BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         CLAUDE F. LEASE, JR.,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                              File No. 799318
 
         HAWKEYE CHEMICAL,
 
                                           A R B I T R A T I O N
 
              Employer,
 
                                              D E C I S I O N
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Claude F. Lease, Jr., against his employer, Hawkeye Chemical, and 
 
         its insurance carrier, National Union Fire Insurance Company, to 
 
         recover benefits as a result of an injury sustained on July 6, 
 
         1985.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner at Davenport, Iowa on July 22, 
 
         1987.  A first report of injury was filed on July 22, 1985.  The 
 
         parties stipulated at hearing that claimant has already been paid 
 
         76 4/7 weeks of temporary total disability.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant, of Connie Lease, of Patricia Whit, of Nick McQuistion, 
 
         of Nancy Nordeen, of Lester Schofield, of Wayne Schaffer, of 
 
         James Fay, of Donald Lambert, of Julie Bush, of Sara Misiewicz 
 
         and of Ruth Ann Keiler as well as of exhibits 1 through 13 
 
         offered jointly; of exhibits I through XII and XIII offered by 
 
         claimant; and of exhibits A through K offered by defendants.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the pre-hearing report, the parties stipulated 
 
         that claimants rate of compensation in the event of an award is 
 
         $269.72.  They stipulated that claimant has never returned to 
 
         work for this employer and that claimant did receive an injury 
 
         arising out of and in the course of his employment on July 6, 
 
         1985 which was causally related to claimed temporary total 
 
         disability.  The issues remaining for resolution are: 
 
         
 
              1.  Whether a causal relationship exists between the injury 
 
         and claimed permanent disability; and,
 
         
 
              2.  Whether claimant is entitled to benefits and the nature 
 
         and extent of any benefit entitlement, including whether 
 
         defendants are entitled to a credit for overpayment of temporary 
 
         total disability benefits from April, 1986, when defendants 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE   2
 
         
 
         
 
         allege claimant returned to other employment, until December 1986 
 
         and whether claimant is an odd-lot worker under the Guyton 
 
         doctrine.
 
         
 
              The parties further stipulated that all letters introduced 
 
         were sent by mail properly addressed to the correct address on 
 
         the letters and that all were received by the party to whom they 
 
         were addressed.
 
         
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant completed high school and was 38 years old at time 
 
         of hearing.  He described himself as having been a "B" through 
 
         "D" student.  Claimant has had military training as a 
 
         noncommissioned officer, having once achieved the rank of 
 
         Specialist Fifth Class as well as having been a heavy equipment 
 
         operator, specializing in road construction and maintenance for 
 
         the military.  He described himself as a certified demolition 
 
         expert.  Claimant has also taken a five-hour, junior college 
 
         course in blueprint reading.  He has worked as an assistant 
 
         produce manager in a grocery store, a sheet metal worker, a wood 
 
         worker, a punch press operator, a drill press operator and has 
 
         also worked in welding, brazing, plumbing and electrical work. 
 
         fie reported that his electrical work has consisted of installing 
 
         ceiling fans and light fixtures.  Claimant denied he had done 
 
         such activities since his injury and stated that all such 
 
         activities had required lifting of greater than 20 pounds.  
 
         Claimant reported that he had completed two hours of duty in 
 
         Vietnam.  He indicated he was injured on two different occasions, 
 
         with the second injury resulting from an explosion of a large 
 
         chemical plant in an area of hostile fire.  Apparently, a number 
 
         of individuals in claimants command, as well as Vietnamese 
 
         civilians, were killed in that incident.  Mental health reports 
 
         indicate that claimant felt some responsibility for the inability 
 
         to prevent the explosion.  Claimant testified that he is a 
 
         recovering alcoholic who, after drinking extensively from 1969 
 
         until 1981, has not drunk since treatment in 1981.
 
         
 
              Claimant began work at Hawkeye Chemical in 1979 and worked 
 
         until his injury on July 6, 1985.  Claimant described his work as 
 
         manual labor involving twisting and lifting of up to 30 pounds.  
 
         He reported he did so without difficulty.  Claimant states that, 
 
         in July, 1985, he was earning approximately  $10.00 per hour with 
 
         a gross weekly wage of approximately $600.00, including 
 
         overtime.
 
         
 
              Claimant was injured when the building in which he was 
 
         working at the chemical plant exploded.  Apparently, at least one 
 
         person was killed in the explosion.  Claimant reported that he 
 
         was thrown approximately 20-25 feet and that, when he first 
 
         became aware following the explosion, he initially saw a mangled 
 
         foot.  Claimant stated that his back and left shoulder hit a wall 
 
         and that he then fell to the ground.  Claimant testified that he 
 
         had hallucinations with Vietnam flashbacks subsequent to his 
 
         injury.  Mental health reports in evidence confirm that claimant 
 
         was treated for post-traumatic stress disorder as well as for 
 
         anxiety subsequent to the injury.  Claimant's left cheek was 
 
         injured.  Claimant's left zomata was reanchored subsequent to his 
 
         injury.  Claimant had lacerations to his head and left shoulder.  
 
         Apparently, he had bruising and back strain which subsequently 
 
         resolved.  Claimant reported that glass was imbedded in his skull 
 
         and his shoulder during the explosion and that such continues to 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE   3
 
         
 
         
 
         work its way out, sometimes requiring surgical removal.  Medical 
 
         records in evidence confirm such.  Claimant reported he had a 
 
         concussion following the injury with severe confusion, blurred 
 
         vision and blackouts.  He indicated that he has now 
 
         satisfactorily recovered from such.  He reported light 
 
         sensitivity for approximately a year following the injury, but 
 
         stated he has now recovered from such.  Claimant's medical 
 
         records do not reflect any permanent injury to his eyes or vision 
 
         on account of the explosion.  Claimant reported he has ringing in 
 
         his ears and difficulty with high-pitched tones as described in 
 
         his audiogram.  An audiogram of December, 1984 indicates that 
 
         claimant complained of ringing of the ears and showed a similar 
 
         loss of hearing.
 
         
 
              Claimant reported that he underwent physical therapy for his 
 
         shoulder consisting of whirlpool treatments, heat treatments, 
 
         Cybex treatments, range of motion exercises, weight lifting and 
 
         swimming as well as deep water exercises at the Y. He reported 
 
         that he lifted free weights of never more than five pounds and 
 
         that he continued, as of time of hearing, to swim six to eight 
 
         hours per week at the local YWCA.  Claimant testified that he 
 
         does an underwater breast stroke, an Australian crawl and a side 
 
         stroke.  He denied that he does a back stroke "much." Claimant 
 
         reported that he continues to have constant aching in his left 
 
         shoulder muscles and a decrease in range of motion in the left 
 
         arm and shoulder, especially in a cold environment.  Claimant 
 
         stated that shoulder stiffness produces tightening of the neck 
 
         muscles which then produces headaches.  Claimant reported that he 
 
         must warm up with heat before lifting or it "hurts like hell" the 
 
         next day.  Claimant denied that he could bring his left hand 
 
         behind his head or to his center back.  He reported he could not 
 
         extend his arm when his arm [or shoulder] was stiff.
 
         
 
              Claimant reported that, despite his emotional concerns 
 
         regarding returning to the area in which the explosion occurred, 
 
         he was willing to return to Hawkeye Chemical, if work could be 
 
         provided for him within restrictions imposed by John M. O'Shea, 
 
         M.D.  Claimant described those as no left arm lifting; no right 
 
         arm lifting of greater than 20 pounds; and, no stretching or 
 
         reaching.  Claimant reported that James Fay, Human Resources 
 
         Manager at Hawkeye Chemical, refused to release him for work with 
 
         such restrictions when claimant gave Mr. Fay a letter of Dr. 
 
         O'Shea outlining such restrictions on or about December 15, 1986.  
 
         Claimant testified that he has sought employment with 
 
         approximately 150 employers since December, 1986.  He agreed that 
 
         he had not applied for employment by registering at Job Service 
 
         nor had he sought state or other vocational rehabilitation 
 
         services, however.  Claimant stated that, in March, 1987, he took 
 
         over his wife's Quad Cities Times newscarrier district manager 
 
         position.  He agreed he had earlier helped his wife with her two 
 
         Quad Cities Times paper routes.  He characterized the routes as 
 
         having been in his wifes name with employment checks addressed to 
 
         his wife.  Claimant agreed that he had collected on the routes 
 
         and had assisted his wife in working the routes once she acquired 
 
         the second route in August, 1986.  Claimant reported that his 
 
         wife and her helper did all the heavy lifting involved, such as 
 
         putting paper bundles in the car.  Claimant stated that, as 
 
         district manager, he earned $3.50 per hour with a gross weekly 
 
         wage of $150.00.  He reported that the job required little heavy 
 
         lifting until he was required to take in vandalized newspaper 
 
         boxes.  He reported that such weighed from 75-100 pounds and that 
 
         he quit the district manager job rather than continue to attempt 
 
         to deliver such boxes.  As district manager, claimant had 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE   4
 
         
 
         
 
         collected Quad Cities Times monies from local carriers, local 
 
         merchants and newspaper boxes.  He had also done bookkeeping 
 
         consisting of reporting and crediting accounts and had been 
 
         responsible for circulation and promotion of the newspaper as 
 
         well as supervising individual carriers.
 
         
 
              Claimant's wife has opened an ice cream shop and restaurant. 
 
          Claimant reported that the shop grossed between $200-$300 per 
 
         week as of time of hearing and was then netting $100 per week.  
 
         Claimant reported he does the ordering, advertising and bookwork 
 
         for the ice cream shop.  He also does advertising and promotion 
 
         for a bike trail group on a voluntary basis.  He reported that 
 
         that includes writing press releases and contacting the media.  
 
         Claimant indicated he has applied for the job of manager of that 
 
         trail and thinks he has a pretty good chance of getting the job. 
 
          
 
         He reported it would pay $5.00 per hour with 40-60 hours of work 
 
         per week.  Claimant projected that his wife's ice cream job would 
 
         clear $500-$600 per week within six months.  He reported that the 
 
         shop has met all daily and weekly production goals set as of time 
 
         of hearing.  Claimant indicated he has a potential opportunity to 
 
         manage the mall in which the ice cream shop is located.  He 
 
         reported that that job would involve rent collection, supervision 
 
         of major repairs and advertising the mall.  Claimant felt he 
 
         could do such work.
 
         
 
              Claimant opined he could not work at Hawkeye because he 
 
         would be unable to climb ladders, change 55-gallon oil drums or 
 
         carry weights of at least 10-15 pounds as required.  Claimant 
 
         testified that others had lifted all heavy items involved in the 
 
         Leases' four moves subsequent to his injury.  Claimant agreed 
 
         that he has driven to Minneapolis and back, but reported that he 
 
         took frequent stops and that his wife assisted with the driving.
 
         
 
              Claimant's original military discharge was a general 
 
         military discharge for the good of the service.  It was 
 
         subsequently upgraded to a general discharge.
 
         
 
              Claimant apparently had a thumb injury while employed at 
 
         Hawkeye Chemical for which he was on light-duty work only for 
 
         approximately a year and a half.
 
         
 
              Claimant reported that he saw Xerxes R. Colah, M.D., at the 
 
         insurer's direction.  Claimant described Dr. Colah as belligerent 
 
         towards claimant and his wife.  The employer advised claimant 
 
         that Dr. Colah, an orthopaedic surgeon, was the authorized 
 
         treating physician and that further care from Dr. O'Shea, a 
 
         family practitioner, was not authorized.  After seeing Dr. Colah 
 
         on two occasions, claimant refused to return to Dr. Colah.  
 
         Claimant reported he has not seen Dr. O'Shea since December, 
 
         1986, but that he self-treats his shoulder with swimming at the 
 
         Y.  Claimant expressed his opinion that his shoulder condition 
 
         has not improved since January, 1987.
 
         
 
              Claimant testified that he "traded" an employer-provided 
 
         Schwinn Airdyne bicycle for a Y membership.  Correspondence in 
 
         the record reflects that claimant's counsel was directed to 
 
         advise claimant that the Schwinn Airdyne bicycle was to be 
 
         returned to the insurance carrier when claimant no longer needed 
 
         the bike for his physical rehabilitation.  Claimant testified 
 
         that he felt justified in "trading" the bike since he had, at 
 
         times, received workers' compensation checks and mileage checks 
 
         on an untimely basis.
 
         
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE   5
 
         
 
         
 
              Connie Lease, claimants wife of nine years, substantiates 
 
         claimant's testimony regarding his restrictions on life 
 
         activities subsequent to his injury.  She reported that she 
 
         accompanied claimant to his examinations with Dr. Colah and 
 
         substantiated claimants claim that Dr. Colah had mistreated 
 
         claimant.  Mrs. Lease denied that her ice cream shop could 
 
         potentially net between $500-$600 per week.  She agreed that 
 
         claimant had assisted her on her Quad Cities paper route, but 
 
         denied that claimant had been a Quad Cities Times employee until 
 
         March, 1987.
 
         
 
              Patricia Whit, a beautician whose shop is in the same mall 
 
         as Mrs. Lease's ice cream shop and who has known claimant for 
 
         eight years, reported that claimant is unable to carry on fitting 
 
         activities or lawn or car maintenance work, all of which he had 
 
         done prior to his injury.
 
         
 
              Nick McQuistion reported that he has known claimant for 
 
         approximately one year, but had not known claimant prior to his 
 
         injury.  He reported that he assists claimant with lifting, 
 
         moving and carrying.  Mr. McQuistion reported that he and three 
 
         other individuals had all done the heavy lifting involved in 
 
         claimant's last move.  Mr. McQuistion reported that he does heavy 
 
         work in the ice cream shop and stated that he has never seen 
 
         claimant move more than a metal folding chair.  McQuistion 
 
         reported he is a friend of the Leases' and is not paid for the 
 
         work he does for them.
 
         
 
              Nancy Nordeen reported that she has known claimant and his 
 
         wife for approximately four years.  She testified she had worked 
 
         with the couple on the Quad Cities Times paper routes.  She 
 
         indicated that claimant's wife was the Quad Cities Times carrier 
 
         for the Leases' routes, but that she, claimant and his wife all 
 
         worked their routes together with Mrs. Lease and Ms. Nordeen 
 
         taking opposite sides of the street when Mrs. Lease was available 
 
         to work the route.  Ms. Nordeen testified that, if Mrs. Lease 
 
         were not available to work the routes, she did both sides of the 
 
         street, unless there was an easy access, in which case claimant, 
 
         who worked with her, was able to do the easy access route.  Ms. 
 
         Nordeen testified that she and Mrs. Lease did all bundle lifting.  
 
         She reported that she helped the Leases lift during three of 
 
         their household moves and that, in each move, "men" did the 
 
         lifting.  Ms. Nordeen characterized claimant as sore after 
 
         lifting during the last move and after lifting paper boxes.
 
         
 
              Lester Schofield, a supervisor at Hawkeye Chemical for the 
 
         last 23 years, testified that he was responsible for claimant's 
 
         work area and familiar with claimants job work responsibilities 
 
         as of July 6, 1985.  He reported that claimant was a chemical 
 
         operator who operates and monitored equipment in his building.  
 
         He reported that the operator supervised shutdown and startup, 
 
         took readings, took pressures, took temperature flows and made 
 
         minor adjustments to electrical load with such activities 
 
         comprising less than 50% of the job.  Mr. Schofield reported that 
 
         "housekeeping" comprised approximately 70-80% of claimant's job.  
 
         He described "housekeeping" as cleaning oil spills, ousting, 
 
         sweeping, picking up debris and painting in the work area.  
 
         Schofield reported that there are six operators in the control 
 
         room with each assigned an area of responsibility which 
 
         alternates daily.  An operator needs to.carry 15-pound cans of 
 
         oil for the compressors and, approximately three or four times 
 
         weekly, 55-gallon oil drums must be changed.  The oil drum 
 
         changes are spread over three shifts with one shift responsible 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE   6
 
         
 
         
 
         for the change at least once or twice per week.  Two operators 
 
         can work on changing the oil drum together and an operator could 
 
         always ask a second operator for help in changing the drum.  
 
         Schofield reported that the clean and steamline hose would weigh 
 
         greater than 20 pounds if carried, but that it is possible to 
 
         drag the hose one-handed and not carry it.  The hose can be 
 
         hooked up with both hands and weighs no more than a couple of 
 
         pounds.  Schofield characterized the job as involving no 
 
         above-head lifting.  He reported that it was possible to climb 
 
         the ladder one-handed, although climbing two-handed would be a 
 
         better safety practice.  Schofield characterized claimant as 
 
         doing satisfactory work when "there."  He did not believe he 
 
         could currently rearrange employees to find work for claimant.  
 
         He opined that it would create problems to have other persons do 
 
         part of claimant's job, although he believed it was possible for 
 
         claimant to do most of his job within Dr. OSheas restrictions, 
 
         although such was a management decision.
 
         
 
              Wayne Schaffer described himself as a contractor for the 
 
         Quad Cities Times who delivers Sunday morning papers to 
 
         claimant's area for carrier delivery.  Mr. Schaffer stated that 
 
         he must take newspapers off his delivery truck for newspaper 
 
         carriers.  He testified that claimant had unloaded paper bundles 
 
         from the truck's tailgate on occasion.  Claimant unloaded ten or 
 
         more bundles, each weighing about 20-25 pounds with the heaviest 
 
         being about 40 pounds.  Schaffer reported that claimant never 
 
         complained of physical problems while doing such.  He reported 
 
         that claimant had also picked up papers at the delivery site, 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE   7
 
         
 
         
 
         Styles Drug Store, on approximately 10-15 occasions.  Schaffer 
 
         testified that claimant then lifted up to 14 bundles and placed 
 
         them in his car or van.  Claimant was at times accompanied by 
 
         another woman while doing such.  Schaffer stated that at times 
 
         claimant picked up the bundles and at times the woman did so.  
 
         Schaffer reported that, on three to five occasions, claimant was 
 
         working alone.  Schaffer reported that he saw claimant doing 
 
         newspaper pickup from April or May, 1986 to Spring, 1987.
 
         
 
              James Fay, Human Resources Manager for Hawkeye Chemical for 
 
         the last 17 years, testified that he was unaware of any time 
 
         where Hawkeye had terminated an employee as a result of an 
 
         on-the-job injury.  Fay stated that, after October 16, 1986, he 
 
         contacted claimant regarding claimant's work status and that 
 
         claimant stated he would not return to work until either claimant 
 
         or claimant's doctor released him to return to work.  Fay 
 
         reported claimant did not agree that he had no disability or that 
 
         his injury was no longer compensable as he had been advised in an 
 
         Auxier letter of October, 1986.  Mr. Fay reported that Hawkeye 
 
         Chemical relied upon the opinions of Drs. Colah and Campbell that 
 
         claimant had no permanent physical impairment on account of his 
 
         injury and that claimant had no psychiatric diagnosis or 
 
         impairment on account of his injury and was therefore willing to 
 
         allow a work return with a written work release slip.  Fay 
 
         reported that claimant was placed on a 30-day leave of absence in 
 
         December, 1986 and on an indefinite leave of absence in January, 
 
         1987.  Fay expressed his opinion that, when seen, claimant did 
 
         not indicate a willingness to return to work.  He opined that 
 
         Hawkeye Chemical would probably be willing to let claimant try 
 
         work and see how it goes.  Claimant's area is now on layoff and, 
 
         it claimant had been releases for work as of the time of hearing, 
 
         he would have been recalled only following the layoff.  While 
 
         receiving workers' compensation benefits, claimant also received 
 
         a company bonus of 80% of his wage, tax free.  Fay could not 
 
         recall claimant bringing him a copy of Dr. O'Shea's restrictions.  
 
         Fay agreed that a Mr. Freeman, Vice-President of Manufacturing, 
 
         would make the ultimate decision regarding rehire of claimant and 
 
         that Mr. Fay had not discussed the matter with Mr. Freeman as of 
 
         the time of hearing.
 
         
 
              Donald Lambert is both the credit manager for Hawkeye 
 
         Chemical and the treasurer of the Hawkeye Chemical Credit Union.  
 
         Mr. Lambert testified that he took claimant to small claims court 
 
         in November, 1986 because claimant was behind on a credit union 
 
         loan.  Lambert reported that claimant testified in small claims 
 
         court that he was not paying the loan because he was "mad" at 
 
         Hawkeye Chemical as he had not received workers' compensation and 
 
         medical benefits checks on time.  Lambert indicated that the loan 
 
         was 240 days past due when he took claimant to court and that he 
 
         did not feel that either the workers' compensation checks or the 
 
         medical benefits checks were that overdue.  Lambert stated that 
 
         he knew the Hawkeye supplemental bonus checks were mailed to 
 
         claimant on a weekly basis.
 
         
 
              Wayne Schaffer described himself as a contractor for the 
 
         Quad Cities Times who delivers Sunday morning papers to 
 
         claimant's area for carrier delivery.  Dr. Schaffer stated that 
 
         he must take newspapers off his delivery truck for newspaper 
 
         carriers.  He testified that claimant had unloaded paper bundles 
 
         from the truck's tailgate on occasion.  Claimant unloaded ten or 
 
         more bundles, each weighing about 20-25 pounds with the heaviest 
 
         being about 40 pounds.  Schaffer reported that claimant never 
 
         complained of physical problems while doing such.  He reported 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE   8
 
         
 
         
 
         that claimant had also picked up papers at the delivery site, 
 
         Styles Drug Store, on approximately 10-15 occasions.  Schaffer 
 
         testified that claimant then picked up up to 14 bundles and 
 
         placed them in his car or van.  Claimant was at times accompanied 
 
         by another woman while doing such.  Schaffer stated that at times 
 
         claimant picked up the bundles and at times the woman did so. 
 
         Schaffer reported that, on three to five occasions, claimant was 
 
         working alone.  Schaffer reported that he saw claimant doing 
 
         newspaper pickup from April or May, 1986 to spring, 1987.
 
         
 
              Julie Bush worked as a cleaning lady at Gateway Apartments 
 
         from May 12, 1986 until March 12, 1987.  Claimant and his wife 
 
         resided at the Gateway Apartments from February to October, 1986. 
 
          Ms. Bush initially worked six hours per day from 7:30 a.m. until 
 
         10:30 a.m. and from 1:30 p.m. until 4:30 p.m.  When she was 
 
         injured in December, 1986, she reduced her hours to three per 
 
         day.  She reported that she met claimant at the apartments and 
 
         that she had seen claimant raise his arm above shoulder level 
 
         while hanging and adjusting patio door curtains.  She stated that 
 
         claimant then had his arms above his head with his ears close to 
 
         his elbow and his feet on the floor and was smiling.  The patio 
 
         doors are approximately seven feet high.  Ms. Bush reported that 
 
         she also saw claimant raising his arms above his head while 
 
         sitting in a recliner at the apartment swimming pool with his 
 
         hands grasped behind his head.  She reported she had seen 
 
         claimant with his hands above his head while doing a front 
 
         swimming stroke as well as while diving into the swimming pool.  
 
         She also reported she had seen claimant with his hands above his 
 
         head while working in a stretched-out position on his car with 
 
         the hood up.  Bush reported she had seen claimant lift a bed 
 
         frame at an apartment rummage sale and he had done so without any 
 
         complaints or signs of discomfort.  She reported having seen 
 
         claimant collect money for the Quad Cities Times in May, 1986.
 
         
 
              Sara Misiewicz reported that she has resided in the Gateway 
 
         Apartments in apartment #6 since August, 1984.  She stated that 
 
         claimant lived in a second floor apartment in her building from 
 
         April to July, 1986 and that she saw claimant approximately three 
 
         times per week.  Ms. Misiewicz reported that claimant had lifted 
 
         the frame of a twin bed at a garage sale.  She characterized the 
 
         frame as an older, almost cast-like frame weighing approximately 
 
         40 pounds.  Claimant, she testified, had to lift the frame across 
 
         and above a two-foot cardboard box.  She testified that she saw 
 
         no signs of pain or discomfort in claimant approximately two 
 
         hours after lifting the bed frame.  Ms. Misiewicz reported that 
 
         she had helped claimant "skim" the swarming pool using a nine and 
 
         one-half foot pole with an attached basket weighing approximately 
 
         20 pounds as well as experiencing water resistance while in the 
 
         pool.  She reported that claimant had used both hands extended to 
 
         skim the pool which was approximately 20 feet wide.  She reported 
 
         that claimant had skimmed the pool for approximately 10 minutes 
 
         on separate occasions without showing signs of problems on any 
 
         occasion.  Ms. Misiewicz reported that claimant had told her she 
 
         could use the Schwinn Airdyne bicycle whenever she wished.  She 
 
         reported claimant stated he was going to "screw" the insurance 
 
         company on account of his Hawkeye Chemical injury.  Ms. Misiewicz 
 
         stated that claimant "lots of times" said he could not use his 
 
         left arm, but that she had seen him doing things that he said he 
 
         could not do, such as lifting the arm above the shoulder, lifting 
 
         heavy items and swimming.
 
         
 
              Ruth Ann Keiler has managed the Gateway Apartments for 
 
         approximately four years.  She reported that claimant moved into 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE   9
 
         
 
         
 
         the apartments in February, 1986 taking a two-bedroom apartment, 
 
         subsequently moved into a three-bedroom apartment and finally, in 
 
         July, moved into a one-bedroom apartment.  She reported the 
 
         Leases left the apartments in October, 1986.  Apparently, the 
 
         October, 1986 check for rent never cleared the bank and the 
 
         remainder of the Leases' security deposit was never paid.  Keiler 
 
         reported she talked with claimant and his wife several times per 
 
         day.  She testified that claimant would sit at the pool with his 
 
         hands behind his head.  She testified that claimant installed 
 
         ceiling fans in two of his apartments as well as having installed 
 
         many blinds in his own as well as other apartments.  She 
 
         characterized the apartment walls as approximately eight and 
 
         one-half to nine feet high with windows placed one and one-half 
 
         to two feet from the ceiling.  Keiler testified that she had seen 
 
         claimant unload tables from a truck bed through the tailgate.  
 
         She characterized the tables as weighing from 85-100 pounds.  She 
 
         states that claimant held on to two feet of the tailgate with 
 
         five tables resting on it for approximately two or three minutes 
 
         with no signs of pain or discomfort.  She reported that two hands 
 
         were needed to raise the tailgate and the tables and that 
 
         claimant pulled the tables from the truck end while others 
 
         carried the tables into the apartment.  Keiler stated that she 
 
         had seen claimant intermittently over the next several days and 
 
         that claimant was "fine."  Keiler stated that claimant had built 
 
         a balcony flower box approximately six feet long and from 
 
         one-by-fours.  She indicated that claimant needed to get into the 
 
         apartment garages to get the equipment, supplies and tools needed 
 
         for the project.  She reported that, to get into the garage, one 
 
         would need to lift a six-foot garage door by placing both hands 
 
         under the door and pushing the door over the head with one's arms 
 
         extended.  She reported that she did not see claimant do this 
 
         action, but that claimant did come to her and get the garage door 
 
         key and return the key after having completed the flower boxes.  
 
         She reported that claimant carpeted his apartment deck.  She 
 
         reported that such would require putting down plywood or presses 
 
         board and nailing.  Keiler stated that the Schwinn Airdyne had 
 
         been in her apartment and that she had used it from August 1, 
 
         1986 to approximately October 15, 1986.  Keiler reported that 
 
         claimant told her to put as many miles on the bike as she liked 
 
         since they would probably "need a picture of" the miles for 
 
         court.  Keiler reported that claimant had collected for the Quad 
 
         Cities Times from April to July, 1986.  She reported that 
 
         claimant and his spouse had told her that each had routes and 
 
         that each delivered papers.  Keiler reported that she did not 
 
         believe that claimant and his wife were "truthful."
 
         
 
              The balance of the oral evidence, including claimant's 
 
         rebuttal testimony, has been reviewed and considered.
 
         
 
              Dr. Colah testified by way of his deposition taken April 23, 
 
         1987.  Dr. Colah is board-eligible in orthopaedics.  The doctor 
 
         initially evaluated claimant on July 28, 1986.  Claimant then had 
 
         vague point tenderness over the supraspinatus and pectoral 
 
         anterior, but an overall shoulder evaluation was clinically 
 
         within normal limits.  The doctor stated that a discrepancy 
 
         existed between claimant's sitting and his lying straight leg 
 
         raises, but that there were no definitive objective findings as 
 
         regards claimant's back.  He characterized the discrepancy 
 
         between the two straight leg raising tests as suggesting that one 
 
         of the tests was not accurate.  The doctor ordered Cybex 
 
         evaluation and an arthrogram of claimant's left shoulder.  The 
 
         doctor again evaluated claimant on August 28, 1986 and reported 
 
         that claimant could then abduct his shoulder from 0 to 90 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE  10
 
         
 
         
 
         degrees, but had subjective pain complaints beyond 90 degrees.  
 
         An arthrogram was performed on August 29, 1986.  Dr. Colah 
 
         indicated that the arthrogram showed no evidence to suggest 
 
         either a partial or a complete tear of the rotator cuff.  Colah 
 
         reported that claimants Cybex evaluation graph patterns did not 
 
         suggest pain response at a particular spot during range of motion 
 
         testing and, hence, did not coincide with claimant's subjective 
 
         pain symptoms.  He reported that strength evaluations sometimes 
 
         showed an inconsistent Cybex pattern suggesting that claimant was 
 
         not making a maximum effort.  After reviewing the medical records 
 
         supplied him, as well as the results of various tests performed, 
 
         and after observing claimant's left shoulder, the doctor was 
 
         unable to document any specific, consistent symptom complex 
 
         pattern nor was he able to document consistent objective findings 
 
         which would assist in making a definitive anatomical diagnosis 
 
         pertaining to claimant's shoulder.  The doctor reported that 
 
         claimant did not show apprehension when his shoulder was abducted 
 
         to 90 degrees as would be expected had claimant an unstable 
 
         shoulder.  He reported that, when evaluated, claimant had normal 
 
         shoulder contours in his left shoulder and had no sensory 
 
         deficits in his left arm or shoulder.  Reflexes were within 
 
         normal limits.
 
         
 
              Dr. Colah explained that range of motion is possible in 
 
         spite of scarring, but that severe scarring could inhibit range 
 
         of motion.  He did not believe that claimant had scarring to such 
 
         a degree as it would inhibit claimant's range of motion.  Dr. 
 
         Colah did not believe, on the basis of his evaluation, that 
 
         claimant had myositis in his left shoulder or in the musculature 
 
         surrounding that area.  He reported that, with myositis, which 
 
         signifies an inflammation of the muscles, there would be diffuse 
 
         pain and no tenderness at a specific point or trigger area.  He 
 
         also reported that, with myositis, pain would be present with 
 
         passive stretching of the muscles through a range of notion and 
 
         the individual would be unable to actively contract the muscles 
 
         without pain.  He reported claimant was able to do both of those 
 
         activities.
 
         
 
              Dr. Colah opined that it was very unlikely that a Cybex test 
 
         would cause a hernia or would produce a muscle strain.
 
         
 
              Dr. Colah reported that, under the AMA guidelines for 
 
         evaluation of permanent impairment, claimant had no physical 
 
         findings documenting a physical impairment as claimant has either 
 
         functional or full range of motion and no impairment of his 
 
         strength in the left shoulder.  Dr. Colah stated that, on the 
 
         basis of his evaluation, he could not recommend work restrictions 
 
         for claimant and that, on the basis of the records the doctor had 
 
         reviewed, he could see no musculoskeletal reason for claimant to 
 
         not work.  Dr. Colah was unaware of any medical literature or 
 
         school of thought which supported the notion that, if a person 
 
         can lift with only one arm, such is likely to strain his back.
 
         
 
              Dr. Colah opined that, on the.basis of the results of 
 
         Orthotron exercise studies of March 11, 1986 and January 2, 1986, 
 
         claimant could lift 25 pounds with his left arm and could also 
 
         reach with his left arm.  He opined that, if an individual can 
 
         swim with his left arm, he can also reach with his left arm in 
 
         that, it the individual swam with classical strokes, he would be 
 
         expected to take his shoulder through a full range of motion, 
 
         which would be resisted motion.  The doctor characterized it as 
 
         unlikely that any activity which claimant did with his left 
 
         shoulder was going to aggravate problems due to the injury of 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE  11
 
         
 
         
 
         July 6, 1985.
 
         
 
              The doctor stated it would be reasonable to expect that a 
 
         [physician] who devotes his attention, his study and his practice 
 
         to a limited area to be more conversant [as regards that area] 
 
         than one who was devoted to a larger field of practice.
 
         
 
              Dr. Colah indicated that claimant presented an aggressive, 
 
         hostile manner and made a scene even before examination when he 
 
         first evaluated claimant.  Dr. Colah felt it was reasonable for a 
 
         physician who was unable to effectively cure a patient in a 
 
         certain time to direct the patient to another source for care.  
 
         Dr. Colah reported he would recommend a work hardening program 
 
         for claimant as of this time, given the length of time that 
 
         claimant has not worked.
 
         
 
              John M. O'Shea, M.D., testified by way of his deposition 
 
         taken April 23, 1987.  The doctor is board certified and board 
 
         recertified in family practice.  Dr. O'Shea reported that he 
 
         first saw claimant on October 18, 1985 and last saw him on 
 
         December 8, 1986.  During the interim, the doctor saw claimant on 
 
         22 occasions on account of the July 6, 1985 injury and related 
 
         conditions.  The doctor's final diagnosis of claimant's condition 
 
         was trauma to the left shoulder with scar tissue and myositis 
 
         involving the left shoulder and resulting in decreased range of 
 
         motion of the left shoulder.  The doctor reported that he treated 
 
         claimant with anti-inflammatory analgesics to decrease the pain 
 
         and inflammation in the shoulder as well as with physical therapy 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE  12
 
         
 
         
 
         including heat treatments, range of motion exercises and 
 
         swimming.  Throughout the course of treatment until December 8, 
 
         1986, claimant continued to have decreased range of motion in his 
 
         left shoulder, although the doctor believes claimant's range of 
 
         motion improved during treatment.  Dr. O'Shea reported that, as 
 
         of December 8, 1986, claimant was able, on forward elevation, to 
 
         go up to 105 degrees; go up to 45 degrees on backward elevation; 
 
         abduct to 90 degrees and adduct to 30 degrees.  Internal rotation 
 
         was 35 degrees and external rotation was 95 degrees.  The doctor 
 
         characterized those ranges of motion as improved by approximately 
 
         50% over those of claimant when he was first seen in October, 
 
         1985.  Dr O'Shea opined that claimants range of motion had now 
 
         improved as far as it would.  He opined that, under the AMA 
 
         guides, claimant has a whole person impairment of 7.5 percent on 
 
         account of his shoulder condition.  The doctor did not believe 
 
         that claimant had atrophy in the left shoulder when he last 
 
         examined his shoulder muscles.  He also did not feel that 
 
         claimant had a permanent loss of strength in the left shoulder. 
 
         he reported claimant's main problem was pain in the left 
 
         shoulder.  The doctor felt that claimant was honest, truthful and 
 
         a non-malingerer.  Dr. O'Shea opined that, as of December 8, 
 
         1986, claimant's back was normal.
 
         
 
              Dr. O'Shea explained that he felt claimant could not lift 
 
         over 20 pounds with his right arm because, with his history of an 
 
         injured back with probable scar tissue, claimant would be at a 
 
         high risk for recurrent back pain and problems if he were not 
 
         careful of the amount of weight he lifted.  Dr. O'Shea stated 
 
         that he restricted claimant to no lifting with his left arm and 
 
         that, with all lifting performed by his right arm, it would tend 
 
         to put a strain on the right side of his back.  Therefore, the 
 
         restriction of lifting no more than 20 pounds with the right arm 
 
         was required to protect claimant's back.  The doctor explained 
 
         that claimants injury in his left shoulder had resulted in scar 
 
         tissue forming in the muscles and soft tissue around the 
 
         shoulder, that, therefore, claimant's shoulder was permanently at 
 
         high risk for inflammation myositis and that lifting would 
 
         exacerbate or tend to aggravate the inflammation and scarring in 
 
         the shoulder.  Dr. O'Shea opined that claimant could not return 
 
         to a job that required him to do any type of heavy lifting in his 
 
         shoulders.  He reported that claimant had told him his job with 
 
         Hawkeye Chemical involved lifting and working with equipment 
 
         where he had to turn valves and working machinery and that he had 
 
         advised claimant to not return to that job.
 
         
 
              Dr. O'Shea reported it was possible that, during a Cybex 
 
         evaluation, if claimant were not performing the test properly, 
 
         claimant could have strained muscles in the right lower quadrant 
 
         of his abdomen where he had tenderness following the test.  He 
 
         opined that any other exertion from his upper body could have 
 
         produced the same injury.  He reported the usual course for a 
 
         muscle strain is for it to resolve within six to eight weeks.  
 
         Dr. O'Shea reported that, while he felt claimant was capable of 
 
         doing lifting following his injury, he was concerned that lifting 
 
         would aggravate his shoulder condition and, perhaps, his back 
 
         condition and cause exacerbation of his inflammation and pain.  
 
         He believed that, if claimant did lifting of more than the doctor 
 
         prescribed, eventually claimants shoulder would flare up and he 
 
         would have a great deal of pain with perhaps increased scarring 
 
         and further permanent damage to his shoulder.  The doctor 
 
         reported he had told claimant such, but he had no opinion as to 
 
         whether it would make sense for claimant to go ahead and do 
 
         lifting anyway.  The doctor characterized myositis as an 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE  13
 
         
 
         
 
         intermittent condition which often arises from scar tissue 
 
         forming after an injury to a muscle.  He indicated it may not 
 
         always be present from the time of the injury, but may flare up 
 
         when it becomes inflamed.  The doctor reported it is possible for 
 
         a person to have a torn muscle that heals with scar tissue and 
 
         not have symptoms on account of the muscle and scar tissue.
 
         
 
             Dr. O'Shea opined that, as of May 8, 1986, it was medically 
 
         indicated that significant improvement from claimant's work 
 
         injury was not anticipated.
 
         
 
              The doctor agreed that, ordinarily the greater the 
 
         complexity  of a case, the greater the reason to consult a 
 
         medical specialist in the area of the patient's problems.  He 
 
         agreed he is not a specialist in orthopaedic surgery.
 
         
 
              The doctor opined that the physician-patient relationship 
 
         requires mutual trust, understanding and respect of the patient 
 
         for the doctor as well as respect of the doctor for the patient. 
 
          He reported that, if these conditions are not met, the patient 
 
         will receive no benefit from the physician-patient relationship. 
 
          The doctor reported that, after claimant was released from his 
 
         care on December 8, 1986, he felt claimant required continued 
 
         care for ms left shoulder pain and that the doctor intended to 
 
         continue to direct that care by prescribing anti-inflammatory 
 
         medication and physical therapy as necessary and by advising 
 
         claimant on activities and exercises which may be beneficial to 
 
         the shoulder.  The doctor characterized as correct, however, a 
 
         clinical note of his of March 26, 1986 which stated:
 
         
 
              I think physical therapy has reached its maximum 
 
              benefit as far as professional physical therapy is 
 
              concerned.
 
         
 
              On November 19, 1985, William R. Meyer, M.D., prescribed a 
 
         stationary bike for claimant to help him in his physical therapy 
 
         to recover from severe muscle contusion acquired in the explosion 
 
         at Hawkeye Chemical.
 
         
 
              The Leases' Individual Income Tax Return for 1984 indicates 
 
         that claimant was employed that year while his wife was working 
 
         as a housewife.  Wages, salary and tips were reported as 
 
         $25,512.00.
 
         
 
              On November 3, 1986, Patrick G. Campbell, M.D., opined that 
 
         claimant did not suffer from depression, stress disorder, organic 
 
         brain disorder, anxiety disorder or any other mental disorder or 
 
         impairment.  He reported there was no psychiatric impairment and 
 
         no psychiatric diagnosis and did not recommend psychiatric 
 
         treatment.  On December 2, 1986, Patrick Lennon, M.S.W., who had 
 
         worked with claimant in individual and group counseling, opined 
 
         that Dr. Campbell's diagnosis could very well be accurate as 
 
         claimant had responded very well to counseling for post-traumatic 
 
         stress disorder with acute relapse and adjustment disorder with 
 
         anxious mood and because claimant and his spouse had talked about 
 
         whether anything more could be done in the counseling process and 
 
         it became clear that claimant was more concerned with getting 
 
         "some kind of settlement from Hawkeye Chemical rather than being 
 
         focused on his original concerns."
 
         
 
              A surveillance report of October 15, 1986 reports claimant 
 
         having been seen moving a number of heavier weight items from his 
 
         apartment into a van.  Video tapes of claimant's activities were 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE  14
 
         
 
         
 
         also in evidence.
 
         
 
              On March 25, 1986, Bruce J. Gantz, M.D., of the Department 
 
         of Otolaryngology at the University of Iowa Hospitals and 
 
         Clinics, opines that, after reviewing information concerning 
 
         claimant, it appeared claimant's hearing loss was present prior 
 
         to the chemical plant explosion in which claimant was involved in 
 
         July, 1985.  He reported that there did not appear to be any 
 
         progression in the hearing loss and that he therefore reversed 
 
         previous opinion that the hearing loss was due to acoustic 
 
         trauma.  He reported that a possibility existed that claimant's 
 
         tinnitus could have become worse following the intense noise 
 
         exposure, but that, since claimant's ears were already damaged 
 
         prior to the explosion, it would be very difficult to document 
 
         such.
 
         
 
              On October 16, 1986, claimant was advised through a letter 
 
         to his counsel from defendants' counsel that the sole authorized 
 
         treating physician for complaints of an orthopaedic nature was 
 
         Dr. Colah.  Defendants stated they were unhappy with the progress 
 
         claimant was making under the care of Dr. O'Shea and felt seeing 
 
         a specialist would enhance his chances of recovery.  On November 
 
         11, 1986, claimant was advised in a letter to claimant's counsel 
 
         from defendants' counsel that, per the report of Dr. Campbell, no 
 
         further mental health treatment of claimant by Mr. Lennon or any 
 
         other health care practitioner would be provided by the insurance 
 
         carrier.
 
         
 
              On November 13, 1986, claimant was sent an Auxier letter 
 
         advising that, in view of the opinions of Dr. Colah and Dr. 
 
         Campbell, it did not appear claimant was entitled to further 
 
         temporary total or permanent partial disability benefits and 
 
         that, for that reason, temporary total disability benefits would 
 
         be terminated within 30 days from the date of the receipt of the 
 
         letter or on the date claimant returned to work, whichever 
 
         occurred first.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is the causal relationship question.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 6, 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 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE  15
 
         
 
         
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              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 56, 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).
 
         
 
              A treating physician's testimony is not entitled to greater 
 
         weight as a matter of law than that of a physician who later 
 
         examines claimant in anticipation of litigation.  Weight to be 
 
         given testimony of physician is a fact issue to be decided by the 
 
         industrial commissioner in light of the record the parties 
 
         develop.  In this regard, both parties may develop facts as to 
 
         the physician's employment in connection with litigation, if so; 
 
         the physicians examination at a later date and not when the 
 
         injuries were fresh; the arrangement as to compensation; the 
 
         extent and nature of the physician's examination; the physician's 
 
         education, experience, training, and practice; and all other 
 
         factors which bear upon the weight and value of the physician's 
 
         testimony may be considered.  Both parties may bring all this 
 
         information to the attention of the factfinder as either 
 
         supporting or weakening the physician's testimony and opinion.  
 
         All factors go to the value of the physician's testimony as a 
 
         matter of fact not as a matter of law.  Rockwell Graphic Systems, 
 
         Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).
 
         
 
              A doctor's expertise and board certification may accord his 
 
         testimony greater weight.  See Ryland v. Pello, Inc., 32nd 
 
         Biennial Report, Iowa Industrial Commissioner, 56 (Rev. Dec. 
 
         1975); Dickey v. IIT [sic] Continental Baking Co., 34th Biennial 
 
         Report, Iowa Industrial Commissioner, 89 (Rev. Dec. 1979).
 
         
 
              An expert's opinion based upon an incomplete history is not 
 
         necessarily binding on the commissioner, but must be weighed with 
 
         other facts and circumstances.  Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 360, 154 N.W.2d 128, 133 (1969).
 
         
 
              Claimant has claimed injury to his ear as a result of his 
 
         July 6, 1985 work injury.  Medical evidence indicates claimant 
 
         had preexisting tinnitus and a hearing loss substantially the 
 
         same as recorded subsequent to his injury, however.  Dr. Gantz 
 
         has opined that, given the similarity of claimant's hearing loss 
 
         following his injury to that prior to his injury, claimant's 
 
         hearing loss does not result from acoustic trauma.  Dr. Gantz has 
 
         also opined that it would be difficult to document any 
 
         aggravation of claimant's tinnitus post-injury.  Claimant, 
 
         therefore, has failed to establish any injury to his ears as a 
 
         result of his work injury.
 
         
 
              Claimant also has claimed an eye injury as a result of his 
 
         work injury.  Yet, claimant, on his own testimony, indicated that 
 
         his vision is normal and that his sensitivity to light has 
 
         resolved.  Claimant, therefore, has not shown any permanent 
 
         change in his vision or the condition of his eyes overall as a 
 
         result of his work injury.
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE  16
 
         
 
         
 
         
 
              Claimant claims emotional trauma and emotional injury as a 
 
         result of his work injury.  Evidence supports claimant's 
 
         contention that he had a temporary aggravation of perhaps an 
 
         underlying emotional condition subsequent to his injury.  Such 
 
         aggravation consisted of post-traumatic stress disorder and 
 
         anxiety with flashbacks to claimant's Vietnam experience.  
 
         Claimant sought and received mental health care as a result of 
 
         such and, at a later date, voluntarily terminated his mental 
 
         health treatment.  Dr. Campbell, a psychiatrist, subsequently 
 
         opined that claimant had no mental disorder or impairment and no 
 
         treatment would be necessary for claimant.  Mr. Lennon, who had 
 
         counseled claimant, basically concurred with Dr. Campbell.  The 
 
         evidence, thus, does not support a finding of any permanent 
 
         mental health condition of claimant which relates back to his 
 
         work injury.
 
         
 
              The remaining and fighting issue is whether claimant has a 
 
         left shoulder condition which is permanently disabling as a 
 
         result of his work injury.  Claimant alleges he has pain and 
 
         restricted left shoulder motion.  Dr. O'Shea basically concurs 
 
         and has restricted claimant to no left arm lifting and no right 
 
         arm lifting of over 20 pounds.  Dr. O'Shea has also restricted 
 
         claimant from reaching or lifting above the left shoulder and has 
 
         assigned claimant a 7 1/2 percent permanent partial impairment 
 
         rating under the AMA guides.  Dr. Colah examined claimant and 
 
         ordered Cybex testing and an arthrogram of claimant's left 
 
         shoulder.  Dr. Colah felt there were no objective findings 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE  17
 
         
 
         
 
         supporting a definitive anatomical diagnosis or any permanent 
 
         partial impairment of claimant's left shoulder.  [He also found 
 
         that claimant had no lower back injury as a result of his work 
 
         injury.  The parties appear to concede this.]  Dr. Colah found 
 
         claimant had subjective complaints of pain, but that such 
 
         complaints were inconsistent with pain responses on Cybex 
 
         testing.  Dr. O'Shea is a board-recertified family practitioner; 
 
         he saw claimant on 22 occasions.  Dr. Colah is a board-eligible 
 
         orthopaedist; he saw claimant on two occasions before claimant 
 
         voluntarily terminated treatment with Dr. Colah.  Claimant was 
 
         apparently subsequently advised that treatment with Dr. O'Shea 
 
         was no longer authorized.  After claimant refused further 
 
         treatment by Dr. Colah, the then-authorized physician, claimant 
 
         did not seek further treatment with Dr. O'Shea and did not 
 
         petition for alternate care with Dr. O'Shea.  Claimant testified 
 
         that he has self-treated his shoulder injury from December, 1986.  
 
         That behavior supports Dr. Colah's finding that claimant has no 
 
         objectively occumentable current problem with his left shoulder.  
 
         We recognize that claimant was involved in a severe and traumatic 
 
         injury and do not doubt that pain and persistent problems can 
 
         exist following such an injury; that such problems, where they 
 
         exist, can interfere greatly with ones life activities; and, that 
 
         such pain may produce restricted active range of motion.  
 
         Unfortunately, even though Dr. O'Shea found claimant a credible 
 
         patient and a non-malingerer, the greater weight of lay evidence 
 
         as to claimant's activities as well as claimant's own testimony 
 
         and demeanor at hearing suggest that claimant is not a credible 
 
         reporter as regards his condition.  Claimant appears to have a 
 
         great need to exaggerate his symptomatology in order to gain 
 
         personally from its existence.  Given such, it is impossible to 
 
         give great weight to claimants own description of his symptoms at 
 
         hearing and to those symptoms as described subjectively by 
 
         claimant to Dr O'Shea.  The best objective evidence in the record 
 
         on the question of whether any permanent partial impairment and 
 
         permanent partial disability exists, therefore, is the testimony 
 
         and findings of Dr. Colah.  That testimony and those findings 
 
         support the conclusion that claimant has no permanent partial 
 
         impairment or disability as a result of his work-related injury.
 
         
 
              We need to discuss the benefit entitlement question only 
 
         insofar as we need to address the issue of whether claimant is 
 
         entitled to credit for temporary total disability benefit 
 
         overpayment from April to December, 1986.  Section 85.33(l) 
 
         provides:
 
         
 
              Except as provided in subsection 2 of this section, the 
 
              employer shall pay to an employee for injury producing 
 
              temporary total disability weekly compensation 
 
              benefits, as provided in section 85.32, until the 
 
              employee has returned to work or is medically capable 
 
              of returning to employment substantially similar to the 
 
              employment in which the employee was engaged at the 
 
              time of injury, whichever occurs first.
 
         
 
              Defendants contend they are entitled to credit for temporary 
 
         total disability benefit overpayment as claimant was actually 
 
         working as a paper carrier from April to December, 1986.  Lay 
 
         evidence supports a finding that claimant did, at times, 
 
         participate in parer routes through delivery of Quad Cities Times 
 
         paper routes during that period.  The paper routes were in 
 
         claimant's wifes name and payments under the routes were to 
 
         claimant's wife.  Claimant, apparently either with his wife or 
 
         with his wife and another individual, worked the route by driving 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE  18
 
         
 
         
 
         the car, making occasional deliveries and picking up and lifting 
 
         newspaper bundles.  Claimant was not a Quad Cities Times 
 
         employee, however.  Likewise, claimant's involvement in the 
 
         newspaper delivery route through December, 1986 was not work of 
 
         such a steady nature as to suggest a return to work as required 
 
         under the statute.  It appears to have been activity not 
 
         inconsistent with continuing recovery from a substantial injury.  
 
         Credit, therefore, is not allowed.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant sustained an injury on July 6, 1985 which arose out 
 
         of and in the course of his employment by way of an explosion at 
 
         his employer's place of business.
 
         
 
              Claimant was hospitalized for a period following the injury 
 
         and had a fractured zomata which required reconstruction; 
 
         lacerations of the left shoulder; light sensitivity on a 
 
         temporary basis; and, temporary episodes of post-traumatic stress 
 
         disorder and anxiety.
 
         
 
              Claimant's light sensitivity resolved within one year of his 
 
         work injury.
 
         
 
              Claimant's tinnitus and hearing loss preexisted his work 
 
         injury.
 
         
 
              Claimant sought treatment for his mental health condition 
 
         and voluntarily terminated such treatment.
 
         
 
              Claimant does not have a current mental health condition 
 
         related to his work injury and does not have a permanent partial 
 
         impairment on account of any mental health condition.
 
         
 
              Claimant has normal or functional range of motion of the 
 
         left shoulder upon objective testing.
 
         
 
              Claimant had no evidence of partial or permanent rotator 
 
         cuff tear upon arthrogram.
 
         
 
              Claimant has subjective symptoms of pain.
 
         
 
              Claimant's subjective symptoms of pain are not consistent 
 
         with objective findings on Cybex testing.
 
         
 
              Claimant has engaged in activities involving reaching above 
 
         his head and lifting, which are not consistent with his claimed 
 
         restrictions.
 
         
 
              Claimant was not a credible witness.
 
         
 
              Dr. O'Shea is a board-recertified family practitioner who 
 
         saw claimant on 22 occasions.
 
         
 
              Dr. Colah is a board-eligible orthopaedic physician who saw 
 
         claimant on two occasions.
 
         
 
              Claimant voluntarily terminated treatment with Dr. Colah and 
 
         has not sought any alternate care.
 
         
 
              Claimant does not have a permanent partial impairment of his 
 

 
         
 
         
 
         
 
         LEASE V. HAWKEYE CHEMICAL
 
         PAGE  19
 
         
 
         
 
         left shoulder related to his work injury.
 
         
 
              Claimant's wife was a paper carrier for the Quad Cities 
 
         Times in April, 1986 through December, 1986.
 
         
 
              Claimant participated in his wifes Quad Cities Times route 
 
         by driving the car, delivering papers and, occasionally, picking 
 
         up bundles of papers.
 
         
 
              The Quad Cities Times routes were in claimants wife's name 
 
         and payments for the routes were made through claimant's wife.
 
         
 
              Claimant's activities with the Quad Cities Times were not 
 
         inconsistent with continuing recovery from substantial injury.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has not established a causal relationship between 
 
         his July 6, 1985 work injury and claimed permanent partial 
 
         disability.
 
         
 
              Defendants are not entitled to a credit for overpayment of 
 
         temporary total disability benefits from April, 1986 through 
 
         December, 1986.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant take nothing further from this proceeding.
 
         
 
              Claimant pay costs of this proceeding pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 19th day of July, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                        HELEN JEAN WALLESER
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. James M. Hood
 
         Attorney at Law
 
         302 Union Arcade Building
 
         Davenport, Iowa 52801
 
         
 
         Ms. Sara J. Sersland
 
         Attorney at Law
 
         1900 Hub Tower
 
         699 Walnut
 
         Des Moines, Iowa 50309
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1704, 1803
 
                                                 Filed July 19, 1988
 
                                                 HELENJEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CLAUDE F. LEASE, JR.,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 799318
 
         HAWKEYE CHEMICAL,
 
                                               A R B I T R A T I O N
 
              Employer,
 
                                                  D E C I S I O N
 
         and
 
         
 
         NATIONAL UNION FIRE INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1704, 1803
 
         
 
              Claimant did not establish entitlement to permanent partial 
 
         disability as a result of a work injury to his left shoulder.  
 
         Claimant was not a credible witness.  Medical evidence was 
 
         controverted.  Objective testing did not support subjective 
 
         complaints.  Defendants were not entitled to credit for temporary 
 
         total disability benefits overpayment on the basis that claimant 
 
         worked with his spouse or another person on paper routes that 
 
         were not in claimant's name.
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LAURETTA BELLER,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 799401
 
            IOWA STATE PENITENTIARY, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
             The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the 
 
            deputy, filed January 23, 1990, is affirmed and is adopted 
 
            as the final agency action in this case with the following 
 
            additional comments: 
 
            The purpose of the workers' compensation statutes is clear 
 
            in providing weekly compensation to injured employees.  The 
 
            amount of weekly benefits, which are not taxable, to be 
 
            received by an employee is eighty percent of spendable 
 
            earnings.  Spendable earnings is defined in Iowa Code 
 
            section 85.61(9)(1991) to be the "amount remaining after 
 
            payroll taxes are deducted from gross weekly earnings."  The 
 
            employer's liability to an employee for workers' 
 
            compensation benefits under chapter 85 is to leave the 
 
            employee with funds that are in effect "after tax" 
 
            compensation.  If the defendant-employer's scheme were 
 
            accepted, the liability of the employer for workers' 
 
            compensation benefits would be something other than that 
 
            contemplated by the statute.  It is also interesting to note 
 
            that the state of Iowa is the sole provider of the long-term 
 
            group benefits for disability.  Therefore, the credit for an 
 
            employer under Iowa Code section 85.38(2) is the net amount 
 
            which the employee receives after payment of all applicable 
 
            taxes.
 
            Whether the disability benefits are taxable may be a 
 
            complicated matter.  E.g., see Iowa Code section 422.7(4) 
 
            and 701 IAC 40.22.  It is not within the purview of this 
 
            agency to make a definitive ruling on whether particular 
 
            disability payments are taxable or subject to tax.  The 
 
            conclusion reached in the preceding paragraph is sufficient 
 
            to determine the issue before this agency.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            Defendants shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of July, 1991.
 
            
 
            
 
            
 
                      ________________________________
 
                               CLAIR R. CRAMER
 
                       ACTING INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1066
 
            Keokuk, Iowa 52632
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Bldg.
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            1701
 
            Filed July 10, 1991
 
            Clair R. Cramer
 
            MGT
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            LAURETTA BELLER,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 799401
 
            IOWA STATE PENITENTIARY, :
 
                      :        A P P E A L
 
                 Employer, :
 
                      :      D E C I S I O N
 
            and       :
 
                      :
 
            STATE OF IOWA, :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1701
 
            The credit for an employer under Iowa Code section 85.38(2) 
 
            is the net amount which the employee receives after payment 
 
            of all applicable taxes.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAURETTA BELLER,
 
         
 
              Claimant,
 
                                                      File No. 799401
 
         VS.
 
         
 
         IOWA STATE PENITENTIARY,                 A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Lauretta Beller, against her employer, Iowa State Penitentiary, 
 
         and its insurance carrier, State of Iowa, to recover benefits 
 
         under the Iowa Workers' Compensation Act, as a result of an 
 
         injury allegedly sustained January 10, 1985.  This matter came on 
 
         for hearing before the undersigned deputy industrial commissioner 
 
         in Burlington, Iowa, on March 17, 1987.  A first report of injury 
 
         was filed April 12, 1985.  The record was considered fully 
 
         submitted at close of hearing.
 
         
 
              The record in this case consists of the testimony of 
 
         claimant, of George Beller, of Kimberly Carroll, of Laurie 
 
         Carroll, of Rebecca D. Gary nee Hilary, and of Mary Lou Cooper, 
 
         as well as of joint exhibits 1 through 17.  Joint exhibit 1 is 
 
         medical records of William Whitley, D.D.  Joint exhibit 2 is a 
 
         disability report of Marian S. Jacobs.  Joint exhibit 3 is the 
 
         deposition of Dr. Whitley.  Joint exhibit 4 is the court reporter 
 
         fee regarding said deposition.  Joint exhibit 5 is the deposition 
 
         of G. Patrick Weigel.  Joint exhibit 6 is a statement of court 
 
         costs.  Joint exhibit 7 is income tax returns.  Joint exhibit 8 
 
         is medical records of Keith W. Riggins, M.D.  Joint exhibit 9 is 
 
         the court reporter fee for the deposition of Dr. Riggins.  Joint 
 
         exhibit 10 is the deposition of Dr. Riggins.  Joint exhibit 11 is 
 
         the fee of Dr. Riggins for said deposition.  Joint exhibit 12 is 
 
         a March 9, 1987 report of Dr. Riggins.  Joint exhibit 13 was 
 
         identified as a March 4, 1987 report of Dr. Riggins, but is 
 
         apparently a December 23, 1986 report of the doctor.  Joint
 
         exhibit 14 is the Department of Corrections accident report.  
 
         Joint exhibit 15 is a November 24, 1986 report of Sinesio 
 
         Misol, M.D.  Joint exhibit 16 is a March 4, 1987 letter of 
 
         JoAnn E. Wilbur.  Joint exhibit 17 is Blue Cross/Blue Shield 
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page   2
 
         
 
         
 
         documents regarding claimant.
 
         
 
                                  ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant's rate of weekly compensation is $215.23; that 
 
         claimant remains off work; and that claimant's medical costs are 
 
         fair and reasonable.  The issues remaining to be decided are:
 
         
 
              1.  Whether claimant received an injury which arose out of 
 
         and in the course of her employment;
 
         
 
              2.  Whether a causal relationship exists between claimant's 
 
         injury and her claimed disability;
 
         
 
              3.  Whether claimant is entitled to benefits and the nature 
 
         and extent of any benefit entitlement;
 
         
 
              4.  Whether defendants are entitled to a credit under 
 
         section 85.38(2) for benefits paid claimant; and
 
         
 
              5.  Whether claimant is entitled to payment of certain 
 
         medical costs as medically necessary and causally related to her 
 
         injury.
 
         
 
              As regards the issue of claimant's entitlement to healing 
 
         period or temporary total disability, claimant contends that she 
 
         remains off work and is still entitled to a running award of 
 
         healing period benefits.  Defendants contend that per exhibit 15, 
 
         the report of Dr. Misol, claimant's healing period ended four to 
 
         six weeks after January 10, 1985.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              Claimant is 39 years old and a high school graduate.  She 
 
         was a licensed cosmotologist in Kentucky, but not in Iowa, and 
 
         has not done.cosmetology work since 1978.  She has done some 
 
         assembly line factory work, but has worked primarily as a 
 
         correctional officer at prison facilities.  She most recently 
 
         worked as a correctional officer at Iowa State Penitentiary and 
 
         testified that she was injured there on January 10, 1985 when she 
 
         saw fell on the ice "really hard and fast."  Claimant stated that 
 
         she tried to brace her fall with her hands, but fell on her 
 
         tailbone.  She apparently continued on to a lower prison gate 
 
         following that incident, but did report an injury to her wrist to 
 
         her supervisors.  An accident report detailing a wrist injury, 
 
         but not injury to the rest of claimant's body was completed.
 
              
 
              Claimant initially saw William H. Whitley, D.O., for her 
 
         wrist condition and treated with him for the wrist condition from 
 
         January 10, 1985 through early February 1985.  Whitley apparently 
 
         prescribed pain medication for the wrist.  Claimant continued 
 
         working.  Claimant did not see Dr. Whitley or anyone else for 
 
         medical care from February 1985 until May 13, 1985 when she 
 
         returned to Dr. Whitley for treatment of her "back."
 
         
 
              On that date, claimant told Dr. Whitley that last winter she 
 
         had slipped at the prison and fell and since then intermittently, 
 
         she had had low back pain, that during the last two or three 
 
         weeks had localized and gotten worse.  Dr. Whitley's examination 
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page   3
 
         
 
         
 
         of claimant on May 13, 1985 revealed tenderness on pressure with 
 
         the coccyx bones and tenderness in the iliosacral and low lumbar 
 
         spine areas.  Impression was of a probable acute coccyxitis.  He 
 
         prescribed Naprosyn, Aristocort, and "shot" and a donut for 
 
         claimant to sit on at work.  On May 21, 1985, Dr. Whitley 
 
         interpreted x-rays as confirming that the coccyx nest was pushed 
 
         anteriorly and slightly to the right.  Donald H. Rice, M.D., had 
 
         reported on the same date that that finding might be a congenital 
 
         variation or might be an old healed fracture through the 
 
         sacrococcygeal svndermosis.  Claimant apparently traveled to 
 
         Kentucky by car in June 1985.  This apparently caused acute 
 
         flareup of her coccyxitis.  Claimant apparently stopped working 
 
         on July 5, 1985.
 
         
 
              Claimant returned to work on a four hour per day basis on 
 
         October 3, 1986 inventorying furniture at the penitentiary.  This 
 
         involved lifting and bending furniture in order to get inventory 
 
         numbers.  She indicated that she could not handle the work 
 
         physically and, therefore, left on December 17, 1986.  Claimant 
 
         saw Keith W. Riggins, M.D., on that date.  Dr. Riggins is a board 
 
         certified orthopedic surgeon.  Claimant complained of low back 
 
         pain which radiated to the right leg.  Examination of the lumbar 
 
         spine demonstrated range of motion to be full and complete with 
 
         no vertebral spasm present.  Deep tendon reflexes were 2+ and 
 
         symmetrical and no motor sensory deficits were noted.  Straight 
 
         leg raising caused low back discomfort, but without radiation.  
 
         X-rays demonstrated minimal degenerative spur formation at the 
 
         L3-4 level, and computerized axial tomography of the spine 
 
         demonstrated circumferential type bulging at the L3-4 level 
 
         without localized herniation.  On December 23, 1986, Dr. Riggins 
 
         characterized claimant's condition as intervertebral disc disease 
 
         and reported that she had specific functional limitations on 
 
         bending, lifting and sitting for long periods, as well as on 
 
         strenuous pushing, pulling or lifting with the upper extremities. 
 
          Dr. Riggins opined that claimant would not be able to return to 
 
         the full duties of a correctional officer, but possibly could 
 
         return to some segment of those duties which precluded her being 
 
         involved in altercations or performing bending or lifting 
 
         activities.  On March 9, 1987, Dr. Riggins opined that although 
 
         claimant's intervertebral disc disease was not directly caused by 
 
         her injury at work, the condition was aggravated by the injury.  
 
         In his deposition, the doctor stated that a small herniation may 
 
         or not be present fat the L3-4 level], but that the herniation 
 
         was not impinging on the nerve roots and he did not consider 
 
         claimant's condition surgically treatable.  In the deposition, 
 
         the doctor also stated in response to a question as to whether or 
 
         not the injury could have aggravated claimant's preexisting 
 
         degenerative process that "It could have done so but there is not 
 
         way I can medically establish whether that actually be the case."  
 
         He also reported it was possible but he had no way of knowing 
 
         whether claimant's disc, characterized by counselor as a bulging 
 
         disc, was consistent with a fall such as claimant allegedly 
 
         sustained on January 10, 1985.  He reported that an individual 
 
         can develop this sort of condition without any sort of injury.
 
         
 
              Claimant testified that in Winter 1987 she asked to return 
 
         to work within Dr. Riggins' restrictions, but was told that she 
 
         could not return within those restrictions.  Claimant opined that 
 
         there was a televised surveillance job that she could do as a 
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page   4
 
         
 
         
 
         correctional officer.  She agreed that she was not aware of 
 
         whether these were available.  Under the state's labor-manager 
 
         agreement, she could not bump someone else to receive those 
 
         jobs.
 
         
 
              In his deposition, Dr. Whitley opined that claimant had a 
 
         two to five percent functional impairment of the body as a whole.  
 
         He reported that claimant was virtually precluded from employment 
 
         requiring sitting, but that he was uncertain whether she could 
 
         tolerate employment involving standing.  He opined that he was 
 
         assuming that preinjury claimant's coccyx bones were in a 
 
         different configuration than that now revealed on her x-rays.  He 
 
         indicated they had been forcefully moved from the normal position 
 
         with ligament and tissue in the area preventing the bones from 
 
         returning to normal position.  He stated the following regarding 
 
         claimant's healing:
 
         
 
              Q.  Are the ligaments and the other connective tissues 
 
              holding those bones together damaged?
 
         
 
              A.  Well, they certainly were during the trauma, yes.
 
         
 
              Q.  Have they healed?
 
         
 
              A.  Apparently not.  She's still hurting.
 
         
 
              Q.  Are they going to heal?
 
         
 
              A.  I would say maybe eventually there would be healing 
 
              occur; but because of the deviation --You've got to 
 
              remember you've got the sacral plexus of nerves exiting 
 
              from the sacrum in that same area, which is about 50 
 
              percent of the nerves to the legs and lower back. 
 
              (Dep. p. 18, 11. 19-25; p. 19, 11. 1-5.)
 
         
 
              He later stated that ligaments, once damaged, do not repair 
 
         themselves but are either surgically repaired or remained 
 
         damaged.  He characterized as "very remote" the possibility of 
 
         repairing the ligaments and cartilages surgically given the 
 
         proximity to the sacral plexus and the possibility of damaging 
 
         nerves in the area.  The doctor later stated that claimant would 
 
         be helped if while working in a sitting position she got every 
 
         half hour for ten minutes or five minutes every fifteen minutes 
 
         to avoid problems with pain.  He characterized as speculation, 
 
         however, the statement that if claimant could spend twenty 
 
         minutes out of every hour on her feet, she could avoid the pain 
 
         and function within the 95 to 98 percent range for her body as a 
 
         whole.  The doctor stated that when the coccyx bones were knocked 
 
         out of alignment it would hurt and there would be discomfort but 
 
         not necessarily bruising or discoloration.  He also stated the 
 
         following:
 
         
 
              Q.  Would it have been less pain when she fell than 
 
              when you saw her in May or more painful?
 
         
 
              A.  It's hard to say.  I would think it probably would 
 
              have been more painful for a more prolonged period and 
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page   5
 
         
 
         
 
              it would probably hurt all the time rather than just 
 
              sitting. (Dep., p. 31, 11 17-22.)
 
         
 
              The doctor stated that he saw claimant on February 7, 1985 
 
         with complaints of left arm and shoulder aching and with a 
 
         ganglion cyst on the arm, but that claimant did not complain of 
 
         pelvic problem nor of any injury to her right wrist.  Claimant 
 
         testified that her back pain following her injury was a dull 
 
         pain.
 
         
 
              Claimant was examined by Sinesio Misol, M.D., a board 
 
         certified orthopedic surgeon, on June 6, 1986.  In the course of 
 
         his examination, Dr. Misol reviewed Dr. Whitley's notes.  The 
 
         doctor reported that claimant had forward flexion of the spine to 
 
         90 degrees or normal with extension to 35 degrees.  Bending to 
 
         the right, 15 degrees, to the left, 10 degrees.  Rotation to the 
 
         right 20 degrees, to the left 20 degrees.  Straight leg raising 
 
         was negative.  Claimant had no atrophy of the legs, and was able 
 
         to walk on her heels and toes, and had normal knee and ankle 
 
         reflex.  Dr. Misol interpreted a scan performed on October 2, 
 
         1985 as essentially within normal limits except for a bifid 
 
         coccyx with some anterior angulation of that portion of the 
 
         coccyx.  He did not know whether this was congenital or 
 
         traumatic.  He reported the bone scan was negative; he believed 
 
         the coccyx had not been fractured.  His impression was post 
 
         contusion, coccyx with some residual discomfort.  He opined that 
 
         there was no permanent partial impairment and that the only thing 
 
         keeping claimant from maximum recuperation was loss of 
 
         muscle strength in the abdomen and approximately thirty 
 
         pound weight gain.  He recommended that claimant undergo an 
 
         abdominal paraspinal muscle exercise program of isokenetio 
 
         [sic] and isometric exercises.  On November 24, 1986, Dr. 
 
         Misol opined that claimant's concussion of the coccyx of 
 
         January 10, 1985 would probably account for a four to six week 
 
         healing time.
 
         
 
              A report of Dr. Whitley of June 17, 1985 states that x-rays 
 
         taken in May 1985 have findings of an apparent 
 
         fractured-dislocation of the coccyx with the largest proximal 
 
         segment on the left side of the sacrum.  Three smaller coccygeal 
 
         segments are in articulation with the right side of the sacrum.  
 
         The doctor states that by the history related this is most likely 
 
         post traumatic, but that he cannot 100 percent rule out a bifid 
 
         coccyx on a congenital basis.
 
         
 
              On cross-examination, claimant reported that she had told 
 
         her husband that the Iowa State Penitentiary accident report was 
 
         incorrect in that the report did not state that she had fallen on 
 
         her tailbone, but that she otherwise did not tell anyone at the 
 
         state penitentiary that the report form was incorrect.
 
         
 
              Claimant reported that Mary Lou Cooper, of the Iowa State 
 
         Penitentiary, told her that if she would drop her lawsuit the 
 
         penitentiary would pay claimant's medical bills and benefits.  
 
         Claimant agreed that following May 1985, Blue Cross/Blue Shield 
 
         paid her medical costs.  She did not recall telling Dr. Whitley 
 
         on August 12, 1985 that the claim was not work related and that, 
 
         therefore, Blue Cross/Blue Shield should be paying it.  Dr. 
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page   6
 
         
 
         
 
         Whitley's note of August 12, 1985 states the following:
 
         
 
              We are presently preparing the records for transfer to 
 
              Mr. Hoffman for a workmens compensation.  There seems 
 
              to be some question, apparently they contacted Blue 
 
              Cross, and Blue Cross said that they would go ahead and 
 
              pay the medical records, but not to mention workmens 
 
              compensation on the claim.  I find that difficult to do 
 
              inasmuchas [sic] that would be essentially untrue on 
 
              our part.  When we fill out the form it does ask if 
 
              there is other insurance involved, so I am really not 
 
              sure how to aPproach this insurance thing on her.  I am 
 
              certainly not going to lie to Blue Cross, thatOs up to 
 
              them, if they wish to thatOs their business, but from 
 
              the standpoint of our office we are not going to 
 
              fabricate any information on a claim to Blue Cross.
 
         
 
              Claimant also denied that she had had pain in her back 
 
         before January 10, 1985 and stated she had had three successful 
 
         full-term pregnancies without particular discomfort in her back.
 
              Claimant reported that she has made no efforts with 
 
         vocational retraining, that she had a very limited field for 
 
         retraining, and had not looked into retraining because she had 
 
         hoped to return to work at the prison.  Claimant reported that 
 
         her long-term disability benefits were being held as of March 4, 
 
         1987 during a period of reevaluation.
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page   7
 
         
 
         
 
         
 
              Claimant's daughter, Kimberly Carroll, age 17, testified 
 
         that she lives with her mother and remembers that her mother 
 
         talked about both her wrist and her tailbone discomfort on the 
 
         night of the injury.  She reported that since the injury, 
 
         claimant cannot lift laundry, unload the dishwasher, cannot rake 
 
         the lawn, cannot grocery shop, cannot drive in a car for too 
 
         long, and cannot sit or stand for very long.  She indicated that 
 
         claimant continues to use her donut and that claimant has 
 
         difficulty sitting on bleachers for school activities.  Laurie D. 
 
         Carroll substantiated her sister's testimony regarding her 
 
         mother's restrictions.  George Beller, claimant's husband since 
 
         September 1979, substantiated his stepchildren's testimony as 
 
         regards claimant's life activity restrictions.  He indicated that 
 
         he has been a lieutenant at the Iowa State Penitentiary since 
 
         1980 and opined that claimant's job as a correctional officer 
 
         requires manhandling and pad search of men larger than claimant.  
 
         He stated that less than ten percent of correctional officers are 
 
         female.  Claimant is 5O5" tall and weighs 160 pounds.  Mr. Beller 
 
         reported that on January 10, 1985, claimant stated that she had 
 
         fallen on her buttocks and that she hurt all over.
 
         
 
              Rebecca D. Gray nee Hillary, R.N., testified that she is a 
 
         nurse with the Health Care Unit at the Iowa State Penitentiary.  
 
         She reported that state penitentiary personnel report to the 
 
         health care unit for work injury stabilization.  She reported 
 
         that medical personnel complete an accident report that records 
 
         whatever the employee told the personnel concerning the injury.  
 
         The employee reviews the report and signs it.  On occasion, an 
 
         employee will add other information following the review.  The 
 
         witness identified joint exhibit 17 as the accident report she 
 
         had completed following claimant's injury in January 1985.  She 
 
         reported that what was written on the report is exactly what 
 
         claimant told.her and that the report was filled out as claimant 
 
         was describing the injury.  The report reflects that claimant did 
 
         not say she had hurt her back or had any complaints of back pain.  
 
         Page 1 of exhibit 14 states: "Pd. state was walking down hill on 
 
         west end slipped in snow--fell backwards and caught self with 
 
         hands when fell down--c/0's of dull ache in st. wrist.  No other 
 
         c/0 Os of injury.  "Page 2 of exhibit 14 states: "Has full R.O.M. 
 
         in Rt wrist - No edema, discoloration or lac in wrist.  C/oOs of 
 
         dull ache.  Pulse good gd in wrist. (nonintelligible) gd. Reports 
 
         no further injury."  Claimant signed page 1 of the report.
 
         
 
         
 
              Mary Lee Cooper stated that she has been a purchasing 
 
         assistant at Iowa State Penitentiary and was handling workers' 
 
         compensation claims for the penitentiary on January 10, 1985.  
 
         Ms. Cooper stated that the employee contacts her when an injury 
 
         occurs and completes a report of that injury.  The employee is 
 
         instructed to describe all circumstances of the injury and all 
 
         body parts affected.  Ms. Cooper could not recall claimant 
 
         stating that she had back pain on January 10, 1985.  Towards the 
 
         end of May 1985, claimant did call her and state that claimant 
 
         was experiencing pain in her tailbone.  She then told claimant to 
 
         see a doctor and that if the complaint was related to the January 
 
         injury, a medical report would be needed to that effect.  Ms. 
 
         Cooper denied having ever talked to Blue Cross/Blue Shield, or 
 
         that she had told claimant that if she dropped the workers' 
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page   8
 
         
 
         
 
         compensation claim the state would pick up the Blue Cross/Blue 
 
         Shield.  The witness did agree that she had talked to a Dick 
 
         Andrews who had told her that if claimant stopped her claim, the 
 
         state would go ahead and pay her bills.
 
         
 
              Marian S. Jacobs, a vocational consultant, evaluated 
 
         claimant in late 1985 and prepared the report dated April 28, 
 
         1986.  In the report, Ms. Jacobs indicated that Dr. Whitley had, 
 
         as of January 1986 restricted claimant to one hour of standing, 
 
         fifteen to thirty minutes of sitting, ten pounds lifting, thirty 
 
         to forty-five minutes walking on grass and thirty minutes walking 
 
         on concrete, but had not restricted claimant's bending and 
 
         stooping.  Jacobs interviewed claimant in her home on November 
 
         26, 1985.  Claimant then was under Dr. Kantamneni's care for 
 
         treatment of nervousness and depression and was taking 
 
         antidepressants.  Extended periods of sitting, standing, walking, 
 
         or heavy lifting were described as aggravating claimant's 
 
         tailbone and low back pain.  Claimant's nonwork-related abilities 
 
         included furniture refinishing, basic typing, and basic 
 
         bookkeeping.  Claimant reported doing housework at her own pace.  
 
         Claimant demonstrated excellent communication skills during the 
 
         interview and subsequent phone conferences with Ms. Jacobs.  Ms. 
 
         Jacobs administered the general aptitude test battery to claimant 
 
         and reported that claimant's GATB test scores indicated claimant 
 
         could be expected to perform satisfactory in a number of jobs 
 
         classified as light or sedentary with sitting/standing/walking 
 
         flexibility.  The job included security guard (with periodic 
 
         walking through clock rounds), cashier (in a work setting that 
 
         permits sitting and standing during the work day), file clerk, 
 
         mail clerk (in a work setting with no lifting requirements over 
 
         ten pounds), and salesperson.  Jobs outlined pay between  $3.50 
 
         and $6.00 per hour, the median range being approximately $4.00 to 
 
         $4.50 per hour.  Jacobs opined that claimant also could transfer 
 
         her skills to the following specific jobs in work settings 
 
         allowing the necessary sitting/standing/standing flexibility with 
 
         lifting up to ten pounds; that is, cosmotologist, telephone 
 
         solicitor, and night clerk.  She opined that claimant could earn 
 
         approximately $10,000 per year working as a cosmotologist and 
 
         approximately $3.35 per hour as either a solicitor or clerk.  
 
         Jacobs opined that claimant was precluded from a move to an Iowa 
 
         Merit Commission clerical position within the penitentiary 
 
         because of Dr. Whitley's stringent limitations on her lifting, 
 
         standing and sitting activities.  Jacobs reported that claimant 
 
         earned $652 biweekly or $8.15 per hour assuming a forty hour work 
 
         week in July 1985, her last regular pay period.  She indicated 
 
         that claimant could expect to earn from $3.35 to $6.00 per hour 
 
         in a specialized work setting suitable to her physical 
 
         limitations post injury.  Jacobs reported that claimant's past 
 
         work experience as a production machinist, production assembler, 
 
         production inspector, cosmotologist, telephone operator, and 
 
         correctional officer involved extensive sitting or standing 
 
         throughout the work day, and that, therefore, claimant was 
 
         precluded from work in those areas unless the work duties were 
 
         adapted to meet her physical needs.  Jacobs reported that 
 
         claimant had not utilized Job Service or Iowa State Vocational 
 
         Rehabilitation Services because of her continuing treatment for 
 
         depression and pain.  Jacobs opined that claimant had marketable 
 
         skills that were transferable to a limited number of job 
 
         categories and work settings and that, therefore, her employment 
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page   9
 
         
 
         
 
         options are significantly curtailed by her injury.  She opined 
 
         that claimant is thirty percent vocationally disabled.
 
         
 
              G. Patrick Weigel evaluated claimant at the Mercy 
 
         occupational Evaluation Center on June 6, 1986.  Mr. Weigel is 
 
         manager of the Mercy Occupational Evaluation Center and holds a 
 
         Masters Degree in rehabilitation counseling.  Weigel testified 
 
         that during her evaluation, claimant was asked to perform two 
 
         VALPAR work samples involving sitting.  He indicated that 
 
         claimant had done quite well on the samples even though they 
 
         included sitting in total of approximately two hours and fifteen 
 
         minutes.  Weigel subsequently agreed that claimant had stood for 
 
         a modest portion of the one of the samples, however.  Weigel 
 
         opined that if claimant were working as a cosmotologist in her 
 
         own shop, her income level would be quite similar to her income 
 
         while employed as a prison guard.  He was unaware whether 
 
         claimant qualified to work as a cosmotologist in Iowa.  Weigel 
 
         opined that claimant was motivated and was optimistic about her 
 
         work with the State of Iowa and hoped to return to that work as 
 
         soon as she was able.  He opined that from the impressions and 
 
         observations of the evaluation center, claimant would make a good 
 
         employee.  He opined that claimant should be able to find and 
 
         keep competitive, gainful employment.  On cross-examination, 
 
         Weigel agreed that claimant had sat well back in the chair and 
 
         utilized the back of the chair for support and did use her donut 
 
         while performing the evaluation.  He reported, however, that 
 
         claimant did not verbalize any pain or discomfort or sitting 
 
         problems while being evaluated.  His impression was that claimant 
 
         was taking medication for pain while being evaluated.  Weigel 
 
         subsequently noted that low back pain is generally a term to 
 
         describe pain around the beltline, a little bit below, and above 
 
         the tailbone.  Weigel deposition
 
         exhibit 1 is the Center's report on claimant's evaluation.  Under 
 
         conclusions and recommendations, it is stated that nothing found 
 
         in the vocational portion of claimant's evaluation would preclude 
 
         claimant's returning to her previous employment.  It was hoped 
 
         that she would complete the exercise program Dr. Misol 
 
         recommended and then would be physically able to return to her 
 
         previous employment.
 
         
 
              Claimant's W-2 wage and tax statement for 1985 indicates 
 
         that she earned $14,057.04.  Claimant's earnings in 1984 
 
         apparently as reported on the deductions for married couple when 
 
         both work on her income tax return was $16,820.48.  Earnings in 
 
         1983 were $16,274.60.  Earnings in 1982 were $15,717.38.  
 
         Earnings in 1981 were $15,970.93.  Joint exhibit 17 lists amounts 
 
         Blue Cross/Blue Shield has paid for "back pain" for claimant.  
 
         Joint exhibit 16 indicates that claimant's long-term disability 
 
         benefits under state coverage have continued without interruption 
 
         from November 9, 1985 to March 4, 1987.  The total amount paid on 
 
         the disability claim as of March 4, 1987 was $11,926.42.
 
         
 
              The balance of the evidence was reviewed and considered in 
 
         the disposition of this matter.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether claimant received an injury 
 
         which arose out of and in the course of her employment.
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page  10
 
         
 
         
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received an injury on January 10, 1985 which 
 
         arose out of and in the course of her employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al.  Counties, 
 
         188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 402, 68 N.W.2d 63.
 
         
 
             "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it.O  Cedar Rapids Comm.  Sch.  Dist. v. Cady, 278 
 
         N.W.2d 298 (Iowa 1979), McClure, 188 N.W.2d 283, Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128.
 
         
 
              Neither party apparently disputes that claimant injured her 
 
         wrist in a work incident on January 10, 1985.  The fighting 
 
         issues are whether claimant's alleged coccyx injury and her 
 
         alleged intervertebral degenerative disc condition are injuries 
 
         which arose out of and in the course of that work incident.  At 
 
         the onset we note that claimant did not visit a doctor for her 
 
         coccyx condition until May 13, 1985.  Neither did she report 
 
         injury to other than her wrist in reports she either,completed or 
 
         reviewed upon completion for her employer,at the time of her 
 
         January 10, 1985 injury.  Neither do medical notes indicate 
 
         claimant complained of low back or tailbone pain to Dr. Whitley 
 
         when she saw him for treatment of her wrist in January and 
 
         February 1985.  Claimant continued to work through July 5, 1985.  
 
         Her medical history to Dr. Whitley in May 1985 describes the 
 
         January 10, 1985 work incident as the event in which claimant's 
 
         pain originated.  Claimant's husband and children testified that 
 
         claimant had complaints of other than wrist pain from her injury 
 
         date onward.  Claimant did call her employer's representative in 
 
         May 1985 and report she had back complaints which she believed 
 
         arose from her injury.  Sufficient credible evidence exists to 
 
         establish that the physical results of claimant's January 10, 
 
         1985 work incident extended beyond her wrist.  Whether claimant's 
 
         coccyx condition and her intervertebral degenerative disc disease 
 
         are disabilities relating to the January 10, 1985 injury remains 
 
         to be decided.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of January 10, 1985 is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page  11
 
         
 
         
 
         possibility is i sufficient; 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, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
              
 
              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).
 
         
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page  12
 
         
 
         
 
              X-rays show that claimant's coccyx nest is pushed anteriorly 
 
         and slightly to the right.  Both Dr. Rice and Dr. Misol believe 
 
         that finding might be congenital or could represent an old healed 
 
         fracture.  Dr. Whitley has opined that from claimant's history, 
 
         the condition is most likely traumatic although he cannot rule 
 
         out the possibility the condition is congenital.
 
         
 
              Claimant reported she carried three pregnancies to term 
 
         without significant difficulties with "back."  Claimant's spouse 
 
         and children testified as to the difficulties with pain and with 
 
         prolonged sitting claimant has had since January 10, 1985.  
 
         Claimant continues to use a donut for sitting.  No one suggests 
 
         that device is not necessary for her wellbeing.  Claimant did not 
 
         need that item prior to her work injury.  We find sufficient 
 
         credible evidence exists to establish a causal relationship 
 
         between claimant's work injury and disability related to her 
 
         coccyxitis.
 
         
 
              We consider the question of whether claimant's degenerative 
 
         disc disease relates to her work injury.  On Dr. Riggins has 
 
         diagnosed, treated and evaluated claimant's disc condition.  He 
 
         has rendered varying opinions as regards whether claimant's work 
 
         injury contributed to the disc condition.  He opined in his 
 
         deposition both that it was possible, but he had no way of 
 
         knowing whether claimant's "bulging" was consistent with a fall 
 
         such as that of January 10, 1985 and that he could not medically 
 
         establish that claimant's injury had aggravated her preexisting 
 
         degenerative process.  Riggins later opined that claimant's 
 
         intervertebral disc disease was not directly caused by but 
 
         aggravated by her injury.  Claimant has gained thirty pounds 
 
         since her injury.  She has largely been inactive.  Dr. Riggins 
 
         did not see claimant until December 17, 1986.  While Dr. Whitley 
 
         stated that claimant had tenderness on pressure with the coccyx 
 
         bones and tenderness in the iliosacral and low lumbar spine areas 
 
         on May 13, 1985, other medical evidence suggesting claimant had a 
 
         disc problem as a result of her January 10, 1985 injury is 
 
         virtually absent.  Dr. Misol found limited evidence of a back 
 
         condition when he examined claimant in June 1986.  He did not 
 
         relate that to her injury.  The almost two year period between 
 
         claimant's injury and Dr. Riggins' diagnosis, Dr. Riggins' 
 
         inconsistent opinions and the absence of objective evidence 
 
         demonstrating claimant had significant low back complaints from 
 
         her injury onward raise serious questions as to whether 
 
         claimant's claimed disc condition relates to her injury. 
 
         Claimant has not shown the requisite causal connection.
 
         
 
              We consider the question of claimant's benefit entitlement. 
 
          As claimant has not shown her intervertebral disc disease 
 
         relates to her work injury, we consider this question only as it 
 
         relates to her coccyx problem and her wrist injury.  We consider 
 
         the healing period question.  Claimant contends she is still 
 
         entitled to a running award of healing period benefits.  
 
         Defendants contend any healing period entitlement ended four to 
 
         six weeks after her injury per Dr. MisolOs November 24, 1986 
 
         report.  Dr. Whitley opined that surgical repair of claimant's 
 
         damaged ligaments is not possible given their proximity to the 
 
         sacral plexus.  He reported that ligaments, once damaged, do not 
 
         repair themselves without surgery.  He also stated that "maybe 
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page  13
 
         
 
         
 
         eventually there would be healing occur..." The tenor of the 
 
         doctor's remarks suggests that claimant's coccyx condition is not 
 
         likely to change significantly in the foreseeable future and has 
 
         not changed significantly from her injury onward.
 
         
 
              An appeal decision by this agency held:
 
         
 
              That a person continues to receive medical care does 
 
              not indicate that the healing period continues.  
 
              Medical treatment which is maintenance in nature often 
 
              continues beyond that point when maximum medical 
 
              recuperation has been accomplished.  Medical treatment 
 
              that anticipates improvement does not necessarily 
 
              extend healing period particularly when the treatment 
 
              does not in fact improve the condition.
 
         
 
         Derochie v. City of Sioux City, II Iowa Industrial Commissioners 
 
         Report 112, 114 (1982).
 
         
 
              Healing period as used in section 85.34(l) may be 
 
         characterized as that period during which a reasonable 
 
         expectation of improvement of disabling condition exists.  
 
         Healing period ends when maximum medical improvement is reached.  
 
         When claimant's condition will not improve from the start but 
 
         will be aggravated by further physical exertion, claimant is not 
 
         entitled to healing period benefits as no further improvement of 
 
         claimant's condition is anticipated.  Armstrong Tire & Rubber v. 
 
         Kubli, 312 N.W.2d 60, 65 (Iowa App. 1981).
 
         
 
              Permanent means for an indefinite and undeterminable period. 
 
         Wallace v. Brotherhood of Locomotive Firemen and Enginemen, 230 
 
         Iowa 1127, 1130, 300 N.W. 322, 324 (1941), citing Garen v. New 
 
         England Mutual Life Insurance Company, 218 Iowa 1094, 1104, 754 
 
         N.W. 287, 292 (1934).
 
         
 
         
 
              We find that claimant's condition as it exists is a 
 
         permanent condition which has not changed appreciably since at 
 
         least May 13, 1985.  Any significant healing occurred within the 
 
         time frame Dr. Misol set forth.  Claimant remained at work during 
 
         that time.  Hence, claimant is not entitled to a healing period 
 
         award.  Any permanency award runs from July 5, 1985 when claimant 
 
         left work on account of her coccyx condition.
 
         
 
              We reach the permanent partial disability entitlement 
 
         question.
 
         
 
              An injury is the producing cause; the disability, however, 
 
         is the result, and it is the result which is compensated.  Barton 
 
         v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961); 
 
         Dailey v. Pooley Lumber Co., 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).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page  14
 
         
 
         
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disabilityO to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              In Parr v. Nash Finch Co., (Appeal decision, October 31, 
 
         1980) the Industrial Commissioner, after analyzing the decisions 
 
         of McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) and 
 
         Blacksmith v. All-American, Inc., 290 N.W.2d 348 (Iowa 1980), 
 
         stated:
 
         
 
              Although the court stated that they were looking for 
 
              the reduction in earning capacity it is undeniable that 
 
              it was the "loss of earnings" caused by the job 
 
              transfer for reasons related to the injury that the 
 
              court was indicating justified a finding of "industrial 
 
              disability."  Therefore, if a worker is placed in a 
 
              position by his employer after an injury to the body as 
 
              a whole and because of the injury which results in an 
 
              actual reduction in earning, it would appear this would 
 
              justify an award of industrial disability.  This would 
 
              appear to be so even if the worker's "capacity" to earn 
 
              has not been diminished.
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         
 
         
 
         an award of disability.  McSpadden, 288 N.W.2d 181.
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden v. Big Ben Coal 
 
         Co., supra.
 
         
 
              Apportionment of disability is limited to those situations 
 
         where the prior injury or illness, unrelated to employment, 
 
         independently produces some ascertainable portion of the ultimate 
 
         industrial disability found to exist following the employment 
 
         related aggravation.  Varied Industries, Inc. v. Sumner, 353 
 
         N.W.2d 407 (Iowa 1984).
 
         
 
              Claimant is 39 years old and a high school graduate.  She 
 
         has post-work experience as a cosmotologist, a factory worker, 
 
         and a correctional officer.  She appears to have been well placed 
 
         vocationally as a correctional officer and motivated to return to 
 
         that work.  Claimant did not successfully return to work at the 
 
         state penitentiary when Dr. Whitley released her for work in 
 
         October 1986.  Unfortunately, it is difficult to ascertain 
 
         whether claimant left that work on account of her work-related 
 
         coccyx condition or on account of her degenerative disc disease. 
 
          Claimant testified that she could not handle the lifting and 
 
         bending involved in inventorying furniture.  Dr. Whitley had 
 
         restricted claimant's lifting on account of her coccyx condition 
 
         but not her bending.  Dr. Riggins has restricted both claimant's 
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page  15
 
         
 
         
 
         bending and lifting on account ot her degenerative disc disease; 
 
         hence, it appears the latter condition likely played a greater 
 
         role in claimant's inability to continue her employment on her 
 
         October 1986 work return.  Likewise, claimant testified her 
 
         employer refused her employment as a correctional officer in 
 
         March 1987 as she could not return under Dr. Riggins' 
 
         restrictions.  Those restrictions relate to claimant's 
 
         nonwork-related degenerative disc disease.  Therefore, claimant 
 
         has also not shown that her employer refused her employment on 
 
         account of her work-related disability.
 
         
 
              While claimant appeared motivated to return to her prior 
 
         work, she has not sought other training.  Claimant is aware of a 
 
         limited number of correctional officer positions with the 
 
         employer which she could fulfill within both her work-related 
 
         coccyx restrictions and her nonwork-related disc restrictions.  
 
         Claimant is also aware that under the labor management agreement 
 
         between her employer and its employee, it is not possible for 
 
         senior employees to be bumped from those positions in favor of 
 
         physically restricted employees.  Hence, claimant's insistence 
 
         that the employer provide her such positions is unrealistic and 
 
         does not provide sufficient justification for claimant's absolute 
 
         failure to seek other employment or consider retraining.  Dr. 
 
         Whitley opined claimant's coccyx condition precludes her from 
 
         employment involving sitting.  Claimant performed satisfactorily 
 
         on VALPAR samples involving extensive sitting even though she 
 
         used her donut, a modified sitting technique, and some standing 
 
         to do so.  That finding suggests that claimant is not so limited 
 
         vocationally because of her coccyx condition as Ms. Jacobs opined 
 
         and claimant believes.  ClaimantOs functional impairment on 
 
         account of her coccyx condition is quite small.  An impairment 
 
         was not assigned for the nonwork-related disc condition.  
 
         Restrictions for that condition are far more stringent than those 
 
         for the work-related coccyx condition. under Varied Industries v. 
 
         Sumner, industrial disability relating to that condition as 
 
         surmised from the restrictions is apportioned out and not 
 
         considered in assessing claimant's work injury-related loss of 
 
         earning capacity.  Claimant was bright and wellspoken.  Her past 
 
         work history as a cosmotologist, her past hobby of furniture 
 
         refinishing as well as her dress, general appearance and demeanor 
 
         at hearing suggested claimant is a creative person with artistic 
 
         talents.  One suspects she would do well if she returns to a 
 
         field, such as her prior work as a cosmotologist, where she could 
 
         utilize these talents on a routine basis.  Mr. Weigel has opined 
 
         that if claimant were appropriately licensed she could earn 
 
         earnings as a cosmotoligist near her earnings as a correctional 
 
         officer.  Claimant's VALPAR testing performance suggests she 
 
         could work at a number of positions with some reasonable 
 
         accommodation to her sitting, standing and walking restrictions.  
 
         Claimant is still a relatively young worker.  She is at an age 
 
         where many women are only beginning financially remunerative 
 
         careers after having spent extensive years working as homemakers.  
 
         Claimant appears to have derived satisfaction from working.  It 
 
         would be a great loss to claimant personally were she to permit 
 
         her work-related coccyx difficulties or her disc condition to 
 
         unnecessarily preclude her from a personally and economically 
 
         productive life.  When all factors are considered, claimant is 
 
         found to have a 25 percent loss of earning capacity.
 
         
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page  16
 
         
 
         
 
              The parties list a section 85.27 issue.  Only joint exhibit 
 
         10 contains evidence regarding outstanding medical costs.  
 
         Claimant, of course, is entitled to payment of any reasonable and 
 
         necessary medical expenses for treatment of her work-related 
 
         coccyx condition.  She is not entitled to payment of costs 
 
         related to treatment of her degenerative disc disease Dr. 
 
         Whitley's treatment related to the coccyx condition.  Claimant is 
 
         entitled to payment of her actual costs for treatment.  We cannot 
 
         ascertain to which condition the Ft. Madison Hospital costs after 
 
         May 21, 1985 related or to which condition the "99999" relates or 
 
         to which condition claimant's treatment with Dr. Rice after 
 
         October 2, 1985 relates.  Claimant, therefore, is not entitled to 
 
         payment of her costs for those treatments.
 
         
 
              Defendants seek a credit under section 85.38(2) for  both 
 
         long-term disability and health insurance benefits paid claimant. 
 
          
 
         
 
         
 
         
 
         The section provides:
 
         
 
              Credit for benefits paid under group plans.  In the 
 
              event the disabled employee shall receive any benefits, 
 
              including medical, surgical or hospital benefits, under 
 
              any group plan covering nonoccupational disabilities 
 
              contributed to wholly or partially by the employer, 
 
              which benefits should not have been paid or payable if 
 
     
 
         
 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page  17
 
         
 
         
 
              any rights of recovery existed under this chapter, 
 
              chapter 85A or chapter 85B, then such amounts so paid 
 
              to said employee from any such group plan shall be 
 
              credited to or against any compensation payments, 
 
              including medical, surgical or hospital, made or to be 
 
              made under this chapter, chapter 85A or chapter 85B.  
 
              Such amounts so credited shall be deducted from the 
 
              payments made under these chapters.  Any 
 
              nonoccupational plan shall be reimbursed in the amount 
 
              so deducted.  This section shall not apply to payments 
 
              made under any group plan which would have been payable 
 
              even though there was an injury under this chapter or 
 
              an occupational disease under chapter 85A or an 
 
              occupational hearing loss under chapter 85B.  Any 
 
              employer receiving such credit shall keep such employee 
 
              safe and harmless from any and all claims or 
 
              liabilities that may be made against them by reason of 
 
              having received such payments only to the extent of 
 
              such credit.
 
         
 
              As regards the long-term disability benefit, no evidence was 
 
         submitted indicating that claimant would not receive the benefit 
 
         were she entitled to workers' compensation recovery or as to 
 
         whether the long-term disability plan was contributed to wholly 
 
         or partially by the employer.  Defendants, of course, would be 
 
         entitled to a credit if benefits would not have been paid had 
 
         claimant been entitled to workers' compensation benefits to the 
 
         extent of defendants' proportionate contributions to the plan, if 
 
         any.  The parties are encouraged to work together to resolve this 
 
         issue without further agency intervention.
 
         
 
              As regards health insurance payment, the evidence 
 
         demonstrates those benefits would not have been paid had claimant 
 
         received an injury which arose out of and in the course of her 
 
         employment.  The evidence does not demonstrate that the health 
 
         care plan was contributed to wholly or partially by the employer.  
 
         Defendants, of course, would be entitled to a credit to the 
 
         extent of defendants' proportionate contributions to the plan, if 
 
         any.  The parties are encouraged to work together to resolve this 
 
         issue without further agency intervention.
 
         
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              THEREFORE, IT IS FOUND:
 
         
 
              Claimant fell on ice at work at the Iowa State Penitentiary 
 
         on January 10, 1985.
 
         
 
              She braced her fall with her wrist but fell into a seated 
 
         position.
 
         
 
              Claimant visited the penitentiary infirmary on her injury 
 
         date and reported wrist complaints, but not complaints as to the 
 
         rest of her body.
 
         
 
              Claimant completed an accident report for her employer on 
 
         January 10, 1985 and reported a wrist injury, but no injury to 
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page  18
 
         
 
         
 
         the rest of her body.
 
         
 
              Claimant visited Dr. Whitley for treatment of her wrist 
 
         injury from January 10, 1985 through early February 1985, but did 
 
         not report or receive treatment for other than upper extremity 
 
         complaints.
 
         
 
              Claimant continued to work following her injury.
 
         
 
              Claimant saw Dr. Whitley on May 13, 1985 and complained of 
 
         low back pain intermittently since her January 10, 1985 injury 
 
         which during the last two or three weeks had localized and gotten 
 
         worse.
 
         
 
              Claimant had acute coccyxitis.
 
         
 
              Claimant had carried three pregnancies to term without 
 
         significant "back" difficulty prior to her injury.
 
         
 
              Claimant had worked full time and engaged in numerous 
 
         physically demanding household activities prior to her injury.
 
         
 
              Claimant had difficulty with those activities since her 
 
         injury.
 
         
 
              Claimant's coccyx condition is related to her work injury 
 
         and is not a congenital condition.
 
         
 
              Claimant has gained thirty pounds since her injury.
 
         
 
              Claimant left work July 5, 1985 for reasons related to her 
 
         coccyx condition.
 
         
 
              Claimant returned to work on October 3, 1986 and left work 
 
         again in December 1985 because she believed she could not handle 
 
         the lifting and bending involved.
 
         
 
              Claimant saw Dr. Riggins December 17, 1986.
 
         
 
              Dr. Riggins diagnosed a degenerative disc condition.
 
         
 
              Dr. Misol examined claimant on June 6, 1986 and found only 
 
         minimal signs of degenerative disc problems.
 
         
 
              Claimant's degenerative disc disease is not a condition 
 
         resulting from her injury.
 
         
 
              Claimant's coccyx condition cannot be surgically treated as 
 
         it involves ligament and tissue damage near the sacral plexus.
 
         
 
              Ligament damage does not heal unless surgically repaired.
 
         
 
              Claimant's coccyx condition remains substantially as it was 
 
         on May 13, 1985.
 
         
 
              Claimant is 39 years old.
 
         
 
              Claimant is a high school graduate.
 
         
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page  19
 
         
 
         
 
              Claimant has prior work experience as a correctional 
 
         officer, a factory worker, and a cosmotologist.
 
         
 
              Claimant is licensed as a cosmotologist in Kentucky, but not 
 
         in Iowa.
 
         
 
              Claimant was motivated to return to work as a correctional 
 
         officer, but not to seek other employment or retraining.
 
         
 
              Claimant's employer's labor management agreement precludes 
 
         bumping senior employees from positions in order to get the 
 
         position for a physically handicapped employee.
 
         
 
              Claimant has restrictions on sitting, standing, walking, and 
 
         lifting related to her coccyx condition.
 
         
 
              Claimant has more stringent physical restrictions related to 
 
         her nonwork-related back conditions.
 
         
 
              Claimant's inability to return to work in March 1987 related 
 
         to the back conditions and to Dr. Riggins' restrictions for that 
 
         condition.
 
         
 
              Claimant has a minimal functional impairment.
 
         
 
              Claimant is creative and artistic.
 
         
 
              Claimant performed satisfactorily on VALPAR samples 
 
         involving extensive sitting.
 
         
 
              Claimant could perform work with appropriate accommodations 
 
         of her coccyx condition.
 
         
 
              Claimant has a loss of earning capacity of 25 percent.
 
         
 
              Claimant received long-term disability benefits following 
 
         her injury.
 
         
 
              Claimant received Blue Cross/Blue Shield health care 
 
         benefits for medical care following her injury.  Claimant would 
 
         not have received such benefits if care had been provided for an 
 
         injury which arose out of and in the course of her employment.
 
         
 
              It is not determinable whether claimant's employer 
 
         contributed wholly or partially to either the long-term 
 
         disability or the Blue Cross/Blue Shield benefit plan.
 
         
 
              Dr. Whitley provided claimant medical care related to her 
 
         coccyx condition.
 
         
 
              Dr. Rice provided claimant care related to her coccyx 
 
         condition on or before October 2, 1985.
 
         
 
              Fort Madison Hospital costs on or before May 21, 1985 
 
         related to claimant's coccyx condition.
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page  20
 
         
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant has established an injury on January 10, 1985 which 
 
         arose out of and in the course of her employment.
 
         
 
              Claimant has established a causal relationship between the 
 
         January 10, 1985 injury and her wrist and coccyx condition, but 
 
         not between the injury and her degenerative disc disease.
 
         
 
              Claimant is entitled to permanent partial disability 
 
         resulting from her injury of January 10, 1985 of 25 percent 
 
         (25%).
 
         
 
              Claimant is entitled to payment of her actual costs for 
 
         medical care with Dr. Whitley and with Dr. Rice on or before 
 
         October 2, 1985 and with the Fort Madison Hospital on or before 
 
         May 21, 1985.
 
         
 
              Defendants have not established an entitlement to a credit 
 
         under section 85.38(2) under this record.  The parties are 
 
         encouraged to resolve the section 85.38(2) issue without further 
 
         intervention of the agency.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant permanent partial disability 
 
         benefits for one hundred twenty-five (125) weeks at a rate of two 
 
         hundred fifteen and 23/100 dollars ($215.23) with those benefits 
 
         to commence on July 5, 1985.
 
         
 
              Defendants pay claimant's actual medical costs as outlined 
 
         in the above conclusions of law.
 
         
 
              Defendants pay accrued amounts in a lump sum.
 
         
 
              Defendants pay interest pursuant to section 85.30.
 
         
 
              Defendants pay costs pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              Defendants file claim activity reports as required by the 
 
         agency.
 
         
 
              Signed and filed this 27th day of May, 1987.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                           HELEN JEAN WALLESER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 

 
         
 
         
 
         
 
         BELLER V. IOWA STATE PENITENTIARY
 
         Page  21
 
         
 
         
 
         P.O. Box 1066
 
         Middle Road
 
         Keokuk, Iowa 52632-1066
 
         
 
         Mr. Charles S. Lavorato
 
         Assistant Attorney General
 
         Hoover Building
 
         LOCAL
 
         
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
                                               1100; 1802; 1803; 2500
 
                                               Filed 5-27-87
 
                                               Helen Jean Walleser
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         LAURETTA BELLER,
 
         
 
              Claimant,
 
                                                   File No. 799401
 
         VS.
 
         
 
         IOWA STATE PENITENTIARY,               A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1100; 1802; 1803; 2500
 
         
 
              Claimant's tailbone injury found to have arisen out of and 
 
         in the course of her employment.  Functional impairment was 
 
         minimal, but claimant's restrictions on sitting and standing were 
 
         found to result in loss of earning capacity of 25 percent.  No 
 
         healing period benefits awarded where claimant's condition had 
 
         not improved significantly since original injury and was only 
 
         likely to minimally improve at best.
 
 
 
         
 
 
            
 
 
 
 
 
               
 
 
 
                     
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAURETTA BELLER,                         File No. 799401
 
         
 
              Claimant,                            R E V I E W -
 
         
 
         vs.                                     R E O P E N I N G
 
         
 
         IOWA STATE PENITENTIARY,                 D E C I S I O N
 
         
 
              Employer,
 
                                                    F I L E D
 
         STATE OF IOWA,
 
                                                    JAN 23 1990
 
              Insurance Carrier,
 
              Defendants.                       INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in review-reopening brought by the Iowa 
 
         State Penitentiary and its insurer the state of Iowa against 
 
         Lauretta Beller.  The case was heard and fully submitted at 
 
         Burlington, Iowa on July 11, 1989.  The record in the proceeding 
 
         consists of testimony from Lauretta Beller, claimant's exhibits 
 
         3, 4 and 5, and defendants' exhibits 1 and 2.
 
         
 
                                      ISSUES
 
         
 
              The only issue presented by the parties for determination is 
 
         whether the credit allowed to the employer under the provisions 
 
         of Iowa Code section 85.38(2) for the group long-term disability 
 
         benefits is to be based upon the total number of dollars paid in 
 
         long-term disability benefits or whether the amount of the credit 
 
         is to be based upon the net amount received by the claimant after 
 
         payment of income taxes chargeable to the benefits.
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              In an arbitration decision filed May 27, 1987, the claimant 
 
         was awarded 125 weeks of permanent partial disability 
 
         compensation payable at the rate of $215.23 per week commencing 
 
         July 5, 1985. The issue of defendants' entitlement to credit 
 
         under Code section 85.38(2) was identified as an issue to be 
 
         determined by that hearing.  The review-reopening decision, 
 
         however, stated, "Defendants have not established an entitlement 
 
         to a credit under section 85.38(2) under this record."  It went 
 
         on, however, to encourage the parties to resolve the issue 
 
         without further intervention of the agency.  Claimant has 
 
         stipulated that credit is due.  No defense in the nature of 
 
         preclusion or res judicata was urged based upon the fact that the 
 
         entitlement had been raised as an issue at the time the case was 
 
         heard on March 17, 1987 and that the arbitration decision entered 
 
                                                
 
                                                         
 
         May 27, 1987 specifically found that the employer had not shown 
 
         an entitlement to the credit.
 
         
 
              According to exhibit 2, claimant was paid long-term 
 
         disability benefits from November 9, 1985 through May 14, 1987 at 
 
         the rate of $881.92 per month, but that the monthly amount was 
 
         reduced for wages which claimant had earned from part-time work 
 
         subsequent to October 3, 1986.  The record of the case does not 
 
         contain a week-by-week or month-by-month showing of how much was 
 
         paid at any particular time.  The total paid was $14,836.76.
 
         
 
              Exhibit 4 shows that claimant was paid $10,404.40 in 1986. 
 
         Exhibit 5 shows that she was paid $4,432.36 in 1987.  Exhibits 4 
 
         and 5 show that claimant's husband earned more than $20,200 in 
 
         each of years 1986 and 1987.  Federal income tax was withheld 
 
         from claimant's long-term disability payments in the amount of 
 
         $266.00 for 1986 and $270.00 for 1987.
 
         
 
              Claimant's evidence shows that if the disability income 
 
         payments had been treated as nontaxable workers' compensation, 
 
         her federal income tax liability for calendar years 1986 and 1987 
 
         would have been reduced by $2,914.00 and that her state income 
 
         tax liability for those years would have been reduced by $677.00 
 
         (exhibit 3).
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant contends that since workers' compensation weekly 
 
         benefits are not taxed by either the federal or state government, 
 
         the credit should be limited to the after-tax dollars which 
 
         claimant actually receives, rather than the pre-tax dollar 
 
         amount. Claimant contends that where the state takes part of the 
 
         benefits in state income taxes, the situation is particularly 
 
         aggravated.
 
         
 
              The employer contends that the statute, section 85.38(2), 
 
         provides a direct dollar-for-dollar credit and that if some type 
 
         of tax offset was intended, it would have been provided in the 
 
         statute.  Reference was made to Chapter 668 of The Code of Iowa.
 
         
 
              Chapter 668 is not applicable to this matter because it 
 
         deals with tort liability and comparative fault.  It deals only 
 
         with causes of action based upon "fault."  Section 668.14 
 
         provides for consideration of some collateral source payments 
 
         when damages are awarded, but that section also allows 
 
         consideration of the cost of procuring those collateral source 
 
         payments.
 
         
 
              The Iowa Supreme Court has ruled that the principle of 
 
         allowing damages is to provide compensation.  The ultimate 
 
         purpose is to place the injured party in as favorable a position 
 
         as though no wrong had been committed.  Dealers Hobby, Inc. v. 
 
         Marie Ann Linn Realty Co., 255 N.W.2d 131 (Iowa 1977); Adams v. 
 
         Deur, 173 N.W.2d 100 (Iowa 1969).
 
         
 
                                                
 
                                                         
 
              There are a number of rules of construction which must be 
 
         applied.  The ultimate goal is to determine and effectuate the 
 
         intent of the legislature.  Iowa Beef Processors, Inc. v. 
 
         Miller, 312 N.W.2d 530, 532 (Iowa 1981); American Home Prods. 
 
         Corp. v. Iowa State Board of Tax Review, 302 N.W.2d 140, 142 
 
         (Iowa 1981). One must look to the object to be accomplished, the 
 
         mischief to be remedied, or the purpose to be served, and place 
 
         on the statute a reasonable or liberal construction which will 
 
         best effect, rather than defeat, the legislature's purpose.  City 
 
         of Mason City v. Public Employment Relations Board, 316 N.W.2d 
 
         851, 854 (Iowa 1982); Peffers v. City of Des Moines, 299 N.W.2d 
 
         675, 678 (Iowa 1980).  Strained, impractical or absurd results 
 
         are to be avoided in favor of a sensible, logical construction.  
 
         Ida County Courier and The Reminder v. Attorney General, 316 
 
         N.W.2d 846, 851 (Iowa 1982); Iowa Beef Processors Inc., 312 
 
         N.W.2d at 532.  All parts of the statute are to be considered 
 
         together, without attributing undue importance to any single or 
 
         isolated portion.  Iowa Beef Processors, Inc., supra; Peffers, 
 
         supra.  The spirit of the statute must be considered along with 
 
         its words, Hansen v. State, 298 N.W.2d 263, 265 (Iowa 1980), and 
 
         the manifest intent of the legislature will prevail over the 
 
         literal import of the words used.  Iowa Beef Processors, Inc., 
 
         supra.  Legislation should be given a rational, workable 
 
         meaning.  Iowa Dep't of Transp. v. Nebraska-Iowa Supply Co., 272 
 
         N.W.2d 61 11 (Iowa 1978).  The legislature is presumed to not 
 
         intend to overturn long established principles of law unless its 
 
         intention to do so is clearly expressed, necessarily implied or 
 
         no other construction can be reasonably made.  Wilson v. Iowa 
 
         City, 165 N.W.2d 813 (Iowa 1969). The policy is to liberally 
 
         construe workers' compensation statutes in favor of the worker.  
 
         Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 
 
         1981); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 188 (Iowa 
 
         1980).  Its beneficent purpose is not to be defeated by reading 
 
         something into it that is not there.  Cedar Rapids Community 
 
         School v. Cady, 278 N.W.2d 298 (Iowa 1979). Nevertheless, the 
 
         requirements of the statute are controlling. Halstead v. 
 
         Johnson's Texaco, 264 N.W.2d 757, 759 (Iowa 1978).  It is 
 
         generally presumed that statutory words are used in their 
 
         ordinary and usual sense with the meaning commonly attributed to 
 
         them.  American Home Prods. Corp., supra.  There are no jokers in 
 
         workers' compensation law.  Comingore v. Shenandoah Art. Ice, 
 
         Etc. Co., 208 Iowa 430, 226 N.W. 124 (1929).
 
         
 
              Code section 85.38 does not contain any express reference to 
 
         the impact of taxes.  It is also noted, however, that section 
 
         85.37 provides in part, ". . . The weekly benefit amount payable 
 
         to any employee for any one week shall be upon the basis of 
 
         eighty percent of the employee's weekly spendable earnings. . . 
 
         ."
 
         
 
              Sections 85.61(10), (11) and (12) clearly show that the 
 
         intend of the legislature was to provide the injured worker with 
 
         a weekly amount of money which is 80 percent of what the employee 
 
         would be receiving if the employee were working.  The weekly 
 
         benefit rate is determined on the basis of after-tax income.  It 
 
                                                
 
                                                         
 
         is general knowledge that workers' compensation benefits are not 
 
         subjected to state or federal income taxation.  If it were 
 
         expected that the employee were to pay income taxes on workers' 
 
         compensation benefits, it would be expected that the statutory 
 
         formula for determining the weekly benefit amount would not 
 
         contain a reduction for income taxes.  It would be quite 
 
         illogical to have a system where weekly earnings were reduced for 
 
         income taxes in order to provide a weekly benefit amount which is 
 
         itself then reduced again for income taxes.  It would in effect 
 
         tax the same wages, or wage replacement, twice.  It is therefore 
 
         determined by the undersigned that the effect of income taxes was 
 
         within the contemplation of the legislature when the statutes 
 
         which fix the weekly compensation rate were enacted.
 
         
 
              If the legislature intended to provide weekly benefits as a 
 
         means of support for injured workers and fixed that level of 
 
         support at 80 percent of the customary spendable earnings, it 
 
         would be inconsistent with that intent to provide a lesser amount 
 
         when credit is granted under Iowa Code section 85.38(2) to 
 
         satisfy all or part of the weekly compensation payment 
 
         obligation.  A strict, literal reading of section 85.38(2) would 
 
         provide that a credit is allowed only when the benefits are paid 
 
         to the employee, rather than to any other payee.  The subsection 
 
         reads in part, "In the event the disabled employee shall receive 
 
         any benefits, including medical, surgical or hospital benefits, 
 
 
 
                          
 
                                                         
 
         under any group plan . . . then such amounts so paid to said 
 
         employee from any such group plan shall be credited . . . ."  
 
         [Emphasis added.]  If interpreted literally, there would be no 
 
         credit for medical expenses paid directly to the medical service 
 
         provider by a group plan.  There would be no credit for any 
 
         amounts that were withheld for income tax purposes and paid to 
 
         the taxing body, even if the employee elected to have the entire 
 
         amount withheld.  The undersigned does not, however, construe the 
 
         statute in that manner.
 
         
 
              The statute should be construed in such a manner as to 
 
         provide the injured employee with what the employee would have 
 
         received if the employer had complied with the workers, 
 
         compensation law.  If the employer had complied, the claimant 
 
         would have received weekly compensation at the rate of $215.23 
 
         per week.  She would have had all of that weekly amount available 
 
         to spend in order to support herself since workers' compensation 
 
         benefits are not subject to federal or state taxation.  If a 
 
         full, dollar-for-dollar for credit is authorized, then the 
 
         employee receives less than the statutorily provided $215.23 per 
 
         week because the long-term disability benefits are subject to 
 
         federal and state taxation.  It should be noted that the tax 
 
         treatment of workers' compensation benefits and group long-term 
 
         disability income benefits is well known.  This case does not 
 
         involve novel or complicated tax law issues. claimant's spouse's 
 
         income is sufficient to eliminate any disability income exclusion 
 
         for state income taxes.
 
         
 
              The question which must then be determined is whether any 
 
         adverse economic impact which results from the employer's 
 
         decision to pay group benefits, rather than workers' 
 
         compensation, should be borne by the employer who made the 
 
         mistake or by the employee who was powerless to prevent the 
 
         employer from mishandling the case.  The undersigned is unable to 
 
         justify any construction of the statute which would in effect 
 
         penalize the employee for the employer's mistake.  It is 
 
         therefore determined that when credit is provided for disability 
 
         income payments made under the provisions of Iowa Code section 
 
         85.38(2), the amount of that credit to which the employer is 
 
         entitled is the net amount which the employee receives after 
 
         payment of all applicable taxes.
 
         
 
               In this case, exhibits 4 and 5 show that the employer 
 
         reported the payments made to the claimant as wages, tips or other 
 
         compensation in the form of third party disability [sic] payments 
 
         as shown on the W-2 forms.  The employer has not issued corrected 
 
         or amended W-2 statements in order to permit the employee to treat 
 
         the payments as nontaxable workers' compensation benefits.  If the 
 
         employer were to issue such amended tax documents within the 
 
         amount of time that the claimant would be permitted to amend her 
 
         original income tax returns, then there would be no adverse impact 
 
         to be suffered by either the employer or the employee.  Both the 
 
         employer and employee would be restored to the same position as 
 
         each would hold if the employer had not made a mistake when it 
 
         decided to deny the payment of workers' compensation benefits.  
 
                                                
 
                                                         
 
         The employer, presumably, has known of its mistake since the 
 
         arbitration decision was entered on May 27, 1987, but it has 
 
         apparently not taken action to amend the W-2 forms issued to 
 
         claimant and the employment tax returns filed with the federal 
 
         government and also with the Iowa Department of Revenue.  As 
 
         before, the injured employee should not be placed in a less 
 
         favorable position as a result of an employer's failure to fully 
 
         comply with the workers' compensation laws.  If a party must be 
 
         disadvantaged by the employer's error, it should be the employer, 
 
         not the employee.
 
         
 
              The matter of determining the amount of credit to be allowed 
 
         in this case is not easily achieved.  Since this is the 
 
         disability income program which exists in accordance with Iowa 
 
         Code section 79.20, the undersigned presumes that the disability 
 
         program is fully consistent with the provisions of Iowa Code 
 
         section 79.20, rather than being in violation of the law.  The 
 
         Code provides that the monthly disability benefits are to be 
 
         reduced by workers' compensation when applicable, but subsection 
 
         3 also provides for a minimum benefit of $50 per month.  That 
 
         provision can be construed to provide for payment of not less 
 
         than $50 per month regardless of any workers' compensation weekly 
 
         benefit payments.  The monthly long-term disability benefit of 
 
         $881.92 is equivalent to a weekly payment of $203.52, an amount 
 
         which is less than the workers' compensation entitlement.
 
         
 
              When income taxes are considered as shown in exhibit 3, the 
 
         net amount which the claimant actually received from the 
 
         long-term disability benefits (after taxes) was $7,710.00.  For 
 
         1987, the amount received was $3,535.00.  Therefore, of the total 
 
         $14,836.76 which was paid in long-term disability benefits, the 
 
         employer is entitled to a credit in the amount of $11,245.00.  It 
 
         is determined that where it is necessary to make a determination 
 
         of the amount of the credit, such must be done on an individual 
 
         case-by-case basis in which the actual tax effect is specifically 
 
         computed.  That computation is a proper subject of expert 
 
         testimony in the nature of exhibit 3 which was received into 
 
         evidence in this case.
 
         
 
              An attempt was made to arrive at a credit computation using 
 
         the workers' compensation benefit schedule.  The result, however, 
 
         deviated greatly from the actual amounts computed by certified 
 
         public accountant John Russell.  There are two major reasons why 
 
         the benefit schedule could not be used as a basis for computing 
 
         the correct amount of credit.  First, the benefit schedule 
 
         includes a deduction for FICA taxes.  Long-term disability income 
 
         payments are not subject to FICA taxes since they are not 
 
         considered to be earned income.  Second, the weekly rate of 
 
         compensation determined under the benefit schedule is based upon 
 
         the employee's actual earnings.  It is not affected by income 
 
         from other sources or income from a spouse.  The marginal income 
 
         tax rate in a case such as this where both spouses are gainfully 
 
         employed is probably considerably higher than the effective 
 
         marginal income tax rate that is used when determining the rate 
 
         of compensation under the benefit schedule. it is therefore 
 
                                                
 
                                                         
 
         determined that actual computation provides a much better method 
 
         of determining the proper amount of credit rather than to 
 
         establish a standing rule or formula to be applied in connection 
 
         with the benefit schedule.  The closest standard formula which 
 
         the undersigned has been able to develop would be to use the 
 
         benefit schedule to apply the long-term disability benefit to the 
 
         benefit schedule as if it were wages and obtain a weekly 
 
         compensation benefit amount.  Since the schedule provides for 
 
         only 80 percent of the spendable earnings, the resulting figure 
 
         should then be multiplied by a factor of 1.25 in order to restore 
 
         it to 100 percent of spendable earnings which were provided by 
 
         the long-term disability income payments.  In this case, the file 
 
         indicates that claimant is apparently married with five 
 
         exemptions and gross weekly wages of $326.00 based upon her 
 
         weekly compensation rate of $215.23.  If the weekly equivalent of 
 
         the monthly long-term disability benefits, namely $203.52, is 
 
         treated as gross weekly wages and applied to the schedule, the 
 
         result is $142.60 per week. Multiplying that result by the factor 
 
         of 1.25 provides for a credit amount of $178.25 per week.  If the 
 
         total amount of the long-term disability payments is converted 
 
         into a weekly equivalent, it provides 72.9 weeks.  Seventy-two 
 
         point nine weeks at $178.25 per week would provide a credit in 
 
         the amount of $12,994.42, an amount which is nearly $1,750.00 
 
         higher than the credit which is allowable if a precise 
 
         computation is made.
 
         
 
              A reading of Code section 79.20 could be interpreted to 
 
         provide a minimum long-term disability benefit of $50 per month 
 
         under section 79.20(3).  That $50 benefit would, of course, be 
 
         subject to taxation if it is paid in addition to workers' 
 
         compensation.  The statute does not appear to offset, credit or 
 
         prohibit payment of that $50 amount due to workers' compensation 
 
         benefits.  Neither of the parties, however, raised any issue with 
 
         regard to that $50 minimum.  The issue as presented by the 
 
         parties to the undersigned was simply to determine whether the 
 
         credit is based upon the full amount of the long-term disability 
 
         payments or the net amount remaining after taxes.  The 
 
         undersigned has concluded that it is based upon the net amount 
 
         remaining after taxes and has further determined that the amount 
 
         of credit to which the employer is entitled in this case is the 
 
         sum of $11,245.00.
 
         
 
                               FINDINGS OF FACT
 
         
 
              1.  During calendar years 1986 and 1987, Lauretta Beller was 
 
         paid $14,836.76 in disability income payments which were paid by 
 
         the Principal Financial Group, formerly known as Bankers Life 
 
         Insurance, under a group benefit program maintained by the state 
 
         of Iowa as authorized by Iowa Code section 79.20.
 
         
 
              2.  The long-term disability benefits were subject to 
 
         federal and state income taxes which resulted in claimant 
 
         receiving a net amount of only $11,245.00 after payment of the 
 
         taxes chargeable to those benefits which totalled $3,591.00.
 
         
 
                                                
 
                                                         
 
              3.  The computations made by John Russell, certified public 
 
         accountant, are correct and accurate.
 
         
 
              4.  The decision to pay group disability benefits rather 
 
         than workers' compensation benefits was made by the employer and 
 
         the claimant had no control over what decision the employer 
 
         made.
 
         
 
              5.  The employer's decision to pay long-term disability 
 
         benefits rather than workers' compensation was erroneous as 
 
         established by the arbitration decision filed May 27, 1987.
 
         
 
              6.  The employer did not issue amended W-2 form wage and tax 
 
         statements for calendar years 1986 and 1987, after the 
 
         arbitration decision entered May 27, 1987 established that the 
 
         employer owed claimant workers' compensation benefits rather than 
 
         group long-term disability benefits, in order to change the tax 
 
         status of the payments from taxable long-term group disability 
 
         benefits to nontaxable workers' compensation benefits.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The credit provided by Code section 85.38(2) for group 
 
         disability income payments is to be determined in a manner which 
 
         provides the injured employee with the same amount of actual 
 
         spendable benefits as the employee would have received if 
 
         workers' compensation weekly benefits had been paid in the proper 
 
         amount at the proper time.  The employee should not be adversely 
 
         affected economically as a result of an employer's incorrect 
 
         decision to pay a taxable disability income payment rather than 
 
 
 
                             
 
                                                         
 
         workers' compensation weekly benefits.
 
         
 
              3.  When it is necessary to make a computation of the amount 
 
         of credit to be allowed, that computation is to be made on a 
 
         case-by-case basis.
 
         
 
              4.  Expert testimony is appropriate to make computations to 
 
         determine the amounts which will place the employee in the same 
 
         position as the employee would have occupied if nontaxable 
 
         workers' compensation payments had been paid rather than taxable 
 
         group disability income payments.
 
         
 
              5.  In this case, the employer is entitled to a credit in 
 
         the amount of $11,245.00 under the provisions of Iowa Code 
 
         section 85.38(2) as a result of the disability income payments 
 
         which were paid in the amount of $14,836.76.
 
         
 
                                  ORDER
 
         
 
              IT IS THEREFORE ORDERED that on account of the disability 
 
         income payments paid during calendar years 1986 and 1987, the 
 
         employer, Iowa State Penitentiary and state of Iowa, is entitled 
 
         to a credit in the amount of eleven thousand two hundred 
 
         forty-five and 00/100 dollars ($11,245.00) against the award of 
 
         one hundred twenty-five (125) weeks of permanent partial 
 
         disability compensation which was made in the arbitration 
 
         decision filed herein on May 27, 1987.
 
         
 
              IT IS FURTHER ORDERED that the costs of this action are 
 
         assessed against defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that this file be retained in an 
 
         active status to be scheduled for prehearing conference in 
 
         accordance with the prehearing order (B) filed November 16, 
 
         1989.
 
         
 
              Signed and filed this 23rd day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa  52632
 
                                                
 
                                                         
 
         
 
         Mr. Charles S. Lavorato
 
         Assistant Attorney General
 
         Tort Claim's Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
 
 
         
 
         
 
 
            
 
 
 
           
 
 
 
 
 
                                            1701, 3700
 
                                            Filed January 23, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         LAURETTA BELLER,
 
         
 
              Claimant,
 
                                                 File No. 799401
 
         vs.
 
                                                  R E V I E W -
 
         IOWA STATE PENITENTIARY,
 
                                                R E 0 P E N I N G
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1701
 
         
 
              It was held that the amount of credit allowed to an employer 
 
         for disability income payments made under a group plan is the net 
 
         amount which the employee realizes after any income taxes 
 
         attributable to the group disability income payments are deducted 
 
         from the total amount of payments actually paid.
 
         
 
              The amount of taxes is determined by computing the amount by 
 
         which the employee's income taxes were increased due to receipt 
 
         of the group disability income payments in comparison to what the 
 
         total income tax liability would be if the payments had been paid 
 
         in the form of nontaxable workers' compensation benefits.
 
         
 
         3700
 
         
 
              The amount of taxes attributable to group disability income 
 
         payments is a proper subject of expert testimony from a certified 
 
         public accountant, attorney or other income tax preparer who 
 
         demonstrates what portion of the total disability income payments 
 
         are consumed by the income taxes which are attributed to those 
 
         payments.