 per hour on a 40-hour week, 
 
            but claimant usually worked 70 to 80 hours per week and this 
 
            reduces her hourly wage to approximately $5, $6 or $7 per 
 
            hour (tr. pp. 244, 245 & 261).  Jayne admitted that even 
 
            though claimant's hourly loss might be little or nothing, 
 
            nevertheless, he did not mean to indicate that with a 64 
 
            percent loss of access to the job market that she would not 
 
            have trouble getting a job in her home community (tr. p. 
 
            263).  
 
            
 
                 Robert W. Jones, a vocational evaluator at the Mercy 
 
            Occupational Evaluation Center, evaluated claimant on 
 
            January 29, 1987 (ex. L, p. 5).  His evaluation included the 
 
            G.A.T.B. vocational aptitude test, the career assessment 
 
            vocational interest test, and the Valpar component work 
 
            sample which tests eye-hand-foot coordination.  He testified 
 
            that claimant had a bad attitude toward the tests and taking 
 
            the tests and that she did not do well because she was not 
 
            motivated to do so (ex. B, pp. 3-12).  She did not do well 
 
            on the career assessment inventory interest test because of 
 
            a negative attitude (ex. B, p. 15).  He would expect someone 
 
            with a high school education, L.P.N. training and night 
 
            courses at the community college to do much better (ex. B, 
 
            p. 22).  Jones testified, "I don't know  whether I would use 
 
            uncooperative.  I think a better choice might be 
 
            unenthusiastic, somewhat reluctant and resistant."  (ex. B, 
 
            p. 28).
 
            
 
                 Mercy Hospital Occupational Evaluation Center, based on 
 
            Dr. Boarini's absence of medical restrictions concluded that 
 
            any effort she makes towards return to competitive, gainful 
 
            employment will pretty much depend on her own interests and 
 
            motivation (ex. J, vol, 1, p. 69).  
 
            
 
                 Roger Marquardt, a professional vocational 
 
            rehabilitation consultant, personally interviewed claimant 
 
            on October 12, 1987 (ex. 13, pp. 3-12).  Marquardt 
 
            testified, "When I saw her, it was my understanding she had 
 
            not applied for full-time employment.  She had not made 
 
            efforts along those lines.  She was, when I saw her, very 
 
            involved and preoccupied almost with the symptoms she was 
 
            having concerning her pain and also a lot of concern over 
 
            her marital situation." (ex. 13, p. 17).  Marquardt admitted 
 
            that during the nine or ten hours he spent on this case, he 
 
            was never asked to attempt to actually find a job for 
 
            claimant (ex. 13, p. 19).  Marquardt indicated that claimant 
 
            could be placed after a work hardening program and 
 
            rebuilding her self-esteem (ex. 17, pp. 2-23).  He felt that 
 
            she could return to her previous employment of driving a 
 
            school bus (ex. 13, p. 27).  He admitted, however, it would 
 
            be difficult for claimant to get a job with her restrictions 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            and lack of transferable skills in her local economy (ex. 
 
            13, pp. 30 & 31),  Marquardt explained, "It takes special 
 
            effort, counseling, support, motivation and also tactfully 
 
            working with a prospective employer to secure employment.  
 
            Just to go out and get a job for someone that has 
 
            restrictions is very difficult."  (ex. 13, p. 33).  
 
            
 
                 In Marquardt's written report dated March 10, 1988, he 
 
            stated that claimant is now physically limited to very light 
 
            or sedentary activities.  She cannot return to work as a 
 
            tractor-trailer driver, a farmer or a nurse's aide.  Any 
 
            skills she obtained from past work are not transferable to 
 
            similar occupations considering her physical restrictions as 
 
            outlined by Dr. Hines and Dr. Hill.  Following those 
 
            restrictions, she can only perform nonskilled light or 
 
            sedentary work.  He said that conservatively she has lost at 
 
            least 50 percent of her access to the employment market (ex. 
 
            13, dep. ex. 4, pp. 4 & 5).
 
            
 
                 Marquardt estimated that claimant had sustained a 53 
 
            percent loss of earning capacity based upon his calculations 
 
            of what she was earning before this injury and what he 
 
            thought she could earn now (ex. 13, dep. ex. 4, pp. 4 & 5).
 
            
 
                 Ethel E. Sherman prepared an evaluation on November 9, 
 
            1989, for the Division of Vocational Rehabilitation Services 
 
            which contained several insights into claimant's desires and 
 
            capability with respect to work and she concluded her report 
 
            as follows, "For the first time in our work witih [sic] 
 
            Vocational Rehabilitation we feel we must say that this lady 
 
            is unemployable for the combination of the reasons indicated 
 
            above."  (ex. 7, p. 6; ex. I, p. 47).
 
            
 
                 Ethel Sherman's opinion that claimant was unemployable 
 
            was based on four handicaps (1) physical inability to sit or 
 
            stand for prolonged periods of time; (2) emotional 
 
            impairments which may be greater than her physical 
 
            impairments; (3) her mental capability is limited by her 
 
            verbal inabilities in areas which do not involve physical 
 
            work; and (4) claimant's strong preference for outdoor work 
 
            and dislike for indoor activities.  (ex. 7, p. 6).  Thus, a 
 
            certain amount of claimant's unemployability in Sherman's 
 
            opinion is based upon personal factors rather than this work 
 
            injury.  
 
            
 
                 Sherman stated, "We think that at this time she would 
 
            find it nearly impossible to even get a job in business or 
 
            industry partly because of her physical limitations and 
 
            partly because of basic attitudes that can be very 
 
            aggressive." (ex. 7, p. 6).  
 
            
 
                 Claimant's motivation to return to work is in question 
 
            because shortly after this injury, she married her second 
 
            husband on July 14, 1985, and moved to Albert Lea, 
 
            Minnesota, and continued to live there with him until she 
 
            returned to Iowa in February of 1987 (tr. pp. 67 & 71).  The 
 
            second marriage was dissolved on June 20, 1988 (ex I, p. 
 
            25).   Shortly after this injury, claimant's driver's 
 
            license was suspended on account of speeding violations.  
 
            Kaelber reported on April 8, 1986, that claimant had six 
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            speeding tickets over the last year and lost her driver's 
 
            license for 90 days (ex. I, p. 2).  Claimant was notified by 
 
            the Iowa Department of Transportation on March 21, 1986, 
 
            that effective April 20, 1986, her privileges to operate and 
 
            register motor vehicles was suspended until July 19, 1986, 
 
            because she was a habitual violator (ex. Q, p. 51).  
 
            Furthermore, claimant developed knee injuries and complaints 
 
            in 1986 which resulted in the arthroscopic surgery of Dr. 
 
            Sullivan on July 14, 1987 (ex. 4, pp. 1-3).  
 
            
 
                 Although claimant inquired about employment at various 
 
            places, there is no evidence that she made a diligent search 
 
            for remunerative employment other than to clean homes and 
 
            baby-sit (tr. pp. 110 & 111).  Claimant inquired about jobs 
 
            but did not make out any applications (ex. C, p. 19).  
 
            Claimant was denied twice for social security disability 
 
            benefits but planned to apply again (ex. C, pp. 50 &51).  
 
            
 
                 Because of claimant's failure to attempt any employment 
 
            in the competitive employment market it is difficult to 
 
            discern the precise amount of claimant's industrial 
 
            disability.  Schofield v. Iowa Beef Processors, Inc., II 
 
            Iowa Industrial Commissioner Report 334, 336 (1981).  
 
            
 
                 An employee seeking workers' compensation would do well 
 
            to make a diligent attempt to find employment.  Hild v. 
 
            Natkin & Co., I Iowa Industrial Commissioner Report 144 
 
            (Appeal Decision 1981).  Beintema v. Sioux City Engineering 
 
            Co., II Iowa Industrial Commissioner Report 24 (1981); Cory 
 
            v. Northwestern States Portland Cement Company, Thirty-third 
 
            Biennial Report of the Industrial Commissioner 104 (1976).
 
            
 
                 Employers are responsible for the reduction in earnings 
 
            capacity caused by the injury, they are not responsible for 
 
            a reduction in actual earnings because the employee resists 
 
            returning to work.  Williams v. Firestone Tire and Rubber 
 
            Co., III Iowa Industrial Commissioner Report 279 (1982).
 
            
 
                 Wherefore, based upon (1) the physical injury diagnosed 
 
            by Dr. Hill as ligamentous strain and spasm which then 
 
            developed into chronic inflammatory reaction which then 
 
            caused chronic spasticity of the neck and low back; (2) the 
 
            fact that claimant has a bulging disc at L3-4 and L4-5; (3) 
 
            the fact that the cervical x-ray, EMG, CT scan of the head, 
 
            and an MRI did not demonstrate any abnormality or objective 
 
            evidence for claimant's complaints; (4)the fact that Dr. 
 
            Hines has assessed a 8 percent dysfunction which he probably 
 
            intended to mean was a 8 percent permanent physical 
 
            impairment (after deducting the 15 percent sexual 
 
            impairment); (5) the fact that Dr. Hines and Dr. Hill 
 
            believe that claimant is restricted to no more than light or 
 
            sedentary work; (6) that Dr. Hill recommended lifting no 
 
            more than 25 pounds either occasionally or repetitively; (7) 
 
            tempered by the fact that Dr. Boarini did not find any 
 
            permanent impairment, did not give any impairment rating, 
 
            imposed no restrictions and authorized claimant to return to 
 
            work full time as an over-the-road trucker; (8) that the 
 
            weight of the evidence is that claimant is foreclosed from 
 
            returning to work as a full-time over-the-road truck driver; 
 
            (9) that in her mid-forties claimant is at the peak of her 
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            earnings career; (10) that claimant is retrainable and has 
 
            the intellectual capacity for retraining; (11) that claimant 
 
            has not made a serious attempt to return to work and has 
 
            exhibited no serious, diligent effort to do so; (12) the 
 
            fact that Marquardt thought she has lost 50 percent access 
 
            to the labor market; (13) the fact that Jayne thought she 
 
            has lost 64 percent access to the labor market; (14) the 
 
            fact that Sherman thought claimant was unemployable which 
 
            was partially due to the physical effects of this injury; 
 
            and (15) based upon all of the evidence in this case; (16) 
 
            and based upon 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 
 
            (17) based upon agency expertise [Iowa Administrative 
 
            Procedure Act 17A.14(5)]; it is determined that claimant has 
 
            sustained a 45 percent industrial disability to the body as 
 
            a whole and is entitled to 225 weeks of permanent partial 
 
            disability benefits.
 
            
 
                                 medical benefits
 
            
 
                 It is determined that claimant is entitled to $1,041.60 
 
            in medical mileage benefits for 2,160 miles for Dr. Hill and 
 
            2,800 miles for Dr. Hines.  This is a total of 4,960 miles 
 
            at 21 cents per mile and results in a total mileage 
 
            allowance of $1,041.60.
 
            
 
                 The mileage is calculated at 21 cents per mile even 
 
            though the allowable rate for the period July 1, 1985 
 
            through June 30, 1986, was a mileage rate of 24 cents per 
 
            mile because it is not possible to ascertain from the 
 
            evidence how many miles were traveled during the one year 
 
            with the higher allowance.
 
            
 
                 Mileage cannot be allowed for the trips to see Dr. 
 
            Sullivan for the reason that he treated claimant's knees and 
 
            the knees were determined to be injuries that did not arise 
 
            out of and in the course of employment with employer.
 
            
 
                 Claimant may be entitled to the 900 miles for travel to 
 
            the Jefferson County Hospital, but this determination cannot 
 
            be made because the hospital treated both claimant's neck 
 
            and back injuries and also claimant's knee injuries.  
 
            (claimants ex. 1F, pp. 1 & 2).  It cannot be determined what 
 
            mileage is due to the injury to the right shoulder, neck and 
 
            back.
 
            
 
                 Defendants stipulated that if the provider of medical 
 
            services and supplies would testify, that they would testify 
 
            (1) that the fees charged were reasonable and (2) that the 
 
            services were for reasonable and necessary medical treatment 
 
            for the alleged work injury.  However, defendants disputed 
 
            whether the expenses were causally connected to the work 
 
            injury.
 
            
 
                 Therefore, a determination on the medical mileage to 
 
            the Jefferson County Hospital and several other bills cannot 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            be made because of insufficient evidence to make a 
 
            determination that the amounts claimed were caused by the 
 
            right shoulder, neck and back injury which occurred on June 
 
            25, 1985.
 
            
 
                 Claimant wants to collect $843.80 for charges at Easter 
 
            Pharmacy (ex. 1B).  However, claimant only submits a balance 
 
            due bill with no itemization.  Attached to defendants' 
 
            posthearing brief is a breakdown of prescriptions by date, 
 
            doctor, type of medication, and the reason for the 
 
            medication; however, no amounts are given for the particular 
 
            prescription.  Claimant would be entitled to the 
 
            prescriptions ordered by Dr. Worrell, Dr. Hines and Dr. Hill 
 
            for the prescriptions which are related to the right 
 
            shoulder, neck and back injury, but not those prescribed for 
 
            weight loss, ulcers, diarrhea, reduction of elevated serum 
 
            cholesterol, ulcerative colitis, duodenal ulcer, abdominal 
 
            pain, antibiotics, and itching.  Since it is not possible to 
 
            determine the amount of prescription drugs, it can only be 
 
            stated that defendants owe for those caused by this injury, 
 
            but no order can be given because the amount cannot be 
 
            determined from the evidence submitted.
 
            
 
                 Defendants would owe for the charges of the Jefferson 
 
            County Hospital caused by this injury to the right shoulder, 
 
            neck and back, but since the hospital also treated the knees 
 
            and the charges are not itemized by injury, it can only be 
 
            said that defendants owe for the charges caused by this 
 
            injury to the neck and back, but no amount can be ordered 
 
            because it is impossible to determine the amount from the 
 
            evidence submitted (ex. 1C).  
 
            
 
                 The Medical Arts Clinic charge of $236.88 is not 
 
            itemized (ex. 1D) and the Ottumwa Neurological Associates 
 
            charge in the amount of $95.20 indicates that his bill is 
 
            for medical reports and letters rather than medical 
 
            treatment (ex. 1E).  
 
            
 
                 Wherefore, even though claimant may be entitled to 
 
            recover more, the evidence only supports a finding that 
 
            defendants pay claimant $1,041.60 for 4,960 miles at the 
 
            rate of 21 cents per mile to see Dr. Hines and Dr. Hill.
 
            
 
                                      costs
 
            
 
                 From claimant's request for costs attached to the 
 
            prehearing report in the total amount of $692.16, claimant 
 
            is allowed $562.90 for the following costs:  Claimant is 
 
            entitled to $150 of the $250 charge by Dr. Hill for a 
 
            deposition; transcript of Dr. Hill, $212; transcript of Dr. 
 
            Hines, $65.55; transcript of Mr. Marquardt, $35.40; 
 
            transcript of Mr. Jones, $40.30; transcript of Dr. Boarini, 
 
            $21.85; transcript of Dr. Sullivan, $37.80.
 
            
 
                 The $8.50 shown for a transcript of claimant's 
 
            deposition and $28.76 for video transfer are trial 
 
            preparation expenses which are not allowable from defendants 
 
            as well as the $100 of Dr. Hill's deposition charge.
 
            
 
                                conclusions of law
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            
 
                 Wherefore, based upon the foregoing and following 
 
            principles of law, these conclusions of law are made:
 
            
 
                 That claimant sustained an injury to her right 
 
            shoulder, neck, and lumbar spine on June 25, 1985, which 
 
            arose out of and in the course of employment with employer.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that she sustained an injury 
 
            to her left knee or her right knee which was caused by the 
 
            incident which occurred on June 25, 1985.  Iowa Code section 
 
            85.3(1); 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).
 
            
 
                 That the injury of June 25, 1985, to claimant's right 
 
            shoulder, cervical spine and lumbar spine was the cause of 
 
            both temporary and 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 is entitled to 48.286 weeks of healing 
 
            period benefits for the injury to her right shoulder, neck 
 
            and back for the period from June 29, 1985 to June 3, 1986.  
 
            Iowa Code section 85.34(1).
 
            
 
                 That claimant sustained an industrial disability of 45 
 
            percent to the body as a whole and is entitled to 225 weeks 
 
            permanent partial disability benefits.  Iowa Code section 
 
            85.34(2)(u).
 
            
 
                 That claimant is entitled to $1,041.60 is medical 
 
            mileage expenses for the trips to Dr. Hill and Dr. Hines.
 
            
 
                 That claimant is entitled to $562.90 for the costs 
 
            itemized above.  
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant forty-eight point two 
 
            eight six (48.286) weeks of healing period benefits at the 
 
            stipulated rate of one hundred ninety-three and 86/100 
 
            dollars ($193.86) per week for the period from June 29, 1985 
 
            to June 3, 1986, in the total amount of nine thousand three 
 
            hundred sixty and 72/100 dollars ($9,360.72) commencing on 
 
            June 29, 1985.  
 
            
 
                 That defendants pay to claimant two hundred twenty-five 
 
            (225) weeks of permanent partial disability benefits at the 
 
            rate of one hundred ninety-three and 86/100 dollars 
 
            ($193.86) per week for an industrial disability of 
 
            forty-five (45) percent to the body as a whole in the total 
 
            amount of forty-three thousand six hundred eighteen and 
 
            50/100 dollars ($34,618.50) commencing on June 3, 1986.
 
            
 
                 That defendants are entitled to a credit for one 
 
            hundred seventy-five point seven one four (175.714) weeks of 
 

 
            
 
            Page  19
 
            
 
            
 
            
 
            
 
            workers' compensation benefits paid to claimant prior to 
 
            hearing at the rate of one hundred ninety-three and 86/100 
 
            dollars ($193.86) per week in the total amount of 
 
            thirty-four thousand six-three and 92/100 dollars 
 
            ($43,063.92). 
 
            
 
                 That all of these benefits have accrued and are to be 
 
            paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30.
 
            
 
                 That defendants pay to claimant one thousand forty-one 
 
            and 60/100 dollars ($1,041.60) in medical mileage expenses.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at hearing and the cost 
 
            of the transcript, as well as the additional five hundred 
 
            sixty-two and 90/100 dollars ($562.90) in costs itemized 
 
            above, are charged to defendants pursuant to Iowa Code 
 
            section 86.40, 86.19(1) and rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1992.
 
            
 
            
 

 
            
 
            Page  20
 
            
 
            
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Jacques D. Schira
 
            Attorney at Law
 
            500 First Interstate Bank Bldg.
 
            Des Moines, Iowa  50309
 
            
 
            Mr. Ross H. Sidney
 
            Ms. Iris J. Post
 
            Attorneys at Law
 
            2222 Grand Ave
 
            PO BOX 10434
 
            Des Moines, Iowa  50306
 
            
 
 
         
 
         Page   1
 
         
 
                                       2903 2906 52906 2901 2902 2907 
 
                                       51100 51401 51402.20 51402.30 52209 
 
                                       51402.40 51802 51803 51804 1402.60 
 
                                       3701
 
                                       Filed February 19, 1992
 
                                       Walter R. McManus, Jr.
 
         
 
                           before the iowa industrial 
 
                                   commissioner
 
         ____________________________________________________________
 
                                       :
 
         JEANETTE TUBERTY,             :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :      File No. 798936
 
         HAROLD DICKEY TRASNPORT, INC, :
 
                                       :  A R B I T R A T I O N
 
              Employer,                :
 
                                       :      D E C I S I O N
 
         and                           :
 
                                       :
 
         UNITED STATES FIDELITY &      :
 
         GUARANTY COMPANY,             :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         2903 2906
 
         The fact claimant received $2500 under an agreement for partial 
 
         commutation prior to hearing, in order to pay several bills, was 
 
         not a determination of claimant's rights or defendants' 
 
         liability.  Therefore, this is a proceeding in arbitration and 
 
         not review-reopening pursuant to Iowa Code section 86.14
 
         
 
         52906
 
         Claimant's job search list was excluded from evidence because it 
 
         was not timely served as required by paragraph seven of the 
 
         hearing assignment order.
 
         
 
         2901 2902 2906
 
         It was not necessary for claimant to amend the original notice 
 
         and petition at hearing to include other parts of the body 
 
         because the knee(s) were raised by the discovery of both parties.  
 
         Defendants were not misled or surprised and technical rules of 
 
         pleading are not followed in agency practice.  Several cites.
 
         
 
         2907
 
         Some of claimant's costs were allowed and some were disallowed 
 
         basically relying on rule 343 IAC 4.33.
 
         
 
         51100 51401 51402.20 51402.30 52209
 
         It was determined that claimant sustained an injury arising out 
 
         of and in the course of employment to her right shoulder, neck 
 
         and lumbar spine.  It was determined that the problems with her 
 
         knee(s) did not arise out of or in the course of employment with 
 
         employer.  Nor was the knee(s) a cumulative injury.  Claimant was 
 
         five feet five inches tall and weighed 240 pounds.
 
         
 

 
         
 
         Page   2
 
         
 
         51402.40 51802
 
         Healing period found and awarded as justified by the most 
 
         reasonable evidence for the type of injury sustained based on the 
 
         medical evidence to support the period allowed.
 
         
 
         51402.40 51803 51804
 
         Claimant was not permanently and totally disabled.  Claimant 
 
         sustained an industrial disability of 45 percent to the body as a 
 
         whole.  There was little objective evidence of serious physical 
 
         injury, but three out of four vocational rehabilitation 
 
         consultants testified that claimant has lost 50 percent and 64 
 
         percent access to the labor market and one said she was 
 
         unemployable but many of the reasons for her unemployability were 
 
         not caused by this injury but were personal to claimant.
 
         A treating physician assessed a 23 percent dysfunction which was 
 
         interpreted to be a permanent physical impairment rating, but the 
 
         15 percent for sexual dysfunction was subtracted, leaving on an 8 
 
         percent rating.
 
         Claimant, age 42, high school education and a little subsequent 
 
         education, was foreclosed from returning to her former 
 
         occupations of over-the-road truck driver, farmer and nurse's 
 
         aide.  She was retrainable and took a wordprocessing course, but 
 
         otherwise demonstrated no motivation to work or retrain.
 
         
 
         1402.60
 
         Claimant was allowed some medical mileage, but not allowed other 
 
         mileage because it could not be determined from the evidence 
 
         submitted whether it was allowable.  Likewise, some of the other 
 
         medical expenses appeared as if they might be allowable, but 
 
         claimant did not submit sufficient evidence in order to make a 
 
         determination.  In addition, the medical bills were not itemized, 
 
         but were only "balance due" bills showing only a final figure and 
 
         gave no clue as to causal connection.
 
         
 
         3701
 
         Surveillance was performed on two or three occasions.  It 
 
         disclosed that claimant could throw a 32-pound saddle on a horse, 
 
         mount a horse, and ride the horse at a walk for a distance of two 
 
         or three miles.  The surveillance, however, did not refute the 
 
         opinion of doctors that claimant was foreclosed from former 
 
         occupations or that she should not be confined to light or 
 
         sedentary work.
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MICHAEL L. SWIFT,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         ALLIED CONSTRUCTION SERVICES,                File No. 799010
 
         INC.,
 
                                                        A P P E A L
 
              Employer,
 
                                                      D E C I S I 0 N
 
         and
 
         
 
         MARYLAND CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         permanent partial disability and healing period benefits.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibits 1 through 14; and claimant's 
 
         exhibit 15, the admissibility of which is discussed below.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal are whether the deputy erred in 
 
         allowing into evidence the deposition of a witness; whether there 
 
         is a causal connection between claimant's disability and his work 
 
         injury, and the nature and extent of claimantOs disability.
 
         
 
                              REVIEW OF ThE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant testified that he was injured at a construction 
 
         site on May 6, 1985 when he tumbled down a flight of stairs while 
 
         attempting to descend the stairs to the break room.  Claimant, 
 
         who had been a working foreman, said that he returned to work in 
 
         a supervisory capacity only to June 4, 1985.  Claimant reported 
 
         that his physicians have told him it would be very threatening if 
 
         he were to receive another trauma on account of his deep vein 
 
         thrombosis.  He also reported that he was told that drywall work 
 
         especially would be dangerous as would all construction work.
 
         
 
              Claimant also testified that he had sustained a prior 
 

 
         
 
         
 
         
 
         SWIFT V. ALLIED CONSTRUCTION SERVICES, INC.
 
         Page   2
 
         
 
         
 
         right knee injury on Labor Day 1984 when he tripped at home and 
 
         sprained the knee.  He reported that he received treatment at 
 
         the emergency room through his family doctor who referred him 
 
         to James W. Dinsmore, M.D., who performed an arthroscopy in 
 
         November 1984.  Claimant indicated that he recovered quickly 
 
         from that arthroscopy and was back to hanging drywall on the 
 
         Monday following the Thursday surgery.
 
         
 
              In a letter dated October 29, 1985 Dr. Dinsmore reported:
 
         
 
                 Michael Swift re-injured his right knee on 5/6/85 
 
              when he fell down a flight of stairs at work.  Prior to 
 
              this fall, he had undergone arthroscopic surgery on 
 
              11/2/84 at which time a partial medial meniscectomy was 
 
              carried out.  He had gotten along reasonably well 
 
              following that surgery even though we knew that he had 
 
              an old tear of the anterior cruciate ligament.  
 
              Following the 5/6/85 fall, he was unable to return to 
 
              work and was complaining of pain on the top and lateral 
 
              side of the right knee ....
 
         
 
                 ....
 
         
 
                 On examining him on 5/24/85, I noticed that he had a 
 
              markedly positive drawer sign.  This was more 
 
              significant now than it had been prior to his surgery 
 
              in 1984 ....
 
         
 
                     
 
         
 
                 On 6/11/85, I arthroscoped the knee again.  I did 
 
              not find any tearing of the cartilage.  The anterior 
 
              cruciate ligament was completely torn.  I followed this 
 
              procedure with a Slocum pes anserina tendon transfer 
 
              ....
 
         
 
                     
 
         
 
                 On 7/10/85 he phoned stating that he was running a 
 
              temperature.  He was having pain into the thigh and 
 
              groin area.  He was admitted to the Methodist Hospital 
 
              immediately.
 
         
 
                 During his admission, he was diagnosed to have a 
 
              deep vein thrombosis and treated accordingly. ... He 
 
              was finally discharged on 7/20/85 from the Methodist 
 
              Hospital.  During this time he was placed on 
 
              anti-coagulation therapy and it was the intention to 
 
              maintain him on this treatment.  Before his discharge, 
 
              his cylinder cast was removed and he was allowed to 
 
              begin moving the knee ....
 
         
 
                 ....
 
         
 
                 Michael Swift will have a certain degree of 
 
              permanent disability with his knee.  This will not only 
 
     
 
         
 
         
 
         
 
         
 
         SWIFT V. ALLIED CONSTRUCTION SERVICES, INC.
 
         Page   3
 
         
 
         
 
              be injury to the knee but also will have to include his 
 
              complication of deep vein thrombosis.  I feel at this 
 
              time that it is too early to estimate a permanent 
 
              disability.
 
         
 
         (Joint Exhibit 8)
 
         
 
              In a letter dated March 27, 1986 Dr. Dinsmore indicated: 
 
         would presently rate Michael's permanent partial disability at 
 
         approximately 25 percent of the right lower extremity.  This is 
 
         based on his ligamentous instability and the effects of his 
 
         complication of deep vein thrombosis.O
 
         
 
              Dr. Dinsmore testified in his deposition:
 
         
 
              Q.  Okay.  Did you examine the patient on May 24, 
 
              1985?
 
         
 
              A.  I did.
 
         
 
                 ....
 
         
 
              Q.  Were those findings on examination similar to those 
 
              on October 16, 1984?
 
         
 
              A.  Well, they were similar but not the same.
 
         
 
              Q.  And was that thrombosis -- in what leg, Doctor?
 
         
 
              A.  It was in his operative leg.
 
         
 
              Q.  And on a comparison of his stability and his 
 
              condition in March of 1985 and that after the Slocum 
 
              procedure and treatment of his injury in May, what 
 
              difference did you -- would you say there is in the use 
 
              of his knee?
 
         
 
              A.  The main difference was that he wasn't able to 
 
              function following the injury, which I feel aggravated 
 
              his preexisting condition.
 
         
 
              Q.  Would you be able to, with a reasonable degree of 
 
              medical certainty, give us an opinion as to what extent 
 
              his disability now would be related then to the injury 
 
              or aggravation?
 
         
 
              A.  I feel it is approximately ten per cent.
 
         
 
                 ....
 
         
 
              Q.  So as to the deep thrombosis, that is not included 
 
              with the ten per cent disability that you would relate 
 
              to the aggravation of the May injury?
 
         
 
              A.  It's a type of disability that I really can't --I 
 
              can't really put my finger on.  I just can't --I think 
 
              Dr. Waltke could better do that.
 
         
 
         (Jt. Ex. 13)
 

 
         
 
         
 
         
 
         SWIFT V. ALLIED CONSTRUCTION SERVICES, INC.
 
         Page   4
 
         
 
         
 
         
 
              Claimant saw Ann K. Agarwal, M.D., in April 1986 per the 
 
         defendant insurer's direction.  Dr. Agarwal reported in a letter 
 
         dated July 7, 1986:
 
         
 
              Following surgery he also had an episode of deep vein 
 
         thrombosis of the right knee.
 
         
 
            ....
 
         
 
              Although it is possible that the May 1985 injury 
 
              aggravates the knee symptoms, however, patient's 
 
              pathology of instability of the knee was a preexisting 
 
              problem and subsequent surgery was not related to this 
 
              injury of May 1985, instead it was done to correct the 
 
              instability which was preexistent.  I do not think any 
 
              permanent disability was added to an all ready unstable 
 
              knee.
 
         
 
         (Jt. Ex. 11)
 
         
 
              Claimant was evaluated by Eugene A. Waltke, M.D., a vascular 
 
         surgeon.  Dr. Waltke, in discussing an evaluation of claimant in 
 
         the non-invasive vascular lab, reported in a letter dated 
 
         September 11, 1986:  "He says he is asymptomatic at this time.  
 
         Because of his complete lack of symptoms at this time and the 
 
         present but rather remote possibility of future difficulties, I 
 
         would give him a 10% disability rate at this time.O
 
         
 
              The file in this matter shows that the Hearing Assignment 
 
         Order dated July 11, 1986 provided that a list of all witnesses 
 
         to be called at the hearing and a list of all proposed exhibits 
 
         was to be served on opposing parties no later than 30 days after 
 
         the order.  At the hearing on October 7, 1986 the claimant filed 
 
         a Description of Disputes which referred to a deposition of Dr. 
 
         Waltke (Claimant's Ex. 15).  Also on the day of the hearing, 
 
         defendants filed Defendants' Objections to Claimant's Exhibits 
 
         which indicated that Dr. Waltke's name first appeared on a 
 
         witness list served on defendants on August 18, 1986; that notice 
 
         of taking the deposition of Dr. Waltke was served on September 
 
         26, 1986; and that the deposition was taken on September 30, 
 
         1986.
 
         
 
              The file also showed that the arbitration decision was dated 
 
         November 3, 1986.  Notice of appeal by the defendants was filed 
 
         on November 20, 1986.  A letter dated November 25, 1986 and filed 
 
         December 1, 1986 from the defendants to the certified shorthand 
 
         reporter requested that a transcript of the hearing be prepared. 
 
          The transcript was filed on January 23, 1987.  A Certificate of 
 
         Filing Transcript indicating that the transcript was placed in 
 
         the mail on January 21, 1987 was filed on January 23, 1987.  
 
         Defendants filed their appeal brief on February 19, 1987 which 
 
         indicated that it had been served on February 12, 1987.  Claimant 
 
         filed an appeal brief on March 3, 1987 which indicated that it 
 
         had been served on March 2, 1987.  In a letter dated March 6, 
 
         1977 and filed March 10, 1987 the defendants waived the right to 
 
         file a reply brief.
 
         
 
                                  APPLICABLE LAW
 

 
         
 
         
 
         
 
         SWIFT V. ALLIED CONSTRUCTION SERVICES, INC.
 
         Page   5
 
         
 
         
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The first issue to be decided is whether the deputy erred in 
 
         allowing the deposition of Dr. Waltke (Cl. Ex. 15) into evidence. 
 
          The July 11, 1987 hearing assignment order specified that the 
 
         witness list and exhibits to be used at the hearing should be 
 
         served upon opposing parties within 30 days.  Dr. Waltke's name 
 
         was not on a timely witness list nor was his deposition timely 
 
         served.  A deputy industrial commissioner does not have the power 
 
         or authority to change another deputy's order.  If a party does 
 
         not agree with a deputy's order they have an opportunity to 
 
         appeal that decision.  The deputy erred in allowing the 
 
         deposition into evidence and it will not be considered in making 
 
         this decision.
 
         
 
              The second issue to be resolved is whether there is a causal 
 
         connection between claimant's disability and his work injury.  
 
         Prior to claimantOs fall he had been working full time at 
 
         construction work.  After his fail he was not able to do work he 
 
         had done before and the reason was that his knee had been injured 
 
         and that he had developed thrombosis as a result of a treating 
 
         physician treatment of the knee.  Dr. Dinsmore who was for both 
 
         of claimant's knee injuries clearly indicated that claimant's 
 
         fall aggravated a preexisting condition and that claimant's 
 
         condition was different after the fall at work.  Dr. Dinsmore's 
 
         opinions are given more weight than Dr. Agarwal who only saw 
 
         claimant one time after both injuries to the knee had occurred.  
 
         Claimant's physical condition and his work activities changed 
 
         substantially after his May 1965 injury.  Claimant has proved by 
 
         the greater weight of evidence that his injury of May 6, 1985 is 
 
         the cause of his disability.
 
         
 
              The third issue to be resolved is the nature and extent of 
 
         claimant's disability.  Dr. Dinsmore's testimony clearly 
 
         indicates that it was his opinion that claimant suffered ten 
 
         percent of his present "disability" from the May 1985 aggravation 
 
         of the lower right extremity.  The medical evidence indicates 
 
         agreement that the thrombosis related to the surgical procedure 
 
         and the immobilization following the surgical procedure for 
 
         claimant's knee injury.  The extent of the impairment related to 
 
         claimant's deep vein thrombosis remains to be decided.  Dr. 
 
         Dinsmore deferred to Dr. Waltke to determine the "disability" 
 
         resulting from the thrombosis.  Dr. Waltke stated that claimant 
 
         was asymptomatic but he would give claimant a ten percent 
 
         "disability" rate because of possible future difficulties.  There 
 
         is insufficient medical evidence to determine what claimant's 
 
         current impairment is as it relates to the thrombosis.  From the 
 
         evidence available it is impossible to tell if the thrombosis 
 
         increases the current rating of impairment of the lower right 
 
         extremity and to tell if the thrombosis impairs any other part of 
 
         claimant's body.  Furthermore, the undersigned cannot base an 
 
         opinion on mere speculation of what may or may not occur in the 
 
         future but must look at claimant's present condition.  It is more 
 
         important to consider claimant's present condition than possible 
 
         future difficulties.  Claimant has failed to prove that he has 
 

 
         
 
         
 
         
 
         SWIFT V. ALLIED CONSTRUCTION SERVICES, INC.
 
         Page   6
 
         
 
         
 
         any disability because of the thrombosis.  However, claimant has 
 
         proved by the greater weight of evidence that his work injury was 
 
         the cause of ten percent disability of the lower right 
 
         extremity.
 
         
 
              Claimant argues in his appeal brief that defendantsO appeal 
 
         should be dismissed for late filing of the transcript and 
 
         appellantsO brief.  The claimant notes that the transcript was 
 
         filed 61 days after the notice of appeal and that appellants' 
 
         brief was filed 22 days after the transcript was filed.  Claimant 
 
         argues that the Division of Industrial Services' rules provide 
 
         that the time periods for these filings are 30 days and 20 days 
 
         respectively.
 
         
 
              Claimant correctly notes that Division of Industrial 
 
         Services Rule 343-4.30 provides that a transcript is to be filed 
 
         within 30 days after the notice of appeal is flied.  In this case 
 
         the appeal was filed November 20, 1986, the request for the 
 
         transcript was filed on December 1, 1986 and the transcript was 
 
         filed on January 23, 1987.  There is no indication why the 
 
         transcript was not filed until January 23, 1987 but defendants 
 
         clearly requested the transcript within thirty days of the filing 
 
         of the notice of appeal.  The violation of rule 4.30 does not 
 
         warrant a dismissal of the appeal in this case.
 
         
 
              While claimant correctly noted the provisions of rule 4.30, 
 
         he did not correctly note and apply Division of Industrial 
 
         Services Subrule 343-4.28(l).  That subrule provides:
 
         
 
                 Appellant shall serve its brief within fifty days 
 
              after the date on which notice of appeal was filed, or 
 
              within twenty days after filing of the hearing 
 
              transcript, whichever date is later.  Appellee shall 
 
              serve its brief within twenty days after service of the 
 
              brief of appellant.  If appellant serves a reply brief, 
 
              it shall be done within ten days after service of 
 
              appellees brief. (Emphasis added)
 
         
 
         In this case the transcript was filed on January 23, 1987 and the 
 
         brief was served on February 12, 1987.  The brief was served 
 
         within 20 days of the filing of the transcript and the 
 
         requirements of subrule 4.28(l) have been met.  Claimant's 
 
         arguments that the appeal should be a dismissed are not 
 
         persuasive.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant injured his right knee at home in September 
 
         1984.
 
         
 
              2.  Claimant underwent an arthroscopy in November 1984 with 
 
         debridement of a torn anterior cruciate ligament and of a torn 
 
         medial meniscus.  Dr. Dinsmore advised claimant in March 1985 
 
         that claimant would probably need a Slocum procedure some day.
 
         
 
              3.  A Slocum procedure was not necessary in March 1985 as 
 
         claimant was able to function at work and otherwise.
 
         
 
              4.  Claimant fell down a flight of stairs in the course of 
 

 
         
 
         
 
         
 
         SWIFT V. ALLIED CONSTRUCTION SERVICES, INC.
 
         Page   7
 
         
 
         
 
         his employment on May 6, 1985.
 
         
 
              5.  Objective findings regarding claimant's right knee were 
 
         not significantly different from those prior to the May 6, 1985 
 
         injury, but claimant was unable to work subsequent to the 
 
         injury.
 
         
 
              6.  Claimant's right knee condition was aggravated by the 
 
         injury.
 
         
 
              7.  Claimant underwent a second arthroscopic examination and 
 
         a Slocum pes anserina transfer.
 
         
 
              8.  Claimant subsequently developed deep vein thrombosis as 
 
         a result of the procedure and resulting immobilization.
 
              
 
              9.  It is not possible to determine if claimant's deep vein 
 
         thrombosis has impaired his right lower extremity or any other 
 
         part of his body.
 
         
 
             10.  Claimant had a preexisting impairment of his right lower 
 
         extremity on account of his September 1984 injury.
 
         
 
             11.  Claimant has a 10 percent permanent partial impairment 
 
         of his right lower extremity as a result of his knee injury alone 
 
         without accounting for his deep vein thrombosis.
 
         
 
             12.  Claimant has no impairment of his right lower extremity 
 
         as a result of his deep vein thrombosis.
 

 
         
 
         
 
         
 
         SWIFT V. ALLIED CONSTRUCTION SERVICES, INC.
 
         Page   8
 
         
 
         
 
         
 
             13.  Claimant's healing period extended from June 7, 1985 to 
 
         September 8, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established that his injury of May 6, 1985 is 
 
         the cause of the disability to his right lower extremity on which 
 
         he now bases his claim.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from his injury of May 6, 1985 of ten percent of the 
 
         right lower extremity.
 
         
 
              Claimant is entitled to healing period benefits from June 7, 
 
         1985 to September 8, 1985.
 
         
 
              Defendants are entitled to a credit for benefits previously 
 
         paid with claimant entitled to payment of those weekly benefit 
 
         amounts he has been underpaid during those weeks in which he 
 
         received payments at the inappropriate rate.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay claimant permanent partial disability 
 
         benefits for twenty-two (22) weeks at the rate of three hundred 
 
         forty-four and 19/100 dollars ($344.19) per week with those 
 
         payments to commence on September 9, 1985.
 
         
 
              That defendants pay claimant healing period benefits from 
 
         June 7, 1985 to September 8, 1985 at the weekly rate of three 
 
         hundred forty-tour and 19/100 dollars ($344.19).
 
         
 
              That defendants receive credit for benefits already paid 
 
         claimant.
 
         
 
              That defendants pay claimant the amounts claimant has been 
 
         underpaid during those weeks he received benefits at the 
 
         inappropriate rate.
 
         
 
              That defendants pay accrued amounts in a lump sum.
 
         
 
              That defendants pay interest pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay costs including the costs of the 
 
         transcription of the hearing proceeding.
 
         
 
              That defendants file claim activity reports as required by 
 
         Division of industrial Services Rule 343-3.1(2).
 
         
 
         
 
              Signed and filed this 24th day of June, 1988.
 
         
 

 
         
 
         
 
         
 
         SWIFT V. ALLIED CONSTRUCTION SERVICES, INC.
 
         Page   9
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                DAVID E. LINQUIST
 
                                                INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Richard D. Crowl
 
         Attorney at Law
 
         201 First National Bank Bldg.
 
         P.O. Box 457
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. James E. Thorn
 
         Attorney at Law
 
         Fifth Floor Park Bldg.
 
         P.O. Box 398
 
         Council Bluffs, Iowa 51502-0398
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                    1108.50; 1803; 1803.1
 
                                                    2903; 2906
 
                                                    Filed June 24, 1988
 
                                                    David E. Linquist
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL L. SWIFT,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         ALLIED CONSTRUCTION SERVICES,            File No. 799010
 
         INC.,
 
                                                    A P P E A L
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         MARYLAND CASUALTY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1108.50
 
         
 
              Claimant had had knee surgery prior to his work injury which 
 
         also hurt his knee.  Claimant had been working full time at 
 
         construction work prior to his work injury.  The work injury 
 
         resulted in knee surgery to the same knee.  The treating 
 
         physician opined that claimant's work injury aggravated the 
 
         preexisting condition and claimant's condition was different 
 
         after the fall.  Thrombosis developed following treatment of the 
 
         knee injury.  The disability from the knee injury was causally 
 
         connected to the work injury.
 
         
 
         1603; 1803.1
 
         
 
              Claimant suffered permanent partial disability to his lower 
 
         right extremity (knee) because of the work injury.  There was 
 
         insufficient medical evidence to determine claimant's current 
 
         impairment as it relates to the thrombosis.  Claimant's 
 
         disability was determined on claimant's present condition not 
 
         what may or may not occur in the future regarding the thrombosis.  
 
         It was also impossible to tell from the evidence if the 
 
         thrombosis impairs any part of claimant's body other than the 
 
         lower right extremity.
 
         
 
         2903
 
         
 
                                                
 
                                                         
 
              A brief served within 20 days of the filing of the 
 
         transcript was timely and the requirements of subrule 4.28(l) 
 
         were met.
 
         
 
         2906
 
         
 
              A deposition of a witness which was not timely served and 
 
         whose name was not on a timely witness list was not allowed into 
 
         evidence.  The deposition which was excluded contained the 
 
         opinion that the thrombosis produced permanent partial impairment 
 
         in both lower extremities.
 
 
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KURT FENCHEL,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  799117
 
            RICK D. MILLER, d/b/a MILLER  :
 
            CONSTRUCTION,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY CO.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Kurt 
 
            Fenchel, claimant, against Rick D. Miller, d/b/a Miller 
 
            Construction, employer and United Fire and Casualty Company, 
 
            insurance carrier, defendants for benefits as the result of 
 
            an injury which occurred on July 3, 1985.  A hearing was 
 
            held at Cedar Rapids, Iowa, on                                        
 
            August 17, 1988, and the case was fully submitted at the 
 
            close of the hearing.  The record consists of the testimony 
 
            of Kurt Fenchel, claimant; Patrick Rhines, claimant's 
 
            friend; Bruce Fenchel, D.D.S., claimant's uncle; Douglas S. 
 
            Kennedy, claimant's friend; Jeffrey K. Schuchmann, 
 
            claimant's friend; Phyllis Fenchel, claimant's mother; Kathy 
 
            M. McNeal, claimant's sister; joint exhibits 1 through 7; 
 
            claimant's exhibits 1 through 3 and defendants' exhibit A.  
 
            The deputy ordered a transcript of the hearing.  Both 
 
            attorneys submitted outstanding briefs.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to the following matters at the 
 
            time of the hearing:
 
            
 
                 That an employer-employee relationship existed between 
 
            claimant and employer at the time of the injury.
 
            
 
                 That claimant sustained an injury on July 3, 1985, 
 
            which arose out of and in the course of employment with 
 
            employer.
 
            
 
                 That the injury was the cause of temporary and 
 
            permanent disability.
 
            
 
                 That claimant is entitled to temporary disability 
 
            benefits from July 3, 1985 to April 30, 1986; that these 
 
            benefits have been paid to claimant; and that temporary 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            disability benefits are no longer a disputed matter in this 
 
            case at this time.
 
            
 
                 That the commencement date for permanent partial 
 
            disability benefits, in the event such benefits are awarded, 
 
            is May 1, 1986.
 
            
 
                 That the rate of compensation, in the event of an award 
 
            of benefits, is $213.12 per week.
 
            
 
                 That claimant's entitlement to medical benefits has all 
 
            been or will be paid by defendants.
 
            
 
                 That defendants make no claim for credit for employee 
 
            nonoccupational group health plan benefits paid to claimant 
 
            prior to hearing.
 
            
 
                 That defendants are entitled to a credit for 50 weeks 
 
            of permanent partial disability benefits paid to claimant 
 
            prior to hearing at the rate of $213.12 per week in the 
 
            total amount of $10,656.  
 
            
 
                 That there are no bifurcated claims.
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the nature and extent of benefits to 
 
            which he is entitled.
 
            
 
                 This issue includes a determination of whether claimant 
 
            is entitled to permanent partial disability benefits for 
 
            scheduled member disability under Iowa Code section 
 
            85.34(2)"s" or whether claimant is entitled to industrial 
 
            disability for an injury to the body as a whole.
 
            
 
                 This issue includes the determination of whether 
 
            claimant is an odd-lot employee.
 
            
 
                 Whether claimant is entitled to vocational 
 
            rehabilitation benefits pursuant to Iowa Code section 85.70.
 
            
 
                 Whether claimant is entitled to penalty benefits under 
 
            Iowa Code section 86.13.
 
            
 
                 Whether claimant is entitled to certain costs.
 
            
 
                                        
 
            
 
                                        
 
            
 
                                 findings of fact
 
            
 
                                  type of injury
 
            
 
                  It is determined that claimant has sustained an 
 
            industrial disability to the body as a whole.
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 Claimant was severely injured in a very traumatic 
 
            accident when he fell approximately 18 feet from a 
 
            scaffolding to the ground below and suffered a compound 
 
            comminuted fracture of the proximal shaft of the left femur, 
 
            an irregular fracture across the mid-portion of the left 
 
            patella, and a fracture of the surgical neck of the left 
 
            humerus with proximal and lateral displacement with some 
 
            small comminuted fracture fragments at the fracture site.  A 
 
            significant amount of orthopedic hardware was required to 
 
            repair claimant's fractures to his left leg and left arm 
 
            (ex. 1, pp. 22, 23, 56 & 57).  The physical or anatomical 
 
            location of the fracture sites are in scheduled members, to 
 
            wit, the left arm and left leg; however, the disability 
 
            extends beyond the scheduled member at the left shoulder and 
 
            constitutes an injury to the body as a whole.  
 
            
 
                 Some frequently cited agency precedents to determine 
 
            this issue are as follows:
 
            
 
                 The right of a worker to receive compensation for 
 
            injuries sustained which arose out of and in the course of 
 
            employment is statutory. The statute conferring this right 
 
            can also fix the amount of compensation to be paid for 
 
            different specific injuries, and the employee is not 
 
            entitled to compensation except as provided by the statute.  
 
            Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member may, because of after 
 
            effects (or compensatory change), result in permanent 
 
            impairment of the body as a whole.  Such impairment may in 
 
            turn form the basis for a rating of industrial disability.  
 
            Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).  Soukup, 222 Iowa 272, 268 N.W. 598 (1936).
 
            
 
                 An injury to a scheduled member which, because of 
 
            after-effects (or compensatory change), creates impairment 
 
            to the body as a whole entitles claimant to industrial 
 
            disability.  Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961); Daily, 233 Iowa 758, 10 N.W.2d 569 
 
            (1943).
 
            
 
                 An injury is the producing cause; the disability, 
 
            however, is the result, and it is the result which is 
 
            compensated.  Barton, 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
            Dailey, 233 Iowa 758, 10 N.W.2d 569 (1943).
 
            
 
                 If a claimant contends he has industrial disability he 
 
            has the burden of proving his injury results in an ailment 
 
            extending beyond the scheduled loss.  Kellogg v. Shute and 
 
            Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 (1964).
 
            
 
                 In Soukup, an injury to the foot was determined to be a 
 
            scheduled member injury to be compensated according to the 
 
            schedule even though claimant might in fact be permanently 
 
            and totally disabled.
 
            
 
                 In Daily, a fracture of the surgical neck of the femur 
 
            which caused a tilting of the pelvis and a compensatory 
 
            curvature of the spine caused actual physical injury beyond 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            and outside of the scheduled area and claimant was entitled 
 
            to body as a whole benefits.  Claimant was determined to be 
 
            permanently and totally disabled from what originally began 
 
            as a scheduled member injury.
 
            
 
                 In Barton, an injury to the foot which caused a 
 
            circulatory ailment was determined to be an injury to the 
 
            body as a whole, and claimant was entitled to permanent and 
 
            total disability benefits.
 
            
 
                 In Kellogg, the supreme court reversed a deputy because 
 
            they searched the record and could not find evidence that 
 
            the fracture of the femur caused a permanent tilting of the 
 
            pelvis that the deputy relied upon in his finding of facts.  
 
            There was however, other evidence that the injury extended 
 
            beyond the scheduled member, and the district court used 
 
            some of this evidence to affirm the deputy, but the supreme 
 
            court reversed the district court because these findings 
 
            were not based upon findings of fact made by the deputy who 
 
            is the statutory finder of facts.
 
            
 
                 In Lauhoff Grain v. McIntosh, 395 N.W.2d 834 (Iowa 
 
            1986), the supreme court broadened the opportunity for hip 
 
            and shoulder injuries to be determined to be injuries to the 
 
            body as a whole.  In this case, a fractured femur just below 
 
            the hip joint resulted in a total hip replacement.  The 
 
            supreme court (1) looked with apparent approval upon a 
 
            certain citation from Larson; (2) noted that most other 
 
            jurisdictions had resolved hip and shoulder injuries as 
 
            whole body injuries and cited a long list of cases; (3) 
 
            commented that the worker compensation statutes should be 
 
            interpreted to benefits workers and their dependents; and 
 
            (4) stated that deference should be given to the 
 
            interpretation of statutes which are made by the responsible 
 
            administrative agency.  The cite from Larson is as follows 
 
            at page 839 of the Lauhoff decision:
 
            
 
                    [t]he great majority of modern decisions agree 
 
                 one was so high and so close to the hip, I feel sharp, 
 
            burning, stabbing sensations, pain in those areas." 
 
            (transcript pages 60 & 61).  Claimant said he could not 
 
            return to work for this employer when he was released by his 
 
            treating orthopedic surgeon, "Because I experienced a great 
 
            amount of pain and stiffness and soreness in my leg and 
 
            shoulder." (tr. p. 95).  When defense counsel asked claimant 
 
            what kind of problems he experienced, claimant replied, 
 
            "General fatigue, pain, stiffness, soreness, frequently have 
 
            to rest.  It's much more difficult now for me to do the 
 
            things that I used to do." (tr. pp. 134 & 135).  This deputy 
 
            interpreted claimant's complaints of stiffness and soreness 
 
            to be localized in his left shoulder and left hip and leg.  
 
            
 
                 Claimant testified in his deposition as follows:
 
            
 
                 Q.  And specifically what parts of your body are 
 
                 stiff?
 
            
 
                 A.  The areas that that were injured.
 
            
 
                 Q.  Well, why don't you indicate for me, you know, 
 
                 specifically where you have the problem with 
 
                 soreness and stiffness?
 
            
 
                 A.  In my shoulder, in my hip, and in my left leg.
 
            
 
            (exhibit 7, p. 40).
 
            
 
                 Claimant testified that he is unable to raise his left 
 
            arm above his shoulder or head (tr. p. 62).
 
            
 
                 The evidence in this case which causes the injury to be 
 
            determined to be an injury to the body as a whole is the 
 
            loss of range of motion in the left shoulder.  In this 
 
            respect, this case is quite similar to Fullerton v. 
 
            Caterpillar Tractor Co., IV Iowa Industrial Commissioner 
 
            Report 134, 135 (Appeal Decision 1984) except that 
 
            Fullerton's problem was in his right shoulder.  Fullerton 
 
            fractured his right ulna with extensive muscle damage when 
 
            an overhead engine fell on his right arm and caused 
 
            extensive muscle damage.  In that case, Fullerton's treating 
 
            physician orthopedic physician stated that claimant's most 
 
            serious limitation of motion was in the shoulder.  This 
 
            physician, John Sinning, M.D., stated, "Mr. Fullerton has a 
 
            problem of shoulder rotation going in 30 degrees compared to 
 
            80 or 90 on the other side.  External rotation 20 degrees 
 
            compared to 60 degrees.  Overhead elevation limited by 10 
 
            degrees." Id.  This loss of range of motion constituted 6 
 
            percent of Dr. Sinning's final impairment rating of 35 
 
            percent of the right upper extremity.  Claimant's 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            consultant, Jerome G. Bashara, M.D., assessed a total 
 
            permanency rating of 35 percent of the right upper extremity 
 
            involving impairment to the elbow, forearm, and shoulder 
 
            which converts to a 21 percent permanent partial physical 
 
            impairment of the body as a whole.  Id.  Industrial 
 
            Commissioner Robert C. Landess found: 
 
            
 
                 ...the record indicates that claimant's injury was 
 
                 determined by both Dr. Sinning and Dr. Bashara to 
 
                 involve functional impairment of the right 
 
                 shoulder.  Claimant was paid compensation benefits 
 
                 for the injury including his shoulder based on a 
 
                 35 percent functional impairment of his right 
 
                 extremity as a scheduled member.  A disability to 
 
                 the shoulder is a disability to the body as a 
 
                 whole.  Alm v. Morris Barick Cattle Co., 240 Iowa 
 
                 1174, 38 N.W.2d 161 (1949).  
 
            
 
            Fullerton v. Caterpillar Tractor Co., IV Iowa Industrial 
 
            Commissioner Report, 135 (Appeal Decision 1984)
 
            
 
                 In this case, William John Robb, M.D., an orthopedic 
 
            surgeon, examined claimant for defendants and reported on 
 
            July 3, 1986.  Some quotes from Dr. Robb's report are as 
 
            follows:
 
            
 
                 Kurt Fenchel was examined in my office on July 1, 
 
                 1986, in regard to residual complaints referable 
 
                 to his left shoulder, left hip and left knee for 
 
                 injuries incurred from a fall from a scaffolding 
 
                 on the 3rd of July, 1985.
 
            
 
                 ***
 
            
 
                 Presently he complains of soreness in the left 
 
                 shoulder if he turns over and sleeps on it.  There 
 
                 is stiffness in the morning, but after he 
 
                 exercises much of this subsides.  He does not feel 
 
                 that he has a range of motion or strength in the 
 
                 shoulder that he had previously.  He does not feel 
 
                 that there is any appreciable change in the 
 
                 symptomatology nor range of motion since December 
 
                 of 1985.
 
            
 
                 ***
 
            
 
                 On examination of the left shoulder, there is 
 
                 passive abduction to 160o, flexion to 160o, 
 
                 extension 40o, external rotation 45o, internal 
 
                 rotation 80o.  Circumferential measurement of 
 
                 muscles of the left arm, biceps 12 1/2 right, 12 
 
                 inches left.  Forearm 10 1/2 inches right, 10 1/4 
 
                 inches left.
 
            
 
            (exhibit 1, pages 119 and 120)
 
            
 
                 Michael Twomey, a licensed physical therapist who 
 
            treated and evaluated claimant, testified, "...normal 
 
            flexion is 180 degrees.  Normal abduction 180 degrees.  
 
            External rotation should be 90 degrees, and internal 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            rotation, 80 to 90 degrees." (ex. 4, p. 11).  When Twomey 
 
            first saw claimant on July 22, 1985, claimant's left 
 
            shoulder measured 90 degrees of flexion, 70 degrees of 
 
            internal rotation, 2 to 3 degrees of external rotation and 
 
            Twomey did not measure abduction so as to not disturb the 
 
            fracture (ex. 4, p. 6).  The therapist stated claimant 
 
            showed improvement on September 3, 1985; September 26, 1985; 
 
            October 1, 1985 and October 29, 1985; but he was still 
 
            showing a loss of range of motion (ex. 4, pp. 8-14).  Twomey 
 
            testified that when he measured claimant on the Cybex 
 
            machine on February 6, 1986, that claimant had an overall 
 
            strength deficit in his left shoulder of 50 to 55 percent of 
 
            normal (ex. 4, p. 23).  A second Cybex test was performed on 
 
            February 21, 1986 and claimant's shoulder strength was 
 
            surprisingly low (ex. 4, p. 24).  Twomey testified that 
 
            claimant's impairment was permanent (ex. 4, pp. 25-28).  
 
            
 
                 Hugh P. MacMenamin, M.D., claimant's treating 
 
            orthopedic surgeon, testified that claimant still had 
 
            weakness with external shoulder rotation on January 14, 1986 
 
            (ex. 3, p. 28).  The doctor said that the fracture could 
 
            produce some scaring and the fact that it was so close to 
 
            the joint itself could produce stiffness even though the 
 
            fracture did not go into the articular surface or the joint 
 
            surface (ex. 3, p. 58).  Nevertheless, he said it is in such 
 
            proximity to the joint itself that it has potential to lead 
 
            to some stiffness about the shoulder joint.  The doctor 
 
            testified that claimant did in fact complain about stiffness 
 
            on the last two or three examinations.  Eventually, the 
 
            doctor testified that he was sure there was some scar 
 
            formation from the injury and even some from the surgery.  
 
            At the time of this doctor's last examination on February 4, 
 
            1986, claimant could abduct 160 degrees with 180 degrees 
 
            being normal and forward flex 160 degrees with 180 degrees 
 
            being normal (ex. 3, p. 59).
 
            
 
                 Thus, it has been established that claimant sustained a 
 
            loss of range of motion in his left shoulder based upon the 
 
            reports of two orthopedic surgeons and one licensed physical 
 
            therapist.  The latter having performed two Cybex machine 
 
            examinations.  Dr. MacMenamin said, "The shoulder injury 
 
            represents 20% permanent physical impairment and loss of 
 
            physical function to the whole arm." (ex. 1, p. 95).  This 
 
            case then is analogous to the Fullerton case where 
 
            Commissioner Landess stated, "A disability to the shoulder 
 
            is a disability to the body as a whole...As claimant has an 
 
            impairment to the body as a whole, an industrial disability 
 
            has been sustained." (Fullerton, page 135).
 
            
 
                 Therefore, claimant has established that there is 
 
            objective evidence of injury beyond the scheduled member.  
 
            Roach v. Hubinger Co., file 500813, filed March 29, 1987; 
 
            Wagner v. Grow Mart, Inc., file 714982, filed March 26, 
 
            1987.
 
            
 
                 Therefore, it is determined here that since claimant 
 
            has sustained a loss of range of motion in his left 
 
            shoulder, has stiffness in his left shoulder joint, and 
 
            received an impairment rating for the left shoulder, then 
 
            this claimant too, has sustained an injury to the body as a 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            whole and is entitled to industrial disability.
 
            
 
                causal connection-entitlement-permanent disability
 
            
 
                 It is determined that the injury is the cause of 
 
            permanent disability, as stipulated to by the parties, and 
 
            that claimant has sustained a 28 percent industrial 
 
            disability to the body as a whole.
 
            
 
                 Dr. MacMenamin, the treating orthopedic physician, 
 
            determined that claimant sustained a 40 percent permanent 
 
            physical impairment and loss of physical function to the 
 
            lower left extremity and a 20 percent permanent physical 
 
            impairment and loss of physical function to the whole arm 
 
            (ex. 1, p. 95).  He said that the 40 percent rating of the 
 
            lower extremity converts to 16 percent of the whole person 
 
            and the 20 percent of the upper extremity converts to 12 
 
            percent of the whole person.  His final conclusion is, "This 
 
            amounts to 28% total impairment of both extremities to the 
 
            whole person." (ex. 1, p. 96).  When the Guides to the 
 
            Evaluation of Permanent Impairment, third edition, published 
 
            by the American Medical Association combine 16 percent and 
 
            12 percent at page 246, the result in 26 percent.  However, 
 
            Dr. MacMenamin stated he used the Orthopedic Surgeon's Guide 
 
            and this decision will not attempt to improve upon the 28 
 
            percent permanent partial impairment rating to the whole 
 
            body arrived at by Dr. MacMenamin (ex. 1, pp. 95-97).  On 
 
            July 21, 1986, Dr. MacMenamin stated, "Mr. Fenchel will be 
 
            able to walk and stand at work." (ex. 1, p. 97).  He did not 
 
            impose any permanent restrictions on claimant.  The 
 
            following dialogue transpired between defendants' counsel 
 
            and Dr. MacMenamin:
 
            
 
                 Q.  Okay.  Dr. MacMenamin, as of the time that you 
 
                 released Mr. Fenchel to return to work, I presume 
 
                 that although you expected further improvement 
 
                 from time to time, he had improved at least to the 
 
                 point where he was able to go back to his work as 
 
                 a carpenter at that time?
 
            
 
                 A.  Yes, I think I would have expected him to be 
 
                 able to return to work as a carpenter.  Perhaps 
 
                 climbing ladders or crawling into small spaces may 
 
                 have been difficult, certainly at first for him. 
 
            
 
                 Q.  And did you impose any restrictions whatsoever 
 
                 on his activities in connection with releasing him 
 
                 to return to work as a carpenter?
 
            
 
                 A.  Full capacity we allowed him.
 
            
 
            (exhibit 3, page 65)
 
            
 
                 Employer did not offer claimant a job as a carpenter 
 
            after he was released to return to work and claimant did not 
 
            apply with employer for a job as a carpenter after he was 
 
            released to return to work.  Claimant testified, "I resigned 
 
            from Miller Construction the day I was injured." (tr. p. 
 
            148).
 
            
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
                 Although several of claimant's relatives and friends 
 
            testified that he was a changed person after the injury and 
 
            seemed to be demoralized and depressed, no allowance is made 
 
            in this decision for any psychological, emotional or mental 
 
            condition because none of this testimony is corroborated by 
 
            any professional medical evidence.
 
            
 
                 It is determined that claimant is not an odd-lot 
 
            employee.  A worker becomes an odd-lot employee when an 
 
            injury makes the worker incapable of obtaining employment in 
 
            any well known branch of the labor market.  Guyton v. Irving 
 
            Jensen Co., 373 N.W.2d 101 (Iowa 1985).  An odd-lot worker 
 
            is thus totally disabled 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.  
 
            Id.; Lee v. Minneapolis Street Railway Co., 230 Minn 315, 
 
            320 41 N.W.2d 433, 436 (1950).  There is no objective 
 
            evidence that claimant is unable to perform any kind of 
 
            work.  Dr. MacMenamin, his treating orthopedic surgeon, 
 
            released him to return to carpentry and placed no other 
 
            restrictions upon him.  Claimant's inability to work is 
 
            based upon his own subjective individual interpretation of 
 
            his physical condition and is not supported by any medical 
 
            evidence of any kind.  Furthermore, in order to be an 
 
            odd-lot employee the disabled worker must make a bone fide 
 
            search to find employment in the area of residence.  In this 
 
            case, it was demonstrated that claimant only searched for 
 
            employment in order to draw unemployment compensation 
 
            benefits.  He only submitted the name of three prospective 
 
            employers on interrogatories claiming that he lost his 
 
            records on his other attempts.  Claimant testified, "Well, 
 
            I've read the job sections in the paper.  I've talked to 
 
            friends.  I'm registered with the Job Service office right 
 
            now in Manchester.  I've done about as much that I can do."  
 
            (tr. p. 212).  
 
            
 
                 Linda Sanford, an Iowa State Division of Rehabilitation 
 
            Education and Services employee, was extremely critical of 
 
            claimant's sincerity about obtaining employment (ex. 5).  
 
            Sanford could be quoted in some very critical comments, but 
 
            suffice to say that it is determined that claimant has not 
 
            made a bona fide search to find employment in the area of 
 
            his residence.  Guyton, 373 N.W.2d 101 (Iowa 1985); Emshoff 
 
            v. Petroleum Transportation Services, Inc., file 753723 
 
            (Appeal Decision March 31, 1987); Hingtgen v. Goodmann, file 
 
            737771 (Appeal Decision September 30, 1988); Collins v. 
 
            Friendship Village, Inc., file 679258 (Appeal Decision 
 
            October 31, 1988).
 
            
 
                 Based on claimant's young age of being in the mid-30's, 
 
            his high school and college education, his past employment 
 
            record, claimant's situation is in sharp contrast with 
 
            Guyton who was considered to be amoung the hard-core 
 
            unemployed.
 
            
 
                 Claimant, born September 17, 1953, was 32 years old at 
 
            the time of the injury and 35 years old at the time of the 
 
            hearing.  Most of claimant's past employments have been 
 
            carpentry related.  Claimant said he is foreclosed from 
 
            carpentry work; however, his treating physician said that he 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            could do it.  Furthermore, claimant's inability to be a 
 
            carpenter, even if it was true, which it was not proven to 
 
            be, would not make claimant an odd-lot employee as contended 
 
            by his counsel.
 
            
 
                 There is no indication by Dr. Robb of any permanent 
 
            restrictions or that claimant could not return to work as a 
 
            carpenter.  Dr. Robb estimated that claimant would suffer a 
 
            10 percent permanent impairment of function of the left 
 
            upper extremity and a 10 percent permanent impairment of 
 
            function of the left lower extremity (ex. 1, p. 121).  Ten 
 
            percent of the left upper extremity converts to 6 percent of 
 
            the body as a whole and 10 percent of the left lower 
 
            extremity converts to 4 percent of the body as a whole.  
 
            Guides to the Evaluation of Permanent Impairment, third 
 
            edition, table 3 on page 20 and table 43 on page 65).  Six 
 
            percent and 4 percent combine to 10 percent of the body as a 
 
            whole on the combined values chart at page 246.  Dr. Robb 
 
            did not state whether he used the AMA Guides, The Orthopedic 
 
            Surgeon's Guides, some other guides or no guides at all.  
 
            The fact that Dr. MacMenamin expected claimant to improve 
 
            after the doctor made his rating, does not permit defendants 
 
            to validly contend, argue, speculate, and conjecture that 
 
            Dr. Robb's lower later rating reflects this anticipated 
 
            improvement.  It is doubtful that claimant could have 
 
            improved this much in the short two and one-half month 
 
            period in between the two ratings by the simple application 
 
            of common sense (ex. 3, pp. 69 & 70).  Furthermore, an 
 
            evaluator's rating and method of rating is so peculiar to 
 
            the individualized  practices and techniques of the rater 
 
            that if defendants wanted to prove that claimant's rating 
 
            was less, they should have requested that he be evaluated 
 
            again by Dr. MacMenamin at later date.  Claimant offered to 
 
            be evaluated again, however, defendants  did not request a 
 
            subsequent evaluation by Dr. MacMenamin.  The rating of Dr. 
 
            MacMenamin as a treating physician of claimant for 
 
            approximately one year, who was responsible for the success 
 
            or failure of his treatment, is considered to be superior to 
 
            the rating of Dr. Robb, who only saw claimant briefly on one 
 
            occasion for the purposes of giving a rating for litigation 
 
            purposes only.  Dr. MacMenamin's rating is considered to be 
 
            the most reliable rating.  Rockwell Graphics Systems, Inc. 
 
            v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
            
 
                 With respect to education claimant is both a high 
 
            school graduate and a college graduate, receiving an art 
 
            degree from the University of Northern Iowa, but he has 
 
            never been able to find employment in the art field (tr. pp. 
 
            65 & 66).
 
            
 
                 Employer did not offer claimant any vocational 
 
            rehabilitation and claimant has not seriously sought out any 
 
            vocational rehabilitation on his own volition.  Claimant 
 
            contended that Sanford was supposed to contact him after 
 
            their meeting on September 17, 1987.  Sanford contended that 
 
            claimant was supposed to make an application if he wished 
 
            vocational rehabilitation.   Claimant did not seek 
 
            rehabilitation services again for approximately one year 
 
            until just shortly prior to the hearing and was still 
 
            unemployed at the time of the hearing.  
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            
 
                 An employee making a claim for industrial disability 
 
            will benefit by showing some attempt to find work.  Hild v. 
 
            Natkin & Co., I Iowa Industrial Commissioner Report 144 
 
            (Appeal Decision 1981); Beintema v. Sioux City Engineering 
 
            Co., II Iowa Industrial Commissioner Report 24 (1981); Cory 
 
            v. Northwestern States Portland Cement Company, Thirty-third 
 
            Biennial Report of the Industrial Commissioner 104 (1976).
 
            
 
                 Furthermore, since claimant has not seriously sought 
 
            any employment or vocational rehabilitation, his potential 
 
            in the labor market has not been tested and this makes it 
 
            more difficult to ascertain how much industrial disability 
 
            claimant has actually sustained.  Schofield v. Iowa Beef 
 
            Processors, Inc., II Iowa Industrial Commissioner Report 
 
            334, 336 (1981).  Employers are responsible for the 
 
            reduction in earning capacity caused by an injury.  They are 
 
            not responsible for a reduction in actual earnings because 
 
            the employee resists returning to work.  Williams v. 
 
            Firestone Tire and Rubber Co., III Iowa Industrial 
 
            Commissioner Report 279 (1982).
 
            
 
                 Wherefore (1) based on the foregoing considerations; 
 
            (2) and all of the factors used to determine industrial 
 
            disability, Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 
 
            3 State of Iowa Industrial Commissioner Decisions 654, 658 
 
            (Appeal Decision February 28, 1985) and Christensen v. 
 
            Hagen, Inc., vol. I, no. 3, State of Iowa Industrial 
 
            Commissioner Decisions 529 (Appeal Decision March 26, 1985); 
 
            and (3) applying agency expertise, [Iowa Administrative 
 
            Procedure Act 17A.14(5)]; it is determined that claimant has 
 
            sustained a 28 percent industrial disability to the body as 
 
            a whole and is entitled to 140 weeks of workers' 
 
            compensation permanent partial disability benefits.
 
            
 
            vocational rehabilitation benefits-Iowa code section 85.70
 
            
 
                 Claimant did not establish his entitlement to 
 
            vocational rehabilitation benefits.
 
            
 
                 The only requirement in the workers' compensation law 
 
            for an employer to provide vocational rehabilitation 
 
            benefits to an injured employee is found in Iowa Code 
 
            section 85.70.  This section requires an employer to pay an 
 
            employee $20 per week while an employee actively 
 
            participates in a vocational rehabilitation program 
 
            recognized by the State Board of Vocational Education for a 
 
            maximum period of 26 weeks.  There is no evidence that 
 
            claimant has ever presented employer with an application to 
 
            attend such a program.  Employers are not otherwise 
 
            obligated to provide vocational rehabilitation to injured 
 
            employees even though it has been common practice for the 
 
            industrial commissioner to consider the willingness of both 
 
            the employer and employee to engage in rehabilitation 
 
            programs designed to return the employee to active 
 
            employment as a factor in the determination of overall 
 
            industrial disability.  In this case, claimant has not 
 
            established a necessity for vocational rehabilitation 
 
            because Dr. MacMenamin stated that claimant could return to 
 
            work in his old occupation as a carpenter at full capacity.  
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            Furthermore, claimant made no follow-up for approximately 
 
            one year on his one encounter with a vocational 
 
            rehabilitation person from the State of Iowa when the 
 
            opportunity for vocational rehabilitation was possible.  
 
            Moreover, claimant has not presented any program he wants to 
 
            pursue recognized by the State Board of Vocational 
 
            Rehabilitation.
 
            
 
                 Wherefore, it is determined that claimant is not 
 
            entitled to an order for vocational rehabilitation benefits.
 
            
 
                     penalty benefits-iowa code section 86.13
 
            
 
                 First, it is determined that when claimant was injured 
 
            on July 3, 1985, and that the date of the first payment of 
 
            workers' compensation benefits is made on July 25, 1985, it 
 
            is not per se a delay in commencement of benefits without 
 
            reasonable or probable cause which would justify the award 
 
            of penalty benefits under Iowa Code section 86.13 unnumbered 
 
            paragraph 4.  At the same time, employers and insurance 
 
            carriers are reminded that workers' compensation benefits 
 
            are to begin on the eleventh day after the injury and 
 
            continue without interruption each week thereafter.  Iowa 
 
            Code section 85.30.  Although, defendants' first payment in 
 
            this case was not as prompt as it should have been, since it 
 
            was made on the twenty-second day after the injury, 
 
            nevertheless, claimant did not prove that the delay was 
 
            unreasonable or without probable cause.
 
            
 
                 Second, defendants did violate unnumbered paragraph two 
 
            of Iowa Code section 86.13 which states, "If commenced, the 
 
            payments shall be terminated only when the employee has 
 
            returned to work, or upon thirty days' notice stating the 
 
            reason for the termination and advising the employee of the 
 
            right to file a claim with the industrial commissioner."  
 
            Claimant testified that he was not notified of the 
 
            termination of benefits.  There is no evidence on the part 
 
            of defendants that a notice was made to claimant that his 
 
            benefits would be terminated as is required by the second 
 
            paragraph of section 86.13.
 
            
 
                 Prior to section 86.13, the Supreme Court of Iowa held 
 
            that workers' compensation benefits are a property right 
 
            that cannot be taken away without due process of law.  The 
 
            court said that workers' compensation benefits are protected 
 
            by the fourteenth amendment of the Constitution of the 
 
            United States of America.  The court defined the notice 
 
            requirements, most of which are now expressed in Iowa Code 
 
            section 86.13.  Auxier v. Woodward State Hospital School, 
 
            266 N.W.2d 139, 142, 143 (Iowa 1978).
 
            
 
                 The proper penalty for a violation of paragraph two has 
 
            been an open question.  The case of Sparks v. Herberger 
 
            Construction, IV Iowa Industrial Commissioner Report 343 
 
            (1983) held that claimant's benefits should be continued 
 
            until the mandates of Iowa Code section 86.13 have been 
 
            complied with.  In, Lawyer and Higgs, Iowa Workers' 
 
            Compensation--Law and Practice, section 13-7, it states, 
 
            "Failure to provide the `Auxier Notice' usually results in 
 
            an additional thirty days of benefits in a contested case 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            proceeding before the industrial commissioner."  In Himshoot 
 
            v. Montezuma Mfg, file numbers 738235 & 672778, filed June 
 
            13, 1986, this deputy decided that claimant was entitled to 
 
            only 30 days additional temporary disability benefits.  On 
 
            review, the district court determined that claimant was 
 
            entitled to temporary disability benefits until she filed 
 
            her petition for review-reopening.
 
            
 
                 On review, the court of appeals, in an unpublished 
 
            decision, pointed out that the supreme court did not 
 
            consider for what additional duration of time benefits 
 
            should be awarded when the Auxier notice is not provided.  
 
            The court of appeals found that petitioner was entitled to 
 
            notice prior to the termination of benefits, that due 
 
            process required that claimant be informed of the right to 
 
            submit evidence to dispute the termination and the right to 
 
            petition for review-reopening.  The court of appeals then 
 
            determined that claimant was no longer prejudiced by lack of 
 
            notice at the time she filed her petition for 
 
            review-reopening and stated that the additional healing 
 
            period benefits should run until that date.  Himshoot v. 
 
            Montezuma Mfg, (Iowa Appellate, February 22, 1990).
 
            
 
                 Official notice is taken of the papers filed by 
 
            defendants in the industrial commissioner's file.  Iowa 
 
            Administrative Procedure Act 17A.14(4).  The forms 2A filed 
 
            by defendants indicate that claimant was paid temporary 
 
            disability benefits through April 30, 1986.  The file 
 
            further indicates that claimant was not being paid benefits 
 
            on June 4, 1986 because the insurance carrier had not yet 
 
            received a final permanent partial disability rating, but 
 
            that they were beginning a 5 percent permanent partial 
 
            disability for an injury to the body as a whole on June 4, 
 
            1986.  
 
            
 
                 Wherefore, it is determined by this decision that 
 
            claimant was entitled to additional temporary disability 
 
            benefits from the time defendants terminated benefits on 
 
            April 30, 1986 until they commenced benefits again on June 
 
            4, 1986, a period of five weeks as near as it can be 
 
            determined from the available evidence.  Claimant supplied 
 
            no evidence on how long he should be entitled to Auxier 
 
            benefits.  Claimant had not returned to work during this 
 
            period of time, nor had he returned to work at the time of 
 
            the hearing on August 17, 1988.  Claimant was no longer 
 
            prejudiced by the lack of notice after workers' compensation 
 
            benefits were resumed on June 4, 1986 and continued 
 
            eventually for some 50 weeks based upon the 10 percent body 
 
            as a whole rating of Dr. Robb.
 
            
 
                 Defendant insurance carrier was quite dilatory in 
 
            paying certain medical benefits incurred by claimant for 
 
            authorized medical care without any satisfactory explanation 
 
            of why the payment of these medical bills was not made in a 
 
            timely manner.  These bills were turned over to a collection 
 
            agency which caused unnecessary stress on claimant without 
 
            any justification given by the insurance carrier.  
 
            Nevertheless, it has been decided by the Supreme Court of 
 
            Iowa that neither Iowa Code section 86.13, relative to 
 
            penalty benefits, or Iowa Code section 85.30, relative to 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            interest, applies to the late payment of medical expenses.  
 
            The court found that these statutes by their expressed terms 
 
            apply to weekly compensation payments of industrial 
 
            disability and do not support an allowance for interest or 
 
            penalties for the late payment of medical expenses.  Klein 
 
            v. Furnas Elec. Co., 384 N.W.2d 370 (Iowa 1986).  The court 
 
            also determined that Iowa Code section 535.2, which deals 
 
            with interest rates, did not empower the industrial 
 
            commissioner to add interest on to an award of medical 
 
            expenses.
 
            
 
                 Wherefore, it is determined that claimant is not 
 
            entitled to penalty payments or interest payments on the 
 
            late paid medical expenses, but claimant is entitled to 
 
            continuation of the temporary disability benefits from April 
 
            30, 1986 to June 4, 1986, a period of five weeks.
 
            
 
                                      costs
 
            
 
                 Claimant has requested the taxation of several costs, 
 
            some of which are allowable, and some of which are not.  
 
            Claimant itemized 13 specific costs in paragraph D, taxation 
 
            of costs, of the prehearing report by an itemized supplement 
 
            attached to the prehearing report.
 
            
 
                 Claimant is not entitled to the following costs and 
 
            claimant is not entitled to recover these costs:
 
            
 
            1.  Payment to St. Luke's by claimant for records
 
                on 8-28-85                                      $ 41.25
 
            2.  Payment to St. Luke's by claimant for records
 
                on 10-7-86                                         7.25
 
            4.  The portion of the doctor's fee for evidentiary
 
                deposition billed 2-19-87 of Dr. MacMenamin that 
 
                exceeds $150 ($600 minus $150 = $450).           450.00
 
            8.  Copy of deposition of Kurt Fenchel billed 4-30-87 65.75
 
            9.  Mileage for travel to Dubuque for Sanford 
 
                interview and later deposition (2 trips) 280 miles
 
                at 25 cents/mile                                  70.00
 
            11. Costs by vocational rehabilitation (Sanford)       7.50
 
            12. Photographs 8 at $5 each                          40.00
 
            13. Costs of obtaining tax returns for defendants     27.00
 
            
 
                 All of these costs are disallowed because they are 
 
            considered to be trial preparation expenses and cannot be 
 
            identified as an allowable cost under Rule 343 IAC 4.33.
 
            
 
                 The following costs are allowed to claimant and 
 
            defendants are to reimburse claimant for these costs:
 
            
 
            3.  Certified mail paid 8-1-86                      $  1.67
 
            4.  Doctor's fee for evidentiary deposition billed
 
                2-19-87 of Dr. MacMenamin                        150.00
 
            5.  Court reporter's charge for Dr. MacMenamin 
 
                billed 2-28-87                                   212.00
 
            6.  Medical report by Dr. MacMenamin billed 5-13-86   50.00
 
            7.  Court reporter's charge for deposition of Michael
 
                Twomey, LPT billed 4-23-87                       110.00
 
            
 
                                               TOTAL                  
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
            $523.67
 
            
 
            
 
                 Item 10 on claimant's list labeled "Deposition cost of 
 
            Sanford" in the amount of $168 is not accompanied by an 
 
            itemized statement, therefore, it cannot be determined 
 
            whether it is the witness fee or the court reporter's fee 
 
            nor can it be determined whether the amount has been paid or 
 
            not.  If claimant proves payment to defendants of this $168 
 
            and it is an expert witness fee then claimant is entitled to 
 
            $150 of this $168 item.  If this is the court reporter's fee 
 
            for Sanford and claimant proves the payment this expense, 
 
            then claimant is entitled to recover the entire $168 from 
 
            defendants.
 
            
 
                 Wherefore, it is determined that $523.67 are allowable 
 
            costs for items 3 through 7 on claimant's list of itemized 
 
            costs.
 
            
 
                                        
 
            
 
                                        
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made:
 
            
 
                 That claimant sustained an injury to the body as a 
 
            whole because the injury to the left shoulder caused a loss 
 
            of range of motion in the shoulder and a disability to the 
 
            shoulder is a disability to the body as a whole.  Kellogg v. 
 
            Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W.2d 667 
 
            (1964); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 
 
            N.W.2d 660 (1961); Alm v. Morris Barick Cattle Co., 240 Iowa 
 
            1174, 38 N.W.2d 161 (1949); Dailey v. Pooley Lumber Co., 233 
 
            Iowa 758, 10 N.W.2d 569 (1943).
 
            
 
                 That the injury was the cause of permanent disability 
 
            as stipulated to by the parties.  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 28 percent industrial 
 
            disability to the body as a whole.  He as not proven any 
 
            industrial disability beyond his impairment rating.  
 
            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 is entitled to 140 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)"u".
 
            
 
                 That claimant is not entitled to penalty benefits or 
 
            interest for the authorized medical expenses which 
 
            defendants failed to pay in a timely manner.  Iowa Code 
 
            sections 85.30; 86.13(4) and Klein v. Furnas Electric Co., 
 
            384 N.W.2d 370, 375 (Iowa 1986).  
 
            
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
                 That claimant is entitled to the continuation of 
 
            temporary disability benefits from April 30, 1986, when they 
 
            were discontinued without 30 days notice to claimant, until 
 
            June 4, 1986, at which time the industrial commissioner's 
 
            file shows that defendants said they would continue workers' 
 
            compensation benefits to claimant which is a period of five 
 
            weeks.  Iowa Code section 86.13 unnumbered paragraph two, 
 
            second sentence; Himschoot v. Montezuma Mfg., file number 
 
            672778 & 738235 (Appeal Decision April 15, 1988); the 
 
            unpublished decision of the Court of Appeals dated February 
 
            2, 1990 is not citable as precedent, but the determination 
 
            of the court is influential in showing that claimant's 
 
            entitlement to additional benefits is more than simply 30 
 
            days of benefits, but should run until a time that claimant 
 
            no longer suffered any prejudice from the termination of 
 
            benefits without notice.
 
            
 
                 That claimant did not sustain the burden of proof by a 
 
            preponderance of the evidence that he is an odd-lot 
 
            employee.  Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 
 
            1985).
 
            
 
                 That claimant did not sustained the burden of proof by 
 
            a preponderance of the evidence that he sustained a 
 
            compensable psychological, emotional or mental injury for 
 
            the reason that claimant introduced no expert medical 
 
            testimony on this point.  
 
            
 
                 That claimant is entitled to $530.67 in costs as shown 
 
            above.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant five (5) weeks of 
 
            additional healing period benefits at the stipulated rate of 
 
            two hundred thirteen and 12/100 dollars ($213.12) per week 
 
            for the period from May 1, 1986 through June 4, 1986, in the 
 
            total amount of one thousand sixty-five and 60/100 dollars 
 
            ($1,065.60) commencing on May 1, 1986.
 
            
 
                 That defendants pay to claimant one hundred forty (140) 
 
            weeks of permanent partial disability benefits at the 
 
            stipulated rate of two hundred thirteen and 12/100 dollars 
 
            ($213.12) per week in the total amount of twenty-nine 
 
            thousand eight hundred thirty-six and 80/100 dollars 
 
            ($29,836.80) commencing on June 5, 1986.
 
            
 
                 That defendants are entitled to a credit for fifty (50) 
 
            weeks of permanent partial disability benefits paid to 
 
            claimant at the rate of two hundred thirteen and 12/100 
 
            dollars ($213.12) per week in the total amount of ten 
 
            thousand six hundred fifty-six dollars ($10,656) as 
 
            stipulated to by the parties in the prehearing report.
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 

 
            
 
            Page  17
 
            
 
            
 
            
 
            
 
            
 
                 That the costs of this action, including the cost of 
 
            the transcript, are charged to defendants pursuant to Rule 
 
            343 IAC 4.33, and that these costs are to specifically 
 
            include the five hundred twenty-three and 67/100 dollars 
 
            ($523.67) determined above to be owing to claimant by 
 
            defendants.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of December, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Benjamin W. Blackstock
 
            Attorney at Law
 
            STE 201, Cedar Plaza
 
            385 Collins Road N.E.
 

 
            
 
            Page  18
 
            
 
            
 
            
 
            
 
            Cedar Rapids, Iowa  52402
 
            
 
            Mr. Matthew Brandes
 
            Attorney at Law
 
            1200 Merchants National Bank Bldg
 
            Cedar Rapids, Iowa  52401
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          1803.1; 51803; 54100; 3102; 
 
                                          4000.10; 4000.20; 3800; 2709
 
                                          Filed December 18, 1990
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            KURT FENCHEL,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  799117
 
            RICK D. MILLER, d/b/a MILLER  :
 
            CONSTRUCTION,                 :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED FIRE & CASUALTY CO.,   :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803.10
 
            It was determined that claimant sustained an injury to the 
 
            body as a whole.  Even though the extremely severe fractures 
 
            were in the femur and humerus (and also the patella), there 
 
            was clear proof that the humerus extended beyond the 
 
            scheduled member into the body as a whole because of 
 
            limitation of motion of the shoulder.  The hip also was 
 
            stiff which could justify a body as a whole injury but the 
 
            decision is based on the shoulder about which there is no 
 
            question.  Several precedents reviewed.
 
            
 
            51803; 51400
 
            
 
            Claimant awarded industrial disability in the same 
 
            percentage as his impairment rating (converted and combined 
 
            ratings) of 28 percent of the body as a whole because the 
 
            doctor released him to return to his former employment 
 
            without restrictions.  Claimant's inability to work was 
 
            entirely subjective.  There was no objective evidence to 
 
            support it.  Claimant had not sought any work after the 
 
            injury except that required to obtain unemployment 
 
            compensation and to read the newspapers, ask friends, and 
 
            put his name in at job service.  For the same reasons it was 
 
            determined claimant was not an odd-lot employee.  The 
 
            testimony of numerous friends and relatives concerning 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            psychological, emotional, or mental injury was not 
 
            persuasive in absence of professional medical evidence.
 
            
 
            3102
 
            Claimant was not entitled to an order for vocational 
 
            rehabilitation benefits under Section 85.70 because claimant 
 
            did not prove that he could not work due to the injury and 
 
            he did not present a state recognized program.  The evidence 
 
            showed claimant avoided vocational rehabilitation when it 
 
            was offered.  It was determined that employer had no duty to 
 
            provide vocational rehabilitation other than that provided 
 
            for in Section 85.70 even though an employer's offer or a 
 
            claimant's pursuit of vocational rehabilitation may 
 
            sometimes be used as an industrial disability factor in some 
 
            cases.
 
            
 
            4000.10
 
            Defendants terminated healing period benefits and were 
 
            ordered to pay continued healing period benefits from the 
 
            date they were terminated until defendants began paying 
 
            permanent partial disability benefits (a period of five 
 
            weeks) at which time claimant ceased to be prejudiced by the 
 
            termination by not receiving an Auxier notice.  This is a 
 
            developing area where the supreme court has not stated what 
 
            the proper penalty is for not giving an Auxier notice but 
 
            the court of appeals gave some guidance in a recent 
 
            unpublished decision.
 
            
 
            4000.20; 3800
 
            Defendants were not unreasonable by starting temporary 
 
            disability benefits on the twenty-second day after the 
 
            injury even though the statute calls for 11 days without 
 
            some showing that it was unreasonable or without probable 
 
            cause.  Defendants were not liable for penalty benefits 
 
            (Section 86.13) or interest (Section 85.30) on medical 
 
            benefits even though defendants were quite delinquent 
 
            without any stated justification or excuse and even though 
 
            it caused great stress on claimant from collection agencies.
 
            
 
            2709
 
            Several costs were presented.  Some were allowed.  Some 
 
            disallowed.  Reasons stated for allowance or disallowance.