BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WESLEY BERNARD,
 
         
 
              Claimant,                          File Nos. 803729
 
                                                           846943
 
         vs.
 
                                              A R B I T R A T I O N
 
         WILSON FOODS CORPORATION,
 
                                                 D E C I S I O N
 
              Employer,
 
              Self-Insured,                        F I L E D
 
              Defendant.
 
                                                  JAN 11 1989
 
         
 
                                              INDUSTRIAL SERVICES
 
         
 
         
 
         
 
                               INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Wesley 
 
         Bernard, claimant, against Wilson Foods Corporation, employer, 
 
         and self-insured defendant, for benefits as the result of an 
 
         injury that occurred on August 23, 1985, when claimant was hit in 
 
         the right side of the head by a rack of hams (file no. 803729) 
 
         and an alleged injury on August 6, 1986, when claimant developed 
 
         carpal tunnel syndrome in the left hand or arm (file no. 846943).  
 
         A hearing was held in Storm Lake, Iowa, on November 1, 1988, and 
 
         the case was fully submitted at the close of the hearing.  The 
 
         record consists of the testimony of Wesley Bernard, claimant, and 
 
         joint exhibits 1 through 28.  Defendant's attorney submitted an 
 
         excellent brief.  Claimant's attorney did not file a brief.
 
         
 
                      STIPULATIONS-Injury of August 23, 1985
 
         
 
              The parties stipulated to the following matters:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on August 23, 1985, that 
 
         arose out of and in the course of his employment with employer.
 
         
 
              That the injury was the cause of temporary disability and 
 
         claimant is entitled to, and has been paid, temporary disability 
 
         benefits for the period from August 24, 1985 to September 8, 
 
         1985, and that temporary disability benefits.are no longer a 
 
         dispute in this case at this time.
 
         
 
                                                
 
                                                         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is September 9, 
 
         1985.
 
         
 
              That medical benefits for this injury are no longer in 
 
         dispute.
 
         
 
               That defendant claims no credit for benefits paid prior to 
 
         hearing from an employee nonoccupational group health plan.
 
         
 
              That defendant has paid 2 weeks and 2 days of temporary 
 
         workers' compensation benefits prior to hearing at the rate of 
 
         $190.31 per week but have not paid any permanent partial 
 
         disability benefits prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                         ISSUES-Injury of August 23, 1985
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of benefits.
 
         
 
                      STIPULATIONS-Injury of August 6, 1986
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is scheduled member 
 
         disability, but it is disputed as to whether it is to the hand or 
 
         to the arm.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $211.90 per week.
 
         
 
              That the provider of medical services would testify that the 
 
         fees charged are fair and reasonable and defendant is not 
 
         offering contrary evidence.
 
         
 
              That defendant claims no credit for employee nonoccupational 
 
         group health plan benefits paid prior to hearing or any workers' 
 
         compensation benefits paid prior to hearing.
 
         
 
                                                
 
                                                         
 
              That there are no bifurcated claims.
 
         
 
         ISSUES-Alleged injury of August 6, 1986
 
         
 
              The issues submitted by the parties for determination at the 
 
         time of the hearing are as follows:
 
         
 
              Whether claimant sustained an injury on August 6, 1986, 
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              Whether the injury was the cause of either temporary or 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits, and if so, the nature and extent 
 
         of benefits, to include whether the disability is to the hand or 
 
         to the arm.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all the evidence that was introduced, the following is a 
 
         summary of the evidence most pertinent to this decision.
 
         
 
              Claimant is 36 years old.  He graduated from high school in 
 
         1971.  He has no subsequent formal education or training.
 
         
 
              Claimant's past employments are construction, factory work, 
 
         welding, production employee and driving trucks and tractors.
 
         
 
              Claimant started to work for employer in May of 1985 on the 
 
         800 gang, which means, you go in or get called as work happens to 
 
         be available.  They only work off and on.  His various jobs were 
 
         packaging, slicing, cutting and boxing meat.  He also worked on 
 
         clean-up.  Claimant estimated that he only worked approximately 
 
         20 to 25 weeks from May of 1985 to December of 1985.  He 
 
         acknowledged that he only worked approximately two weeks in 
 
         January and February of 1986 and then another two weeks in July 
 
         and August of 1986.
 
         
 
              On August 23, 1985, claimant was running a saw slicing off 
 
         two pound chunks from a larger 20 pound piece of ham.  He was 
 
         standing at a table when another employee pushing a ham tree hit 
 
         him in the right side, sent his helmet flying, and laid his body 
 
         across the table.  The ham tree had three rows of hams in socks, 
 
         with approximately 20 to 30 socks of hams per row.  The hams 
 
         weigh approximately 20 to 30 pounds each.  Claimant estimated 
 
         that the ham tree weighed between 2,000 and 3,000 pounds.  The 
 
         full tree hit him a hard blow on his entire right side.
 
         
 
              Keith 0. Garner, M.D., the company physician, sent claimant 
 
         to the hospital for two days and then sent him to see Dean 
 
         Meylor, D.C., for treatments for two weeks.  After that, claimant 
 
                                                
 
                                                         
 
         continued to see his own chiropractor for three more weeks 
 
         because he was still having trouble in his neck.  Claimant 
 
         testified that he has continued to have a stiff neck and 
 
         headaches all of the time.  Dr. Garner told him that there was 
 
         nothing more that he could do.  Claimant testified that he was 
 
         told to take his pills and to go back to work.  Claimant 
 
         continued to work only sporadically for employer on the 800 gang 
 
         on an "as needed" basis. Claimant admitted that he had seen a 
 
         chiropractor for his neck prior to this injury because his neck 
 
         hurt from looking up all of the time at work.  Also, claimant 
 
         admitted to another strain injury in 1977 to his neck when he was 
 
         hospitalized for two days. Claimant testified that he has had 
 
         neck pain ever since this injury and has just had to get used to 
 
         it.
 
         
 
              Claimant said that this injury caused him to have dizziness 
 
         like the dizziness he felt when he was laying on the examination 
 
         table in the hospital.  Claimant said that approximately three 
 
         months after the injury he noticed that when he turns his head in 
 
         a certain way it causes the dizziness.  Claimant related that one 
 
         night he ended up in the hospital vomiting and could not walk. 
 
         When he moves his head to a certain position, his head starts 
 
         spinning.  There is pain at the base of the skull all of the time 
 
         like some one is pushing on it.  His head doesn't move like it 
 
         should from side to side. It feels like his neck is grinding and 
 
 
 
 
 
                               
 
                                                         
 
         pulling when he moves his head forward and backward.  Claimant 
 
         said that he stopped taking Darvocet and Motrin but he does take 
 
         aspirin for pain now.
 
         
 
              Early in 1986, the first week in 1986, claimant had trouble 
 
         with his right hand while making boxes in the wiener room.  He 
 
         had swelling and pain in his right hand after only one or two 
 
         days of work, which he had never had before.  He was treated 
 
         conservatively by Dr. Garner, and did lose some time from work. 
 
         In February of 1986, claimant was sent to see Scott B. Neff, 
 
         D.O., an orthopedic surgeon in Des Moines, who performed right 
 
         carpal tunnel surgery.  Claimant was not called back to work 
 
         until July of 1986.  Claimant settled the claim for the right 
 
         carpal tunnel on November 3, 1986 (Exhibit 26).  After claimant 
 
         returned to work in July of 1986, he worked for two weeks on the 
 
         loin line pulling the eyes out of loins.  In this job, claimant 
 
         operated a knife with his right hand.  With his left hand he 
 
         pulled the loin off of the line, put his fingers in the meat, 
 
         made certain cuts with his right hand, and then pulled 15 pounds 
 
         of meat loose from the belly and then packed the loin.  Claimant 
 
         testified that he did 175 of these per hour.  After a week, he 
 
         was transferred to another job where he transferred loins from 
 
         one box to another.
 
         
 
              Claimant testified that with respect to the alleged injury 
 
         of August 6, 1986, to his left hand or arm, he first noticed pain 
 
         on his second day back on the job.  At first he only had pain on 
 
         the job and then it began to feel numb at home at night. 
 
         Eventually, his left hand went numb on the job when he had to lay 
 
         the knife down and use his right hand to pull the meat loose from 
 
         the belly.  During his second week back on the job, he was unable 
 
         to sleep at night, even though he was not using his left hand to 
 
         pull the meat loose.
 
         
 
              Claimant testified that he did not work after August 10, 
 
         1986, for employer.  He also stated that he had no employment 
 
         away from the plant at this time.  He lived on rental income from 
 
         the farm he owns.  He stated that he did not work at home other 
 
         than to do dishes and to drive the tractor for his tenant.  
 
         Claimant testified that he was sent to see Dr. Neff in Des Moines 
 
         for his left hand.  Dr. Neff recommended carpal tunnel surgery on 
 
         the left hand.  Employer told claimant that the left carpal 
 
         tunnel surgery was not authorized.  Then, one day claimant's son 
 
         took a telephone call which instructed claimant to go to Des 
 
         Moines, but the child did not know who the call was from.  
 
         Claimant related that the plant nurse did not know what this was 
 
         all about, but told him to go to Des Moines and see what they 
 
         say.  Claimant said that the nurse in Des Moines knew that the 
 
         left carpal tunnel surgery was not authorized but thought that it 
 
         might be covered as a part of the previous injury to his neck.  
 
         Claimant admitted that he knew that Dr. Neff took a CT scan of 
 
         his neck and had determined that the neck was not causing the 
 
         left carpal tunnel syndrome to his hand.  Claimant said the nurse 
 
         in Des Moines contacted Dr. Neff and Dr. Neff told claimant that 
 
         he would perform the surgery. Claimant maintained that the 
 
                                                
 
                                                         
 
         admitting desk said that the surgery was authorized by Wilson's, 
 
         so claimant allowed Dr. Neff to perform the surgery.  Claimant 
 
         said that he clarified to the nurse in Des Moines that he did not 
 
         want the surgery unless it was authorized and the admission desk 
 
         told him it was alright.  Dr. Neff did perform the surgery in 
 
         December of 1986.
 
         
 
              Claimant related that in the fall of the 1986, he worked as 
 
         a semi-driver for Sioux Rapids Feed and Grain, approximately 20 
 
         to 30 hours a week when he was not working for employer.  
 
         Claimant said that he lost three to four weeks of work from Sioux 
 
         Rapids Feed and Grain due to the left carpal tunnel surgery.
 
         
 
              Claimant stated that after the surgery he wore wrist bands, 
 
         braces and splints.  He worked at whatever jobs he could find. 
 
         Since the left carpal tunnel surgery he does not have any staying 
 
         power with his left hand.
 
         
 
              Claimant examined the bills in exhibits 18 through 21 and 
 
         verified that they were all due to the left carpal tunnel 
 
         surgery. These were the amounts still due after his personal  
 
         insurance had paid what they would cover.  The remaining bills 
 
         are:
 
         
 
              Des Moines Anesthesiologist       $203.00
 
              Central Iowa Orthopedics            48.00
 
              Central Iowa Pathologists            8.00
 
              Iowa Lutheran Hospital              91.49
 
                           TOTAL                $350.49
 
         
 
              A review of the medical evidence follows.  Dr. Garner 
 
         verified that claimant received a traumatic injury at work on 
 
         August 23, 1985, of a concussion and cervical strain (Ex. 11 ).
 
         
 
              Claimant was hospitalized at Sioux Valley Memorial Hospital 
 
         from August 23, 1985 to August 25, 1985, for concussion, acute 
 
         cervical strain with complaints of vertigo, intermittent blurred 
 
         vision and headaches.  Claimant returned to the hospital on 
 
         August 27, 1985, complaining of increased stiffness in his neck, 
 
         occipital headaches and headaches behind the eyes.  Skull x-rays 
 
         and x-rays of the cervical spine were essentially normal except 
 
         the neuroforamena between C-3 and C-4 on the right side was 
 
         slightly narrowed (Ex. 16).
 
         
 
              Dr. Garner noted on September 6, 1985, that claimant was 
 
         still reporting neck pain and inability to sleep at night (Ex. 
 
         11, p. 1).  Dr. Garner noted on January 7, 1986, that claimant 
 
         still complained of headaches (Ex. 11, p. 3).
 
         
 
              At the time of claimant's right carpal tunnel examination on 
 
         February 4, 1986, a CT scan of claimant's cervical area was 
 
         normal (Ex. 6).  On September 10, 1986, Horst G. Blume, M.D., a 
 
         neurosurgeon, examined and evaluated claimant and stated that 
 
         claimant had a cervical disc syndrome which is responsible for 
 
         the impairment in the C-7 and C-8 nerve root distribution 
 
                                                
 
                                                         
 
         bilaterally. He cited the ham tree injury as the history for this 
 
         condition (Ex. 12).  Another CT scan performed by Dr. Neff on 
 
         December 9, 1986, showed no obvious disc abnormality.  (Ex. 9).
 
         
 
              On February 19, 1988, A. J. Wolbrink, M.D., an evaluation 
 
         physician, recited and appeared to accept the ham tree history. 
 
         Dr. Wolbrink concluded as follows:
 
         
 
              In my opinion, Mr. Bernard does have some residual muscular 
 
              neck pain and probably also has mild post-concussion 
 
              headaches as a result of his in jury.  In my opinion, he has 
 
              a permanent impairment of 4 percent of the whole person due 
 
              to residuals of the cervical spine and head injury.
 
         
 
         (Ex. 13, p. 2)
 
         
 
              A great deal of evidence is directed to whether claimant's 
 
         left-carpal tunnel surgery of August 6, 1986, was caused by 
 
         claimant's employment or was caused by something other than his 
 
         employment.  The exhibits demonstrate a prolonged dispute between 
 
         employer, claimant, Dr. Garner and Dr. Neff.  This dispute became 
 
         quite heated (Exs. 1-15).  The pertinent determinative evidence 
 
         on this issue is as follows:
 
         
 
              The workers' compensation director for employer, Larry 
 
         Flood, wrote to Dr. Neff on January 5, 1987 as follows:
 
         
 
              Dear Dr. Neff:
 
         
 
              RE:  Wes Bernard
 
         
 
              There still seems to be some confusion with Mr. Bernard's 
 
              left carpal tunnel syndrome.  I have enclosed a copy of Mr. 
 
              Bernard's work schedule for the last 53 weeks.  As you can 
 
              see he worked a total of 4 weeks and 1 day.  Six of those 
 
              days were prior to his right carpal tunnel surgery.  We do 
 
              not have a record of Mr. Bernard complaining of left wrist 
 
              problems at the same time his right hand surgery was done. 
 
              He states that you have documentation that the left wrist 
 
              condition existed at the same time of the right wrist.  Even 
 
              so, looking at his work record, would his left carpal tunnel 
 
              condition be due to his working 15 days, or would it 
 
              probably be due to his outside activities?
 
         
 
              There has definitely been some miscommunication in this 
 
              case. I hope this information will be helpful for you.
 
         
 
              Thank you for your time and professional opinion in this 
 
              case.
 
         
 
         (Ex. 27)
 
         
 
              Dr. Neff replied as follows:
 
         
 
              Att:  Larry Flood
 
                                                
 
                                                         
 
         
 
              RE:  Wes Bernard
 
         
 
              Thank you for your letter of January 5, 1987.  I apologize 
 
              for the delay in responding to your letter regarding Wes 
 
              Bernard.
 
         
 
              In my opinion, based on this documented work record, this 
 
              gentleman's left carpal tunnel syndrome was not the result 
 
              of his work activity, but the result of outside activities 
 
              away from Wilson Foods.
 
         
 
              Thank you for providing the work schedule.
 
         
 
         (Ex. 28)
 
         
 
              Dr. Blume did not specifically address the causal connection 
 
         issue in this case.  Claimant had not received the carpal tunnel 
 
         surgery as of the time he saw Dr. Blume.  In fact, he recommended 
 
         against it in September of 1986 (Ex. 12).
 
         
 
              Dr. Wolbrink assessed a 5 percent permanent impairment 
 
         rating for the left carpal tunnel surgery and resulting 
 
         condition, but indicated that it was predominantly due to or 
 
         necessitated by activities during the last six months of 1986.  
 
         Dr. Wolbrink's remarks are as follows:
 
         
 
              In my opinion, Mr. Bernard has a permanent impairment of 5 
 
              percent of the left upper extremity due to the residuals of 
 
              his carpal tunnel syndrome.  It is worthy of note that he 
 
              was tested and showed to have grip strength of 66 Kg. on 
 
              June 2, 1986, which compares with the 56 Kg. at present.  He 
 
              also does have the recurrent ganglion.  It would be my 
 
                                                     
 
                                                         
 
              further opinion that carpal tunnel syndrome surgery was 
 
              predominantly due to or necessitated by activities during 
 
              the last 6 months of 1986.  Some of the details of his work 
 
              history are in the letters and materials supplied to me.  
 
              However, I did not have actual report of hours worked at 
 
              which jobs during that period of time.
 
         
 
         (Ex. 13, p. 3)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of August 23, 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.  
 
         Sondaq v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              As a claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Functional disability is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Claimant sustained the burden of proof by a preponderance of 
 
         the evidence that he sustained an industrial disability which was 
 
                                                
 
                                                         
 
         caused by the injury of August 23, 1985, when he was struck in 
 
         the right side by the ham tree.
 
         
 
              This was an extremely traumatic accidental injury.  Claimant 
 
         was hit unawares by a 2,000 to 3,000 pound heavy moving object. 
 
         It knocked the helmet off his head.  His body was thrown forward 
 
         onto the work table.  Claimant was hospitalized for two days for 
 
         concussion, acute cervical strain, vertigo, and intermittent 
 
         blurred vision.  Claimant returned to the hospital a few days 
 
         later complaining of increased stiffness in his neck and 
 
         headaches (Ex. 16, p. 5).  Claimant reported to Dr. Garner on 
 
         September 6, 1985, that he had neck pain and could not sleep at 
 
         night (Ex. 11, p. 1).  Claimant testified that he continues to 
 
         have the same dizziness that he felt on the examination table at 
 
         the hospital. If his neck assumes a certain position it causes 
 
         dizziness.  At one time, he was hospitalized and was vomiting and 
 
         could not walk due to this dizziness.  When he moves his head 
 
         into a certain position his head starts spinning.  He has pain at 
 
         the base of the skull all of the time, like someone is pushing on 
 
         it.  His head doesn't move like it should from side to side.  He 
 
         feels grinding and pulling when he moves his head forward and 
 
         backward.  Even though Dr. Neff had a normal CT scan, on February 
 
         4, 1986, and again on December 9, 1986, (Exs. 6 & 9), 
 
         nevertheless, Dr. Blume and Dr. Wolbrink found validity in 
 
         claimant's complaints of cervical pain and headaches.  Dr. 
 
         Wolbrink found that claimant still has mild post-concussion 
 
         headaches as a result of this injury and stated that claimant had 
 
         a permanent impairment of 4 percent of the whole person due to 
 
         residuals of the cervical spine and head injury.
 
         
 
              Other than claimant's functional impairment to the body as a 
 
         whole, his earning capacity does not appear to be severely 
 
         diminished.  He has had difficulty finding permanent employment 
 
         both before and after his employment with employer.
 
         
 
              Based upon all of the foregoing considerations and all of 
 
         the factors that are used to determine industrial disability, it 
 
         is determined that claimant has sustained an industrial 
 
         disability of 5 percent of the body as a whole and is entitled to 
 
         25 weeks of permanent partial disability benefits.
 
         
 
              The next issue involves the alleged injury of August 6, 
 
         1986.
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(1).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on August 6, 1986, which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman, 261 
 
         Iowa 352, 154 N.W.2d 128.
 
         
 
              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).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained an injury to his 
 
         left hand or arm on August 6, 1986, which arose out of and in the 
 
         course of his employment with employer.  Claimant did not mention 
 
         his left carpal tunnel symptoms to Dr. Neff on February 4, 1986, 
 
         when he was examined for the right carpal tunnel condition.  
 
         There is no evidence of it in Dr. Garner's notes when the right 
 
         carpal tunnel was mentioned.  The first evidence of left carpal 
 
         tunnel appears in Dr. Garner's notes for the date August 6, 1986. 
 
         Claimant had only worked 4 weeks and 1 day for employer in all of 
 
         1986 (Ex. 25).  He left work in February of 1986 and did not 
 
         return to work until July of 1986 and noticed pain in his left 
 
         hand after only two days of employment.  Dr. Blume made no 
 
         statement about causal connection based upon this information. 
 
         Dr. Wolbrink qualified his causal connection statement by stating 
 
         that the left carpal tunnel syndrome surgery was predominantly 
 
         due to or necessitated by activities during the last six months 
 
         of 1986. Claimant only worked for employer approximately two 
 
         weeks in the last six months of 1986.  He only worked for 
 
         employer for approximately 20 weeks in 1985.  Dr. Neff, the 
 
         treating physician, rather definitively states that based on this 
 
         documented work record, this gentleman's left carpal tunnel 
 
         syndrome was not the result of his work activity, but the result 
 
         of outside activities away from Wilson Foods (Ex. 28).
 
         
 
              Therefore, it is determined that claimant did not sustain 
 
         the burden of proof by a preponderance of the evidence that the 
 
         alleged injury of August 6, 1986, arose out of and in the course 
 
         of his employment with employer.
 
         
 
                               FINDINGS OF FACT
 
         
 
              Wherefore, based upon the foregoing evidence the following 
 
         findings of facts are made.
 
         
 
              That the injury of August 23, 1985, was a traumatic injury 
 
         that caused a concussion, acute cervical strain, vertigo and 
 
         intermittent blurred vision.
 
         
 
              That claimant sought follow-up care for increased headaches, 
 
         neck aches and dizziness on several occasions after the initial 
 
         treatment.
 
         
 
              That claimant expresses continuing complaints of headaches, 
 
         neck aches and dizziness.
 
         
 
              That Dr. Wolbrink assessed a 4 percent permanent functional 
 
         impairment of the body as a whole due to this injury.
 
         
 
                                                
 
                                                         
 
              That claimant has sustained an industrial disability of 5 
 
         percent of the body as a whole.
 
         
 
              That claimant did not sustain an injury on August 6, 1986, 
 
         which arose out of and in the course of his employment with 
 
         employer.
 
         
 
              That claimant worked for employer for 20 weeks in 1985 and 
 
         expressed no problems with his left hand.
 
         
 
              That claimant worked for employer approximately two weeks in 
 
         January and February of 1986, claimed a right carpal tunnel 
 
         syndrome condition, received surgery for it and a settlement for 
 
         this injury but made no mention of any left carpal tunnel 
 
         complaints at this time.
 
         
 
              That claimant returned to work in July of 1986 and after two 
 
         days developed left carpal tunnel complaints.
 
         
 
              That Dr. Neff definitively stated that based on claimant's 
 
         documented work record his left carpal tunnel syndrome was not 
 
         the result of his work activity but was rather the result of 
 
         outside activities away from his employers work.
 
         
 
              That neither Dr. Blume nor Dr. Wolbrink specifically 
 
         addressed causal connection under the precise facts of this 
 
         case.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles previously discussed the following conclusions of law 
 
         are made.
 
                              
 
                                                         
 
         
 
              That claimant sustained an industrial disability of 5 
 
         percent of the body as a whole due to the injury of August 23, 
 
         1985.
 
         
 
              That claimant is entitled to 25 weeks of permanent partial 
 
         disability benefits for this injury.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he sustained a left carpal 
 
         tunnel syndrome injury on August 6, 1986, which arose out of and 
 
         in the course of his employment with employer.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant twenty-five (25) weeks of 
 
         permanent partial disability benefits at the rate of one hundred 
 
         ninety and 31/100 dollars ($190.31) per week in the total amount 
 
         of four thousand seven hundred fifty-seven and 75/100 dollars 
 
         ($4,757.75) commencing on September 9, 1985.
 
         
 
              That defendant pay this amount in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant is not entitled to a credit for any permanent 
 
         partial disability benefits paid prior to hearing.
 
         
 
              That no monies are due from defendant to claimant for the 
 
         alleged injury of August 6, 1986.
 
         
 
              That the costs of this action are charged against defendant
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 11th day of January, 1989.
 
         
 
                                   
 
                                       
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
 
 
                                                
 
 
            
 
 
 
 
 
                   
 
         
 
                                       1401, 1402.40, 1803, 1106,
 
                                       1108.50, 1401, 1402.20, 1402.30,
 
                                       1402.40, 1402.60, 2209
 
                                       Filed January 11, 1989
 
                                      WALTER R. McMANUS, JR.
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WESLEY BERNARD,
 
         
 
              Claimant,                             File Nos. 803729
 
                                                              846943
 
         vs.
 
                                                 A R B I T R A T I O N
 
         WILSON FOODS CORPORATION,
 
                                                    D E C I S I O N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1401, 1402.40, 1803
 
         
 
              Claimant was hit on right side by heavy rack of hams and 
 
         received a serious concussion, was hospitalized and lost time 
 
         from work.  Evaluating physician found 4 percent permanent 
 
         functional impairment.  Claimant awarded 5 percent industrial 
 
         disability for continuing residual problems.
 
         
 
         1106, 1108.50, 1401, 1402.20, 1402.30, 1402.40, 1402.60, 2209
 
         
 
              Left carpal tunnel syndrome and surgery which was first 
 
         reported after only 2 days of work was found not to be an injury 
 
         arising out and in the course of employment relying on the 
 
         treating physician's opinion.
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
        
 
 
 
 
 
        
 
        
 
        
 
                                     1401, 1402.40, 1803, 1106,
 
                                     1108.50, 1401, 1402.20, 1402.30,
 
                                     1402.40, 1402.60, 2209
 
                                     Filed January 11, 1989
 
                                      WALTER R. McMANUS, JR.
 
                                      
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                      
 
                                      
 
        WESLEY BERNARD,
 
        
 
            Claimant,                                           File 
 
        Nos. 803729
 
                                                                 846943
 
        vs.
 
                                                                          
 
        A R B I T R A T I O N
 
        WILSON FOODS CORPORATION,
 
                                                                 D E C I 
 
        S I O N
 
            Employer,
 
            Self-Insured,
 
            Defendant.
 
        
 
        
 
        1401, 1402.40, 1803
 
        
 
             Claimant was hit on right side by heavy rack of hams and 
 
             received a serious concussion, was hospitalized and lost time 
 
             from work. Evaluating physician found 4 percent permanent 
 
             functional impairment. Claimant awarded 5 percent industrial 
 
             disability for continuing residual problems.
 
        
 
        1106, 1108.50, 1401, 1402.20, 1402.30, 1402.40, 1402.60, 2209
 
        
 
             Left carpal tunnel syndrome and surgery which was first 
 
             reported after only 2 days of work was found not to be an injury 
 
             arising out and in the course of employment relying on the 
 
             treating physician's opinion.
 
             
 
        
 
 
            
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LEONARD F. LOVELL,            :
 
                                          :       File No. 803807
 
                 Claimant,                :
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            JOHN DEERE DUBUQUE WORKS,     :        D E C I S I O N
 
            OF DEERE & COMPANY,           :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by Leonard 
 
            F. Lovell, claimant, against John Deere Dubuque Works, 
 
            self-insured employer, defendant, to recover benefits under 
 
            the Iowa Workers' Compensation Act as a result of an injury 
 
            sustained on May 7, 1985.  This matter came on for hearing 
 
            before the undersigned deputy industrial commissioner on 
 
            July 22, 1993, in Dubuque, Iowa.  The record was considered 
 
            fully submitted at the close of the hearing.  The claimant 
 
            was present and testified.  Also present and testifying were 
 
            Margo Lovell, Mervin L. McClenahan, M.D., and Norman Homb.
 
            
 
                                      ISSUES
 
            
 
                 Pursuant to the hearing report and order approving same 
 
            dated  July 22, 1993, the parties have presented the 
 
            following issues for resolution:
 
            
 
                 1.  Whether claimant is entitled to permanent 
 
            disability benefits and, if so, the extent thereof; and,
 
            
 
                 2.  The commencement date for permanent partial 
 
            disability benefits, if any are awarded.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned has carefully considered all the 
 
            testimony given at the hearing, arguments made, evidence 
 
            contained in the exhibits herein, and makes the following 
 
            findings:
 
            
 
                 Claimant was born on March 28, 1939.  He commenced 
 
            working for John Deere on May 7, 1964.  He retired after 30 
 
            years with the company on June 30, 1992.
 
            
 
                 The parties stipulate that claimant slipped and fell 
 
            while performing his job duties on May 7, 1985, and injured 
 
            his left elbow and shoulder.  Claimant reported the incident 
 
            to Mervin L. McClenahan, M.D., company physician.  He 
 
            presented with pain, numbness and tingling radiating down 
 
            the forearm.  Abrasion and swelling of his left elbow was 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            noted.  He was sent to Mercy Hospital for observation and x-
 
            rays.  He returned to light duty the day after the incident 
 
            on May 8, 1985, and worked until September 4, 1985.  
 
            Claimant's condition progressively deteriorated and Dr. 
 
            McClenahan referred claimant to Scott C. McCuskey, M.D., an 
 
            orthopedist for evaluation.  On August 16, 1985, Dr. 
 
            McCuskey performed a single contrast arthrograpy which 
 
            showed no rotator cuff tear.  However, after exercise, 
 
            contrast was noted in the subacromial bursa which indicated 
 
            a rotator cuff tear (Exhibit 4, page 3).
 
            
 
                 On September 5, 1985, Dr. McCuskey admitted claimant to 
 
            Mercy Health Center where he performed an arthroscopy of the 
 
            left shoulder with debridement and stapling of the glenoid 
 
            capsule of the biceps tendon (Ex. 4, pp. 7-8).
 
            
 
                 Subsequent to surgery, claimant participated in 
 
            physical therapy.  On October 31, 1985, Dr. McCuskey 
 
            injected claimant's shoulder because his motion was quite 
 
            restricted and he had very little internal/external 
 
            rotation.  Dr. McCuskey diagnosed a frozen shoulder (Ex. 4, 
 
            p. 9).
 
            
 
                 Dr. McCuskey released claimant to return to work on 
 
            January 2, 1986.  He imposed a one month restriction on 
 
            lifting more than 20 pounds and working with arms overhead 
 
            or performing repeated circular motions or shoveling motions 
 
            of the arms (Ex. 4, p. 13).
 
            
 
                 Claimant's pain persisted and, in fact, became more 
 
            severe than prior to surgery.  Claimant was reexamined by 
 
            Dr. McCuskey and an x-ray was taken of his left shoulder.  
 
            This showed that a staple was out of place in the anterior 
 
            soft tissue of the shoulder.  Dr. McCuskey recommended 
 
            another surgery.  However, claimant requested a second 
 
            opinion from another orthopedist (Ex. 4, p. 18).
 
            
 
                 On April 4, 1986, claimant was examined by William G. 
 
            Clancy, Jr., M.D.  On examination, he was markedly point 
 
            tender over the rotator cuff tendons and on the posterior 
 
            aspect of his shoulder.  The arthrogram which he brought 
 
            with him was suggestive of a gross rotator cuff tear.  Dr. 
 
            Clancy scheduled claimant for a new arthrogram to confirm 
 
            the possibility of rotator cuff damage.  The arthrogram was 
 
            positive.  Dr. Clancy recommended rotator cuff repair 
 
            surgery and removal of the staple inserted by Dr. McCuskey 
 
            (Ex. 5, pp. 1-2).
 
            
 
                 On June 9, 1986, claimant underwent a Neer 
 
            acromyoplasty, CA ligament resection and rotator cuff 
 
            repair.  When examined by Dr. Clancy on December 19, 1986, 
 
            claimant had no problems whatsoever with his shoulders.  He 
 
            stated he was able to do all the activities he wanted to do 
 
            but was not able to return to work because the plant was 
 
            still on strike.  Dr. Clancy informed him that before he 
 
            would be able to return to work he would need to grade out 
 
            at least 80 percent on a Cybex evaluation of the shoulder 
 
            (Ex. 5, p. 3).
 
            
 
                 Claimant was off work from June 9, 19986 through 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            January 11, 1987.  He returned to work on January 12, 1987, 
 
            and worked until February 17, 1988.  On February 18, 1988, 
 
            claimant underwent staple removal due to pain over the site 
 
            of the staple in the intertubercular groove (Ex. 5, p. 6).
 
            
 
                 Claimant was off work from February 18, 1988 through 
 
            March 20, 1988.  He returned to work on March 21, 1988, and 
 
            worked until he retired on June 30, 1992.
 
            
 
                 On April 15, 1988, it was determined that claimant was 
 
            ready to resume full duties at John Deere.  Claimant 
 
            testified that he returned to the crankshaft line where he 
 
            resumed his usual and customary duties.  Claimant worked on 
 
            the crankshaft line until October 1991 when he had 
 
            nonwork-related back surgery.  Claimant did not return to 
 
            John Deere after back surgery in October 1991.
 
            
 
                 On February 27, 1989, Dr. Clancy saw claimant for a 
 
            final evaluation.  He felt that claimant had recovered well 
 
            from his rotator cuff repair however, due to the severity of 
 
            his injury, he assessed a 15 percent permanent partial 
 
            disability and advised against performing repetitive heavy 
 
            overhead activities (Ex. 6, p. 2).
 
            
 
                 On April 13, 1989, Dr. McClenahan, the company 
 
            physician, rated claimant's left shoulder.  Based on limited 
 
            range of motion testing, Dr. McClenahan gave claimant a 13 
 
            percent permanent partial impairment rating (Ex. 1, p. 27).
 
            
 
                 On February 27, 1992, John F. Orwin, assistant 
 
            professor at the University of Wisconsin, Division of 
 
            Orthopedic Surgery, reported that he had assumed claimant's 
 
            care in the sports medicine center and noted that claimant 
 
            continues to have pain and discomfort in his left shoulder 
 
            despite expensive physical therapy.  A repeat arthrogram was 
 
            unremarkable.  A bone scan showed some subtle degenerative 
 
            changes of the glenohumeral joint and some increased uptake 
 
            in the AC joint consistent with AC joint arthritis.  Dr. 
 
            Orwin stated that he informed claimant that he is a 
 
            candidate for diagnostic arthroscopy followed by redo 
 
            subacromial decompression an distal clavicle excision.  Dr. 
 
            Orwin stated that if claimant does not proceed with surgery 
 
            then his permanent partial disability is approximately 15 
 
            percent (Ex. 6, p. 1).
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 There is no dispute that claimant has an impairment to 
 
            the body as a whole and industrial disability has been 
 
            sustained.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, expe
 
            rience and inability to engage in employment for which the 
 
            employee is fitted.  Olson v. Goodyear Serv. Stores, 255 
 
            Iowa 1112, 125 N.W.2d 251 (1963); Barton v. Nevada Poultry, 
 
            253 Iowa 285, 110 N.W.2d 660 (1961).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial 
 
            disability.  Impairment and disability are not synonymous.  
 
            The degree of industrial disability can be much different 
 
            than the degree of impairment because industrial disability 
 
            references to loss of earning capacity and impairment 
 
            references to anatomical or functional abnormality or loss.  
 
            Although loss of function is to be considered and disability 
 
            can rarely be found without it, it is not so that a degree 
 
            of industrial disability is proportionally related to a 
 
            degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of the 
 
            healing period; the work experience of the employee prior to 
 
            the injury and after the injury and the potential for 
 
            rehabilitation; the employee's qualifications 
 
            intellectually, emotionally and physically; earnings prior 
 
            and subsequent to the injury; age; education; motivation; 
 
            functional impairment as a result of the injury; and 
 
            inability because of the injury to engage in employment for 
 
            which the employee is fitted.  Loss of earnings caused by a 
 
            job transfer for reasons related to the injury is also 
 
            relevant.  Likewise, an employer's refusal to give any sort 
 
            of work to an impaired employee may justify an award of 
 
            disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 
 
            (Iowa 1980).  These are matters which the finder of fact 
 
            considers collectively in arriving at the determination of 
 
            the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  Neither does a 
 
            rating of functional impairment directly correlate to a 
 
            degree of industrial disability to the body as a whole.  In 
 
            other words, there are no formulae which can be applied and 
 
            then added up to determine the degree of industrial 
 
            disability.  It therefore becomes necessary for the deputy 
 
            or commissioner to draw upon prior experience as well as 
 
            general and specialized knowledge to make the finding with 
 
            regard to degree of industrial disability.  See Christensen 
 
            v. Hagen, Inc., Vol. 1 No. 3 State of Iowa Industrial 
 
            Commissioner Decisions 529 (App. March 26, 1985); Peterson 
 
            v. Truck Haven Cafe, Inc., Vol. 1 No. 3 State of Iowa 
 
            Industrial Commissioner Decisions 654 (App. February 28, 
 
            1985).
 
            
 
                 Compensation for permanent partial disability shall 
 
            begin at the termination of the healing period.  
 
            Compensation shall be paid in relation to 500 weeks as the 
 
            disability bears to the body as a whole.  Section 85.34.
 
            
 
                 Claimant has received consistent functional impairment 
 
            ratings in the 15 percent range.  These ratings do not 
 
            equate to industrial disability.  In fact, industrial 
 
            disability can be much different than the degree of 
 
            impairment given by a medical evaluator because industrial 
 
            disability refers to loss of earning capacity and an 
 
            impairment rating refers to functional loss.  Many factors 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            are taken into consideration when determining loss of 
 
            earning capacity.  Certainly, claimant's medical condition 
 
            is not the same today as it was prior to the injury.  
 
            Claimant had a long and protracted interrupted healing 
 
            period due to the necessity for surgical intervention on 
 
            three separate occasions.  Without additional surgery, 
 
            claimant is probably as good as he ever is going to be with 
 
            regard to his shoulder.  Dr. Clancy imposed restrictions of 
 
            no repetitive heavy overhead activity.  Dr. McClenahan 
 
            agreed that claimant's injury weakened his arm and he is not 
 
            capable of heavy lifting.  Nevertheless, claimant was able 
 
            to return to work and perform the usual and customary duties 
 
            of a crankshaft line operator without restrictions or 
 
            accommodations.  This work, however, does not require 
 
            repetitive heavy overhead activities.  Claimant's injury did 
 
            not result in a loss of earnings.  Claimant voluntarily 
 
            retired on June 30, 1992, due to a combination of medical 
 
            and personal factors.  Claimant has chosen not to re-enter 
 
            the competitive job market.  He is not medically restricted 
 
            from working and at 54 years of age it is certainly 
 
            conceivable that claimant has at least 10 more working 
 
            years.  Claimant has made no job search since his retirement 
 
            in June of 1992.
 
            
 
                 Employers are responsible for the reduction in earning 
 
            capacity caused by the injury.  They are not responsible for 
 
            a loss of actual earnings because the employee resists or 
 
            refuses to return to work.  Williams v. Firestone Tire and 
 
            Rubber Co., III Iowa Indus. Comm'r Rep. 279 (1982).
 
            
 
                 Claimant was not forced to retire but chose to do so 
 
            because he thought he would enjoy it and, in fact, does 
 
            enjoy it.  Nevertheless, claimant, although near the end of 
 
            normal work life, is not at the end of normal work life.  
 
            Compared to a younger worker with the same injury, claimant 
 
            has lost less future earning capacity as a result of his 
 
            injury.  McClellan v. Midwest Biscuit Company, File No. 
 
            802020 (Iowa Indus. Appeal September 20, 1989).
 
            
 
                 Based upon the above factors and all of the factors 
 
            used to determine industrial disability, it is determined 
 
            that claimant has sustained a 20 percent industrial 
 
            disability to the body as a whole and is entitled to 100 
 
            weeks of permanent partial disability benefits.
 
            
 
                 The parties have stipulated that claimant received 
 
            healing period benefits during the periods of time he was 
 
            off work. Section 85.34(1) provides that healing period 
 
            benefits are payable to an injured worker who has suffered 
 
            permanent partial disability until (1) the worker has 
 
            returned to work; (2) the worker is medically capable of 
 
            returning to substantially similar employment; or (3) the 
 
            worker has achieved maximum medical recovery.  The healing 
 
            period can be considered the period during which there is a 
 
            reasonable expectation of improvement of the disabling 
 
            condition.  See Armstrong Tire & Rubber Co. v. Kubli, 312 
 
            N.W.2d 60 (Iowa Ct. App. 1981).  Healing period benefits can 
 
            be interrupted or intermittent.  Teel v. McCord, 394 N.W.2d 
 
            405 (Iowa 1986).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Healing period benefits can be interrupted or 
 
            intermittent.  Claimant is entitled to receive permanent 
 
            partial disability benefits commencing January 3, 1986 
 
            through June 8, 1986, from January 12, 1987 through February 
 
            17, 1988, and from March 21, 1988 and continuing until he 
 
            has received 100 weeks of benefits.  Claimant cannot receive 
 
            permanent partial disability benefits at the same time that 
 
            he receives healing period benefits.  Healing period 
 
            benefits are intended to replace lost wages while permanent 
 
            partial disability benefits are intended to compensate 
 
            claimant for the injury suffered.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits at the rate of 
 
            three hundred four and 51/100 dollars ($304.51) per week 
 
            commencing January 3, 1986.
 
            
 
                 That defendant receive credit for any benefits 
 
            previously paid.
 
            
 
                 That defendant pay accrued amounts in a lump sum.
 
            
 
                 That defendant pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendant pay costs pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendant file claim activity reports as required 
 
            by the agency pursuant to rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of August, 1993
 
            
 
            
 
            
 
            
 
                                          
 
                                       ________________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Michael J Coyle
 
            Mr Michael Shubatt
 
            Attorney at Law
 
            200 Security Bldg
 
            Dubuque IA 52001
 
            
 
            Mr Leo A McCarthy
 
            Ms Jennifer A Clemens
 
            222 Fischer Bldg
 
            P O Box 239
 
            Dubuque IA 52004-0239
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                              5-1802; 5-1803
 
                                              Filed August 4, 1993
 
                                              Jean M. Ingrassia
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            LEONARD F. LOVELL,            :
 
                                          :       File No. 803807
 
                 Claimant,                :
 
                                          :
 
            vs.                           :     A R B I T R A T I O N
 
                                          :
 
            JOHN DEERE DUBUQUE WORKS,     :        D E C I S I O N
 
            OF DEERE & COMPANY,           :
 
                                          :
 
                 Employer,                :
 
                 Self-Insured,            :
 
                 Defendant.               :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, a 54-year-old retired John Deere factory laborer, 
 
            found 20 percent industrially disabled due to a rotator cuff 
 
            tear and no restrictions after surgical intervention.  After 
 
            surgery, claimant returned to his usual and customary job 
 
            and retired after 30 years due a combination of work and 
 
            nonwork-related medical problems.
 
            
 
            5-1802
 
            Healing period benefits commenced the first day claimant was 
 
            off work due to his injury.
 
            
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
           
 
            DONALD KUIKEN,   
 
                        
 
                 Claimant,   
 
                        
 
            vs.         
 
                                                File No. 803877
 
            DIELEMAN CONSTRUCTION CO.,      
 
                                                  A P P E A L
 
                 Employer,   
 
                                                D E C I S I O N
 
            and         
 
                        
 
            WEST BEND MUTUAL INSURANCE      
 
            CO.,        
 
                        
 
                 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.
 
            
 
                                       ISSUES
 
            
 
            Those portions of the proposed agency decision pertaining to 
 
            issues not raised on appeal are adopted as a part of this 
 
            appeal decision.  Claimant states the following issues on 
 
            appeal:
 
            [W]hether the Deputy erred (1) in failing to find a causal 
 
            connection between Donald's injury and his emotional 
 
            problems, (2) in concluding Donald had sustained a 25 per 
 
            cent [sic] industrial disability, (3) in concluding Donald's 
 
            healing period ended March 31, 1987, (4) in denying Donald's 
 
            application for alternate care, and (5) in not assessing the 
 
            responsibility for payment of chiropractic and psychiatric 
 
            bills to Dieleman.
 
            
 
            Defendant states the following additional issue on 
 
            cross-appeal:  "The deputy erred in failing to award 
 
            employer and insurance carrier a credit of ten thousand one 
 
            hundred seventy five dollars ($10,175.00) on account of a 
 
            third party settlement."
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The findings of fact contained in the proposed agency 
 
            decision filed February 28, 1991 are adopted as set forth 
 
            below.  Segments designated by asterisks (*****) indicate 
 
            portions of the language from the proposed agency decision 
 
            that have been intentionally deleted and do not form a part 
 
            of this final agency decision.  Segments designated by 
 
            brackets ([ ]) indicate language that is in addition to the 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            language of the proposed agency decision.
 
            
 
                 Claimant is a 45-year-old male who completed the ninth 
 
            grade and left school to farm with his father.  He also 
 
            drove a truck doing various things on the side.  Claimant 
 
            left the farm in 1967 and drove a truck hauling machinery 
 
            and pulling an anhydrous tank.  He returned to farming as 
 
            his basic full-time job in 1981 or 1982, when his father 
 
            retired from farming.  Claimant continued farming until his 
 
            September 4, 1985 injury.  Claimant testified he had no 
 
            health problems, including psychiatric, prior to September 
 
            4, 1985.  He said he was taking no medication for emotional 
 
            problems prior to that date.  Claimant described his farming 
 
            arrangement with his father before and after September 4, 
 
            1985.
 
            
 
                 On September 4, 1985, claimant was blading dirt on a 
 
            state project with a tractor on behalf of defendant 
 
            employer, when his tractor slid on the slope and rolled over 
 
            on him.  Claimant broke his pelvis in three places and his 
 
            right arm, ruptured his lung and collectively received other 
 
            bruises.
 
            
 
                 Claimant described how his pain affected his life and 
 
            contends it affected his marriage.  He admitted he wanted 
 
            Dr. Lewis to hospitalize him so that he could put off the 
 
            divorce.  Claimant's wife left him in March 1986 and the 
 
            divorce trial was in December 1987.
 
            
 
                 Claimant acknowledged he has an antique tractor 
 
            collection and in the summer of 1986 took his tractor to an 
 
            antique show.  He contends he knew he was being followed and 
 
            that it bothered him.
 
            
 
                 Claimant contends he can do very little farming and 
 
            that his retired father must now do the real hard work or 
 
            claimant would have to hire it out.  Claimant admitted his 
 
            farm arrangement with his father is the same since 1982 and 
 
            his income from 1982 to the present has pretty much been the 
 
            same.  He also related that he did odd jobs in 1982 to 
 
            September 4, 1985.  Except for one attempt, he has not 
 
            looked for or obtained any other job since September 4, 
 
            1985.  He indicated he still deals in his toy and
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            antique collection.  He also indicated he has sold some of 
 
            his toys and antique items and has done some hauling for his 
 
            neighbors.  He indicated that they loaded the truck for him.  
 
            He said he did not file tax returns to reflect his income.
 
            
 
                 Defendants' Exhibit N, a video was shown in court and 
 
            claimant was asked certain questions as to what he was doing 
 
            as reflected on the video.  ***** Claimant earlier testified 
 
            how bad he is physically, the problems he has walking, 
 
            squatting, twisting and bending, and gave the impression 
 
            that he heavily relied on a cane.  Claimant did not have a 
 
            cane in the video and commented that he must have left it on 
 
            the ground behind the flatbed trailer.  *****
 
            
 
                 Jerry Lee Lewis, M.D., a psychiatrist, testified in 
 
            person that his first contact with claimant was on July 14, 
 
            1986, at which time claimant told him he felt depressed and 
 
            had thoughts of suicide.  He said claimant blamed his 
 
            marital problems and pain on his September 4, 1985 injury.
 
            
 
                 Dr. Lewis said that there was no evidence of claimant 
 
            receiving psychiatric treatment before July 1986.  He 
 
            related that claimant did have prior psychological problems.  
 
            At the time of claimant's first visit, the doctor was not 
 
            sure whether claimant's problems were in reaction to social 
 
            distress or something else.  Dr. Lewis saw claimant four or 
 
            five months later when claimant requested an open end 
 
            prescription for antidepressant drugs, which request the 
 
            doctor denied.
 
            
 
                 Claimant next saw the doctor in January 1987, and has 
 
            seen the doctor eight times since on a regular basis up to 
 
            the present.
 
            
 
                 Dr. Lewis opined claimant had an underlying personality 
 
            disorder and major depressant disorder.  The personality 
 
            disorder developed before claimant's adulthood, possibly 
 
            originating around age five and it is hard to maintain 
 
            balance in life not affected by stress.  He said claimant's 
 
            lifelong underlying problems can cause depression at any 
 
            time and has to do with an imbalance in the brain and may be 
 
            genetically inherited.  He emphasized people with a 
 
            personality disorder are more likely to get a major 
 
            depressive disorder.  The doctor opined that there is no 
 
            causal connection to claimant's September 4, 1985 injury and 
 
            his personality disorder but there is a causal connection to 
 
            claimant's major depressive disorder and his September 4, 
 
            1985 injury.  He also admitted the loss of a present 
 
            marriage can cause major depressive disorder and claimant 
 
            did have a failure of his marriage during this time.  The 
 
            doctor further admitted it is very difficult to determine 
 
            the cause of the major depressive
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            disorder.  He acknowledged that claimant's third divorce was 
 
            a big stressor and occurred at the same time claimant had 
 
            pain.  He said pain is subjective and the divorce is not.  
 
            He said claimant's divorce was a big factor in bringing 
 
            about claimant's disorder.
 
            
 
                 The doctor acknowledged claimant called him in December 
 
            1987 to send him to a hospital to prolong his divorce.  
 
            Claimant was very upset.  Claimant told the doctor his wife 
 
            took several of his things and he was very angry.  Dr. 
 
            Lewis' notes on December 14, 1987 and January 11, 1988 
 
            indicate claimant was doing better with the divorce over 
 
            (Def. Ex. G, pp. 11-12).
 
            
 
                 Later, the doctor seemed to indicate there was no 
 
            specific relationship to claimant's September 4, 1985 injury 
 
            but indicated people with a personality disorder don't 
 
            handle stress very well and an injury can aggravate it.  He 
 
            also acknowledged he has to rely on what the claimant tells 
 
            him.  He could not opine whether claimant's depressive 
 
            condition is permanent.
 
            
 
                 The doctor testified claimant attempts to manipulate 
 
            people until things are better for claimant.  The doctor 
 
            seemed to indicate that one reason he causally connected 
 
            claimant's depression to the injury and not his marital 
 
            problems is because claimant had other divorces.  The doctor 
 
            did not have any understanding whether claimant was 
 
            depressed after his first or second divorce.
 
            
 
                 Upon redirect examination, the doctor acknowledged 
 
            after considerable previous direct and cross-examining that 
 
            claimant's marital problems were spilling over into the 
 
            matter but he could not give out information due to 
 
            confidentiality of another patient.  It was evident to the 
 
            doctor as a result of his contact with the claimant that 
 
            claimant's marital situation was spilling over into the pain 
 
            issue.  It did not appear where or with whom the 
 
            confidentiality existed but claimant did not waive or was a 
 
            waiver obtained from anyone to help clear up this important 
 
            question.  The doctor also related that he had a vague 
 
            memory of a daughter or child of the claimant being confined 
 
            for substance abuse and its effect on the claimant's stress.
 
            
 
                 Carma Mitchell, a vocational rehabilitation consultant, 
 
            testified she was hired by claimant's attorney to do a 
 
            vocational rehabilitation report.  She related what claimant 
 
            told her which was basically what claimant contends in his 
 
            own testimony.  She opined claimant probably could not get a 
 
            regular job.  She agreed claimant is a self-employed farmer 
 
            but based strictly on what claimant told her, he is unable 
 
            to work full-time as a farmer.  She acknowledged claimant 
 
            was basically a self-employed farmer the three years before 
 
            his September 1985 injury.  She agreed she
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            relied on what claimant told her not what the doctor said 
 
            claimant could do.  She didn't consider the opinion of John 
 
            S. Koch, M.D., that claimant could return to road work April 
 
            1, 1987.  She indicated she didn't consider the doctor's 
 
            reports, but later seemed to possibly modify this response.  
 
            She admitted she never looked for a job for claimant and 
 
            claimant or claimant's attorney never asked her to look for 
 
            a job for claimant.  She emphasized she was paid to make an 
 
            evaluation and to testify.  She related she did not 
 
            personally observe claimant other than seeing him at the two 
 
            appointments claimant had with her.
 
            
 
                 Gay R. Anderson, M.D., an orthopedic surgeon, 
 
            psychiatrist and neurologist, testified by way of a 
 
            deposition on October 5, 1989.  The doctor is the medical 
 
            director of the Industrial Injury Clinic.  The doctor 
 
            described the purpose and nature of this clinic.  The clinic 
 
            did a three day evaluation on claimant, from October 22 
 
            through October 24, 1988.  The doctor described the various 
 
            tests performed on claimant.  The doctor indicated claimant 
 
            had a compression injury to his body resulting in various 
 
            fractures (Def. Ex. A, p. 7).  The doctor found no sclerotic 
 
            degenerative or arthritic changes in claimant's pelvis (Def. 
 
            A, p. 13).  The doctor opined claimant had healed his injury 
 
            in August 1988 and there was no functional impairment or 
 
            nerve damage.  Claimant had a very minor reduction in 
 
            elevation of the right shoulder.  Dr. Anderson opined 
 
            claimant had a 10 percent permanent impairment which 
 
            basically was attributed to the fact that claimant had a 
 
            pelvic fracture and residue (Def. Ex. A, p. 15).  The doctor 
 
            said claimant needed no more ongoing orthopedic or 
 
            chiropractic care.  The doctor said claimant tested at 
 
            borderline intellectual level.  This doctor also evaluated 
 
            claimant's psychologically.  He said claimant displayed 
 
            elements of depression, anger, passive, aggressive and 
 
            optional behavior, and displayed a rather dependent 
 
            histrionic and passive-aggressive personality structure 
 
            which he said is not caused by his accident (Def. Ex. A, p. 
 
            18).
 
            
 
                 The doctor emphasized the personality structure is 
 
            largely developed by age five and essentially fixed by the 
 
            end of adolescence.  He described the effect the claimant's 
 
            personality problems has on his overall attitude (Def. Ex. 
 
            A, p. 19).  He said claimant is manipulative and as a result 
 
            totally sandbagged his physical capacity test.  He said this 
 
            was also observed by others (Def. Ex. A, p. 21).  He related 
 
            claimant doesn't need a cane to ambulate and that claimant 
 
            carries his cane as a symbol and metaphor of his perceived 
 
            disability which in time is really a weapon of passive 
 
            aggression.  He said pain and disability are the classic and 
 
            primitive weapons of passive aggressive behavior.  He said 
 
            claimant's condition does not prevent a person from working.  
 
            He also related claimant's exaggerating behavior which 
 
            contrasted to the objective findings (Def. Ex. A, p. 24-28).  
 
            The doctor also felt claimant capable of performing work 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            according to his August 24, 1988 report (Claimant's Exhibit 
 
            4).  The doctor acknowledged that this injury and claimant's 
 
            subsequent problems that he at least perceived with the 
 
            insurance company have also contributed to his problems in 
 
            life adjustment (Def. Ex. A, p. 32).  He and the other 
 
            attending doctors issued a report (Def. Ex. H).
 
            
 
                 John S. Koch, M.D., wrote on September 6, 1988, that 
 
            claimant definitely would be able to return to his roadwork 
 
            occupation with some excessive ambulation restrictions and, 
 
            also, claimant could return to farming.  He also indicated 
 
            claimant's activities demonstrate physical capabilities over 
 
            and beyond what claimant alleges he is able to do (Def. Ex. 
 
            D).  Dr. Koch appears to question claimant's real medical 
 
            condition versus what claimant was observed in seeking 
 
            medical help (Def. Ex. E).
 
            
 
                 A report on January 5, 1987 by St. Luke's Hospital, 
 
            signed by Dr. Koch, indicated: "Physical therapy 
 
            consultation made for testing which demonstrated the 
 
            presence of malingering on the part of the patient and he 
 
            was advised of this and directed to discard his cane...." 
 
            (Def. Ex. I, p. 2).
 
            
 
                 Defendants' Exhibit M is a deposition of Attorney Paul 
 
            Thune, who represented West Bend Insurance Company, who was 
 
            also the insurance company in this case at bar.  He 
 
            testified that defendant insurance company waived its 
 
            workers' compensation lien it held under 85.22 but not its 
 
            right to a credit in a workers' compensation case.  He 
 
            emphasized this credit issue never came up in a discussion; 
 
            therefore, it could not have been agreed to.  Mr. Thune 
 
            wrote to claimant's attorney (Def. Ex. M).  Mr Thune 
 
            acknowledged in that letter that it could be found that the 
 
            waiver to a lien was a waiver as far as credit for future 
 
            payments.  There was no division of the proceeds as to what 
 
            it went for other than a general settlement in a personal 
 
            injury action asking for damages for various things 
 
            including pain, suffering, loss of consortium for he and his 
 
            wife.
 
            
 
                 Claimant's medical records show he incurred a pelvic 
 
            and midhumoral fracture as a result of his September 4, 1985 
 
            injury.  He was hospitalized approximately nineteen days 
 
            after first being taken to Iowa Methodist Hospital on 
 
            September 4, 1985 and later transferred to Pella Community 
 
            Hospital.
 
            
 
                 Claimant voluntarily admitted himself to the Iowa 
 
            Lutheran Hospital on July 8, 1986.  The record seems to 
 
            indicate he had a marital confrontation the day before with 
 
            his wife and stormed out of the house to a neighbor's house 
 
            requesting a gun to kill himself.  This report summary 
 
            suggests that claimant be referred to group therapy and 
 
            marriage counseling (Cl. Ex. 4(b).
 
            
 
                 On March 26, 1987, Dr. Koch's records reflect claimant 
 
            admits to having an emotional blow in the past week when his 
 
            wife left him and took all the furniture (Cl. Ex. 6(a), p. 
 
            10).  Also, see physical therapist notes (Cl. Ex. 7, p. 5).  
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            Dr. Koch also encouraged claimant to go into construction 
 
            work and continue the farm operation.  On May 28, 1987, Dr. 
 
            Koch mentioned claimant is depressed apparently for economic 
 
            reasons and worrying about medical bills not being paid and 
 
            a collection agency becoming involved.  He felt claimant had 
 
            reacted to depression, an outgrowth of the accident (Cl. Ex. 
 
            6, p. 10).  On June 16, 1987, Dr. Koch opined claimant had a 
 
            25 percent impairment (Cl. Ex. 6(b).  It appears claimant 
 
            can control his depression whatever the cause, by taking his 
 
            medicine in doses prescribed by the doctor (Cl. Ex. 9).
 
            
 
                 Scott B. Neff, M.D., an orthopedic surgeon, testified 
 
            by way of his deposition on June 21, 1989 (Cl. Ex. 10), that 
 
            his first contact with claimant was March 13, 1989.  He 
 
            described the various tests he performed on claimant.  He 
 
            found claimant had restricted right arm movement and a break 
 
            and disruption in his pelvis and sacroiliac joint.  Based on 
 
            claimant's history, he causally connected claimant's 
 
            condition to his September 4, 1985 injury.  Dr. Neff 
 
            indicated claimant would always have some pain in the 
 
            sacroiliac joint region due to the nature of this type of 
 
            pelvic fracture and the nature of the pelvic and S1 joint 
 
            itself (Cl. Ex. 10, p. 14-16).  He indicated claimant would 
 
            be employable only in a sedentary light work class (Cl. Ex. 
 
            10(b), p. 19).
 
            
 
                 Dr. Neff agreed to the 15 percent permanent impairment 
 
            rating that Thomas Bower, physical therapist, gave claimant 
 
            based on claimant's pubic symphysic separation (pelvic 
 
            injury) (Cl. Ex. 10(b), p. 39).  Dr. Neff further opined 
 
            that claimant's total permanent impairment was 30 percent 
 
            including the additional lumbar spine loss of motion and the 
 
            right upper extremity.  It appears the doctor did not have 
 
            the information of what claimant's activities were at the 
 
            time of claimant's examination and history being taken by 
 
            him.
 
            
 
                 Gary a. Derby, D.C., issued a report on October 20, 
 
            1990 (Cl. Ex. 12(c).  Claimant went to him, it appears, 
 
            beginning in February 1990, shortly before claimant went to 
 
            Dr. Neff, an orthopedic surgeon.  It is this chiropractic 
 
            bill to which defendants are objecting.
 
            
 
                 Claimant has seen various doctors.  He went to Dr. 
 
            Derby for evaluation and treatment but he has gone to 
 
            several other doctors also.  There is a limit to how many 
 
            doctors claimant can go to at the expense of defendants.  
 
            Claimant can seek the services of as many doctors as he 
 
            wants but that does not mean he can have someone else pay 
 
            for all of them.  It is found that claimant is obligated to 
 
            pay Dr. Derby's bills.  Dr. Derby was not authorized.  *****
 
            
 
                 It is found that the claimant did receive some 
 
            permanent impairment in an injury arising out of and in the 
 
            course of his employment on September 4, 1985, and obviously 
 
            defendants believe he did also.  Claimant is exaggerating 
 
            his problems and symptoms and the medical records in several 
 
            instances reflect the same conclusion by various treating 
 
            medical personnel.  Claimant has obvious mental disorders.  
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            He had a mental personality disorder for years prior to his 
 
            September 4, 1985 injury.  The record seems to indicate 
 
            claimant wasn't bothered or being treated by any mental 
 
            problem before September 4, 1985.  The question arises 
 
            whether claimant's September 4, 1985 injury materially 
 
            accelerated or lighted up a preexisting condition for which 
 
            the defendants are liable.  The mind and brain are complex 
 
            and often mysterious in their operation.  Although Dr. Lewis 
 
            tends to causally connect one of claimant's disorders to his 
 
            September 4, 1985 injury, taking his testimony as a whole 
 
            leaves serious doubt.  Dr. Lewis seems to downplay 
 
            claimant's marital problems as resulting in stress that was 
 
            or could be a big or bigger problem affecting claimant's 
 
            mental stability leading to many of claimant's current 
 
            problems.  The doctor seems to feel that, since claimant did 
 
            not have similar problems after his first and second 
 
            divorce, his mental disorders are the result of or were not 
 
            activated by his third divorce.  *****  Claimant has the 
 
            burden of proof by the preponderance of the evidence to show 
 
            claimant's psychiatric problems and psychiatric and 
 
            accompanying drug bills are causally connected to claimant's 
 
            September 4, 1985 injury.
 
            
 
                 Taking all the medical testimony and records into 
 
            consideration, it is found that claimant has failed in his 
 
            burden.  Claimant is responsible for his psychiatric bills 
 
            and care and his drug bills connected therewith.
 
            
 
                 Claimant is farming and making basically the same 
 
            amount of money proportionately as he was making at the time 
 
            of his injury.  ***** It may have helped if claimant's 
 
            father had testified to determine if claimant is, in fact, 
 
            doing no heavy work and that his father has returned from 
 
            retirement to do the heavy work for claimant or having 
 
            someone else do it.
 
            
 
                 The video (Def. Ex. N) raises serious questions as to 
 
            claimant's credibility.  The outside work claimant did 
 
            appears to be off and on and nothing certain.  It is obvious 
 
            claimant relies on farming for his income.  It appears to 
 
            date claimant's injury has basically not affected his 
 
            income.  The job he was doing at the time of his September 
 
            4, 1985 injury was an isolated job and was to last only a 
 
            few weeks.  There were no assurances that similar jobs were 
 
            to be expected in the future.  Claimant does have a loss of 
 
            earning capacity due to the nature of his September 4, 1985 
 
            injury to his pelvis and upper right extremity and his 
 
            resulting impairment.
 
            
 
                 Taking into consideration claimant's age, education, 
 
            medical, work history, motivation, impairment, healing 
 
            period, income and any other criteria used in determining 
 
            claimant's industrial disability, it is found that claimant 
 
            has a 25 percent industrial disability.
 
            
 
                 As to claimant's healing period, claimant contends his 
 
            healing period is September 4, 1985 through June 1, 1989.  
 
            Defendants contend it is September 4, 1985 up to and not 
 
            including April 1, 1987.  Claimant's Exhibit 6(a), page 10, 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            shows that Dr. Koch seems to indicate claimant should go 
 
            into the construction business work if he can find a job and 
 
            continue farming.  Claimant's healing period is September 4, 
 
            1985 up to and not including April 1, 1987, amounting to 
 
            81.857 weeks.
 
            
 
                 As to the issue of 86.13 benefits, claimant has failed 
 
            to carry his burden of proof as to showing defendants 
 
            delayed commencement or terminated benefits without 
 
            reasonable or probable cause or excuse.
 
            
 
                 As to the issue of defendants receiving credit for the 
 
            $20,000 claimant received in a third party settlement, it 
 
            appears this lump sum settlement included other factors that 
 
            are not compensable damages in a workers' compensation 
 
            action.  Claimant's wife was also a party to that suit and 
 
            settlement.  There is no breakdown of the payment as to what 
 
            is specifically apportioned to certain damages.  In other 
 
            words, how much for pain and suffering, loss of consortium, 
 
            future medical, etc.
 
            
 
                 The attorney representing the insurance company, which 
 
            is the same insurance company in the case at bar, 
 
            acknowledged defendant insurance company waived its right to 
 
            a lien as to this workers' compensation case but there was 
 
            no mention made as to waiving the credit.  This attorney did 
 
            admit in a letter (Dep. Ex. 1, Def. Ex. M) that one could 
 
            argue that waiving the lien could be found to be waiving 
 
            credit.  It would appear that this should have been 
 
            discussed and decided and not left hanging.  Defendants are 
 
            raising the credit issue.  Defendants could have nailed this 
 
            down in the third party settlement if it wasn't their intent 
 
            to waive the credit when they waived the lien in order to 
 
            get the third party action settled.  Defendants are not 
 
            entitled to credit for any of the $20,000 against claimant's 
 
            recovery herein.  Even if a credit were allowed, the maximum 
 
            amount of credit allowed would be after attorney fees and 
 
            certain costs were deducted.  The parties agreed that the 
 
            maximum credit, if credit were to be given, would only be 
 
            $10,175, which is the net amount after certain attorney fees 
 
            and costs are deducted from the $20,000.
 
            
 
                 [Although the case of Higgins v. Peterson, II Iowa 
 
            Industrial Commissioner Report 199 (Appeal Decision, 1982) 
 
            addresses the situation where the exact terms of a waiver of 
 
            lien and credit are not properly detailed by the parties, 
 
            this issue is moot in light of Fisher v. Keller Industries, 
 
            485 N.W.2d 626 (Iowa 1992).  Defendants are not entitled to 
 
            a credit for future, unaccrued benefits.]
 
            
 
                               CONCLUSIONS OF LAW
 
            
 
            The conclusions of law contained in the proposed agency 
 
            decision filed February 28, 1991 are adopted as final agency 
 
            action.
 
            
 
            WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                     ORDER
 
            
 
            THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred fifty-one and 03/100 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            dollars ($251.03) for the period beginning September 4, 1985 
 
            up to and not including April 1, 1987, amounting to 
 
            eighty-two (82) weeks.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial benefits at the 
 
            rate of two hundred fifty-one and 03/100 dollars ($251.03) 
 
            beginning April 1, 1987.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties have 
 
            stipulated that the defendants have paid one hundred 
 
            seventy-nine point two eight six (179.286) weeks at two 
 
            hundred fifty one and 03/100 dollars ($251.03) per week.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that defendants have paid one hundred seventy-nine point two 
 
            eight six (179.286) weeks at two hundred fifty-one and 
 
            03/100 dollars ($251.03).
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            That claimant and defendants shall share equally the costs 
 
            of the appeal including transcription of the hearing.  
 
            Defendants shall pay all other costs.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            Signed and filed this ____ day of May, 1993.
 
            
 
            
 
            
 
            
 
                                      ________________________________
 
                                              BYRON K. ORTON
 
                                         INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Steven C. Jayne
 
            Attorney at Law
 
            5835 Grand Ave.,  Ste 201
 
            Des Moines, IA 50312
 
            
 
            Ms. Vicki L. Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 East Third St.
 
            Davenport, IA 52801
 
            
 
            Mr. John E. Billingsley
 
            Attorney at Law
 
            121 1st St. S
 
            Newton, IA 50208
 
            
 
 
         
 
 
 
 
 
                                  1108.20; 1704; 1803; 2206; 2503; 
 
                                  5-1802; 5-2503; 5-2700; 5-4000
 
                                  Filed May 27, 1993
 
                                  BYRON K. ORTON
 
                   
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         ____________________________________________________________
 
                                       :
 
         DONALD KUIKEN,                :
 
                                       :
 
              Claimant,                :
 
                                       :
 
         vs.                           :
 
                                       :       File No. 803877
 
         DIELEMAN CONSTRUCTION CO.,    :
 
                                       :         A P P E A L
 
              Employer,                :
 
                                       :       D E C I S I O N
 
         and                           :
 
                                       :
 
         WEST BEND MUTUAL INSURANCE    :
 
         CO.,                          :
 
                                       :
 
              Insurance Carrier,       :
 
              Defendants.              :
 
         ___________________________________________________________
 
         
 
         1803; 5-1802
 
         Found claimant incurred a 25 percent industrial disability by her 
 
         work injury.  Claimant also awarded healing period but for a 
 
         lesser period of time than requested.
 
         
 
         1108.20; 2206; 2503
 
         
 
         Found claimant's psychiatric problems, personality disorder and 
 
         major depressive disorder were not caused by and were not 
 
         substantially and materially aggravated by claimant's work 
 
         injury.  Claimant is responsible for his psychiatric, medical and 
 
         drug bills
 
         
 
         5-2503
 
         Found claimant responsible for his chiropractic bills.
 
         
 
         5-2700
 
         Found claimant not entitled to alternate care.
 
         
 
         5-4000
 
         Found claimant not entitled to 86.13 penalty benefits.
 
         
 
         1704
 
         Defendants argued on appeal that they had waived an 85.22 lien, 
 
         but not the credit against the third party recovery for future 
 
         benefits.  Held that this issue was moot in light of Fisher v. 
 
         Keller Industries. 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD KUIKEN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 803877
 
            DIELEMAN CONSTRUCTION CO.,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WEST BEND MUTUAL INSURANCE    :
 
            CO.,                          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                               statment of the case
 
            
 
                 This case came on for hearing on February 4, 1991, in 
 
            Des Moines, Iowa.   This is a proceeding in arbitration 
 
            wherein claimant seeks medical, healing period and permanent 
 
            partial disability benefits as a result of an alleged injury 
 
            occurring on September 4, 1985.  The record in the 
 
            proceeding consists of the testimony of claimant, Jerry Lee 
 
            Lewis, M.D., Dennis Dieleman and Carma Mitchell; claimant's 
 
            exhibits 1 through 13, 14(c), 14(d) and 15; and defendants' 
 
            exhibits A through N.
 
            
 
                                      issues
 
            
 
                 The issues for resolution are:
 
            
 
                 1.  Whether claimant's alleged extent of his disability 
 
            is causally connected to his September 4, 1985 injury;
 
            
 
                 2.  The nature and extent of claimant's disability and 
 
            entitlement to disability benefits;
 
            
 
                 3.  Claimant's entitlement to 85.27 medical benefits, 
 
            as to authorization, reasonableness and necessity;
 
            
 
                 4.  Causal connection as to the chiropractor bill in 
 
            the amount of $1,452, the drug bill in the amount of $382.61 
 
            and the psychiatrist bills;
 
            
 
                 5.  Whether claimant is entitled to alternate care;
 
            
 
                 6.  Whether claimant is entitled to 86.13(4) penalty 
 
            benefits; and,
 
            
 
                 7.  Whether defendants are entitled to a $20,000 credit 
 
            under 85.22 as to third party recovery amounts received by 
 
            claimant.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy having heard the testimony and 
 
            considered all the evidence finds that:
 
            
 
                 Claimant is a 45-year-old male who completed the ninth 
 
            grade and left school to farm with his father.  He also 
 
            drove a truck doing various things on the side.  Claimant 
 
            left the farm in 1967 and drove a truck hauling machinery 
 
            and pulling an anhydrous tank.  He returned to farming as 
 
            his basic full-time job in 1981 or 1982, when his father 
 
            retired from farming.  Claimant continued farming until his 
 
            September 4, 1985 injury.  Claimant testified he had no 
 
            health problems, including psychiatric, prior to September 
 
            4, 1985.  He said he was taking no medication for emotional 
 
            problems prior to that date.  Claimant described his farming 
 
            arrangement with his father before and after September 4, 
 
            1985.
 
            
 
                 On September 4, 1985, claimant was blading dirt on a 
 
            state project with a tractor on behalf of defendant 
 
            employer, when his tractor slid on the slope and rolled over 
 
            on him.  Claimant broke his pelvis in three places and his 
 
            right arm, ruptured his lung and collectively received other 
 
            bruises.
 
            
 
                 Claimant described how his pain affected his life and 
 
            contends it affected his marriage.  He admitted he wanted 
 
            Dr. Lewis to hospitalize him so that he could put off the 
 
            divorce.  Claimant's wife left him in March 1986 and the 
 
            divorce trial was in December 1987.
 
            
 
                 Claimant acknowledged he has an antique tractor 
 
            collection and in the summer of 1986 took his tractor to an 
 
            antique show.  He contends he knew he was being followed and 
 
            that it bothered him.
 
            
 
                 Claimant contends he can do very little farming and 
 
            that his retired father must now do the real hard work or 
 
            claimant would have to hire it out.  Claimant admitted his 
 
            farm arrangement with his father is the same since 1982 and 
 
            his income from 1982 to the present has pretty much been the 
 
            same.  He also related that he did odd jobs in 1982 to 
 
            September 4, 1985.  Except for one attempt, he has not 
 
            looked for or obtained any other job since September 4, 
 
            1985.  He indicated he still deals in his toy and antique 
 
            collection.  He also indicated he has sold some of his toys 
 
            and antique items and has done some hauling for his 
 
            neighbors.  He indicated that they loaded the truck for him.  
 
            He said he did not file tax returns to reflect his income.
 
            
 
                 Defendants' Exhibit N, a video was shown in court and 
 
            claimant was asked certain questions as to what he was doing 
 
            as reflected on the video.  It was obvious claimant was 
 
            reluctant to admit what he was doing and the extent of his 
 
            actions.  Claimant earlier testified how bad he is 
 
            physically, the problems he has walking, squatting, twisting 
 
            and bending, and gave the impression that he heavily relied 
 
            on a cane.  Claimant did not have a cane in the video and 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            commented that he must have left it on the ground behind the 
 
            flatbed trailer.  Claimant's comments and his demeanor left 
 
            serious doubt as to his credibility.  In most instances it 
 
            was obvious what he was doing but he was reluctant to admit 
 
            to certain squatting and bending actions he was doing.  The 
 
            video appeared contradictory to the impression he left 
 
            during his direct testimony.
 
            
 
                 Jerry Lee Lewis, M.D., a psychiatrist, testified in 
 
            person that his first contact with claimant was on July 14, 
 
            1986, at which time claimant told him he felt depressed and 
 
            had thoughts of suicide.  He said claimant blamed his 
 
            marital problems and pain on his September 4, 1985 injury.
 
            
 
                 Dr. Lewis said that there was no evidence of claimant 
 
            receiving psychiatric treatment before July 1986.  He 
 
            related that claimant did have prior psychological problems.  
 
            At the time of claimant's first visit, the doctor was not 
 
            sure whether claimant's problems were in reaction to social 
 
            distress or something else.  Dr. Lewis saw claimant four or 
 
            five months later when claimant requested an open end 
 
            prescription for antidepressant drugs, which request the 
 
            doctor denied.
 
            
 
                 Claimant next saw the doctor in January 1987, and has 
 
            seen the doctor eight times since on a regular basis up to 
 
            the present.
 
            
 
                 Dr. Lewis opined claimant had an underlying personality 
 
            disorder and major depressant disorder.  The personality 
 
            disorder developed before claimant's adulthood, possibly 
 
            originating around age five and it is hard to maintain 
 
            balance in life not affected by stress.  He said claimant's 
 
            lifelong underlying problems can cause depression at any 
 
            time and has to do with an imbalance in the brain and may be 
 
            genetically inherited.  He emphasized people with a 
 
            personality disorder are more likely to get a major 
 
            depressive disorder.  The doctor opined that there is no 
 
            causal connection to claimant's September 4, 1985 injury and 
 
            his personality disorder but there is a causal connection to 
 
            claimant's major depressive disorder and his September 4, 
 
            1985 injury.  He also admitted the loss of a present 
 
            marriage can cause major depressive disorder and claimant 
 
            did have a failure of his marriage during this time.  The 
 
            doctor further admitted it is very difficult to determine 
 
            the cause of the major depressive disorder.  He acknowledged 
 
            that claimant's third divorce was a big stressor and 
 
            occurred at the same time claimant had pain.  He said pain 
 
            is subjective and the divorce is not.  He said claimant's 
 
            divorce was a big factor in bringing about claimant's 
 
            disorder.
 
            
 
                 The doctor acknowledged claimant called him in December 
 
            1987 to send him to a hospital to prolong his divorce.  
 
            Claimant was very upset.  Claimant told the doctor his wife 
 
            took several of his things and was very angry.  Dr. Lewis' 
 
            notes on December 14, 1987 and January 11, 1988 indicate 
 
            claimant was doing better with the divorce over (Def. Ex. G, 
 
            pp. 11-12).
 
            
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 Later, the doctor seemed to indicate there was no 
 
            specific relationship to claimant's September 4, 1985 injury 
 
            but indicated people with a personality disorder don't 
 
            handle stress very well and an injury can aggravate it.  He 
 
            also acknowledged he has to rely on what the claimant tells 
 
            him.  He could not opine whether claimant's depressive 
 
            condition is permanent.
 
            
 
                 The doctor testified claimant attempts to manipulate 
 
            people until things are better for claimant.  The doctor 
 
            seemed to indicate that one reason he causally connected 
 
            claimant's depression to the injury and not his marital 
 
            problems is because claimant had other divorces.  The doctor 
 
            did not have any understanding whether claimant was 
 
            depressed after his first or second divorce.
 
            
 
                 Upon redirect examination, the doctor acknowledged 
 
            after considerable previous direct and cross-examining that 
 
            claimant's marital problems were spilling over into the 
 
            matter but he could not give out information due to 
 
            confidentiality of another patient.  It was evident to the 
 
            doctor as a result of his contact with the claimant that 
 
            claimant's marital situation was spilling over into the pain 
 
            issue.  It did not appear where or with whom the 
 
            confidentiality existed but claimant did not waive or was a 
 
            waiver obtained from anyone to help clear up this important 
 
            question.  The doctor also related that he had a vague 
 
            memory of a daughter or child of the claimant being confined 
 
            for substance abuse and its effect on the claimant's stress.
 
            
 
                 Carma Mitchell, a vocational rehabilitation consultant, 
 
            testified she was hired by claimant's attorney to do a 
 
            vocational rehabilitation report.  She related what claimant 
 
            told her which was basically what claimant contends in his 
 
            own testimony.  She opined claimant probably could not get a 
 
            regular job.  She agreed claimant is a self-employed farmer 
 
            but based strictly on what claimant told her, he is unable 
 
            to work full-time as a farmer.  She acknowledged claimant 
 
            was basically a self-employed farmer the three years before 
 
            his September 1985 injury.  She agreed she relied on what 
 
            claimant told her not what the doctor said claimant could 
 
            do.  She didn't consider the opinion of John S. Koch, M.D., 
 
            that claimant could return to road work April 1, 1987.  She 
 
            indicated she didn't consider the doctor's reports, but 
 
            later seemed to possibly modify this response.  She admitted 
 
            she never looked for a job for claimant and claimant or 
 
            claimant's attorney never asked her to look for a job for 
 
            claimant.  She emphasized she was paid to make an evaluation 
 
            and to testify.  She related she did not personally observe 
 
            claimant other than seeing him at the two appointments 
 
            claimant had with her.
 
            
 
                 Gay R. Anderson, M.D., an orthopedic surgeon, 
 
            psychiatrist and neurologist, testified by way of a 
 
            deposition on October 5, 1989.  The doctor is the medical 
 
            director of the Industrial Injury Clinic.  The doctor 
 
            described the purpose and nature of this clinic.  The clinic 
 
            did a three day evaluation on claimant, from October 22 
 
            through October 24, 1988.  The doctor described the various 
 
            tests performed on claimant.  The doctor indicated claimant 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            had a compression injury to his body resulting in various 
 
            fractures (Def. Ex. A, p. 7).  The doctor found no sclerotic 
 
            degenerative or arthritic changes in claimant's pelvis (Def. 
 
            A, p. 13).  The doctor opined claimant had healed his injury 
 
            in August 1988 and there was no functional impairment or 
 
            nerve damage.  Claimant had a very minor reduction in 
 
            elevation of the right shoulder.  Dr. Anderson opined 
 
            claimant had a 10 percent permanent impairment which 
 
            basically was attributed to the fact that claimant had a 
 
            pelvic fracture and residue (Def. Ex. A, p. 15).  The doctor 
 
            said claimant needed no more ongoing orthopedic or 
 
            chiropractic care.  The doctor said claimant tested at 
 
            borderline intellectual level.  This doctor also evaluated 
 
            claimant's psychologically.  He said claimant displayed 
 
            elements of depression, anger, passive, aggressive and 
 
            optional behavior, and displayed a rather dependent 
 
            histrionic and passive-aggressive personality structure 
 
            which he said is not caused by his accident (Def. Ex. a, p. 
 
            18).
 
            
 
                 The doctor emphasized the personality structure is 
 
            largely developed by age five and essentially fixed by the 
 
            end of adolescence.  He described the effect the claimant's 
 
            personality problems has on his overall attitude (Def. Ex. 
 
            A, p. 19).  He said claimant is manipulative and as a result 
 
            totally sandbagged his physical capacity test.  He said this 
 
            was also observed by others (Def. Ex. A, p. 21).  He related 
 
            claimant doesn't need a cane to ambulate and that claimant 
 
            carries his cane as a symbol and metaphor of his perceived 
 
            disability which in time is really a weapon of passive 
 
            aggression.  He said pain and disability are the classic and 
 
            primitive weapons of passive aggressive behavior.  He said 
 
            claimant's condition does not prevent a person from working.  
 
            He also related claimant's exaggerating behavior which 
 
            contrasted to the objective findings (Def. Ex. A, p. 24-28).  
 
            The doctor also felt claimant capable of performing work 
 
            according to his August 24, 1988 report (Claimant's Exhibit 
 
            4).  The doctor acknowledged that this injury and claimant's 
 
            subsequent problems that he at least perceived with the 
 
            insurance company have also contributed to his problems in 
 
            life adjustment (Def. Ex. A, p. 32).  He and the other 
 
            attending doctors issued a report (Def. Ex. H).
 
            
 
                 John S. Koch, M.D., wrote on September 6, 1988, that 
 
            claimant definitely would be able to return to his roadwork 
 
            occupation with some excessive ambulation restrictions and, 
 
            also, claimant could return to farming.  He also indicated 
 
            claimant's activities demonstrate physical capabilities over 
 
            and beyond what claimant alleges he is able to do (Def. Ex. 
 
            D).  Dr. Koch appears to question claimant's real medical 
 
            condition versus what claimant was observed in seeking 
 
            medical help (Def. Ex. E).
 
            
 
                 A report on January 5, 1987 by St. Luke's Hospital, 
 
            signed by Dr. Koch, indicated: "Physical therapy 
 
            consultation made for testing which demonstrated the 
 
            presence of malingering on the part of the patient and he 
 
            was advised of this and directed to discard his cane...." 
 
            (Def. Ex. I, p. 2).
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
                 Defendants' Exhibit M is a deposition of Attorney Paul 
 
            Thune, who represented West Bend Insurance Company, who was 
 
            also the insurance company in this case at bar.  He 
 
            testified that defendant insurance company waived its 
 
            workers' compensation lien it held under 85.22 but not its 
 
            right to a credit in a workers' compensation case.  He 
 
            emphasized this credit issue never came up in a discussion; 
 
            therefore, it could not have been agreed to.  Mr. Thune 
 
            wrote to claimant's attorney (Def. Ex. M).  Mr Thune 
 
            acknowledged in that letter that it could be found that the 
 
            waiver to a lien was a waiver as far as credit for future 
 
            payments.  There was no division of the proceeds as to what 
 
            it went for other than a general settlement in a personal 
 
            injury action asking for damages for various things 
 
            including pain, suffering, loss of consortium for he and his 
 
            wife.
 
            
 
                 Claimant's medical records show he incurred a pelvic 
 
            and midhumoral fracture as a result of his September 4, 1985 
 
            injury.  He was hospitalized approximately nineteen days 
 
            after first being taken to Iowa Methodist Hospital on 
 
            September 4, 1985 and later transferred to Pella Community 
 
            Hospital.
 
            
 
                 Claimant voluntarily admitted himself to the Iowa 
 
            Lutheran Hospital on July 8, 1986.  The record seems to 
 
            indicate he had a marital confrontation the day before with 
 
            his wife and stormed out of the house to a neighbor's house 
 
            requesting a gun to kill himself.  This report summary 
 
            suggests that claimant be referred to group therapy and 
 
            marriage counseling (Cl. Ex. 4(b).
 
            
 
                 On March 26, 1987, Dr. Koch's records reflect claimant 
 
            admits to having an emotional blow in the past week when his 
 
            wife left him and took all the furniture (Cl. Ex. 6(a), p. 
 
            10).  Also, see physical therapist notes (Cl. Ex. 7, p. 5).  
 
            Dr. Koch also encouraged claimant to go into construction 
 
            work and continue the farm operation.  On May 28, 1987, Dr. 
 
            Koch mentioned claimant is depressed apparently for economic 
 
            reasons and worrying about medical bills not being paid and 
 
            a collection agency becoming involved.  He felt claimant had 
 
            reacted to depression, an outgrowth of the accident (Cl. Ex. 
 
            6, p. 10).  On June 16, 1987, Dr. Koch opined claimant had a 
 
            25 percent impairment (Cl. Ex. 6(b).  It appears claimant 
 
            can control his depression whatever the cause, by taking his 
 
            medicine in doses prescribed by the doctor (Cl. Ex. 9).
 
            
 
                 Scott B. Neff, M.D., an orthopedic surgeon, testified 
 
            by way of his deposition on June 21, 1989 (Cl. Ex. 10), that 
 
            his first contact with claimant was March 13, 1989.  He 
 
            described the various tests he performed on claimant.  He 
 
            found claimant had restricted right arm movement and a break 
 
            and disruption in his pelvis and sacroiliac joint.  Based on 
 
            claimant's history, he causally connected claimant's 
 
            condition to his September 4, 1985 injury.  Dr. Neff 
 
            indicated claimant would always have some pain in the 
 
            sacroiliac joint region due to the nature of this type of 
 
            pelvic fracture and the nature of the pelvic and S1 joint 
 
            itself (Cl. Ex. 10, p. 14-16).  He indicated claimant would 
 
            be employable only in a sedentary light work class (Cl. Ex. 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            10(b), p. 19).
 
            
 
                 Dr. Neff agreed to the 15 percent permanent impairment 
 
            rating that Thomas Bower, physical therapist, gave claimant 
 
            based on claimant's pubic symphysic separation (pelvic 
 
            injury) (Cl. Ex. 10(b), p. 39).  Dr. Neff further opined 
 
            that claimant's total permanent impairment was 30 percent 
 
            including the additional lumbar spine loss of motion and the 
 
            right upper extremity.  It appears the doctor did not have 
 
            the information of what claimant's activities were at the 
 
            time of claimant's examination and history being taken by 
 
            him.
 
            
 
                 Gary a. Derby, D.C., issued a report on October 20, 
 
            1990 (Cl. Ex. 12(c).  Claimant went to him, it appears, 
 
            beginning in February 1990, shortly before claimant went to 
 
            Dr. Neff, an orthopedic surgeon.  It is this chiropractic 
 
            bill to which defendants are objecting.
 
            
 
                 Claimant has seen various doctors.  He went to Dr. 
 
            Derby for evaluation and treatment but he has gone to 
 
            several other doctors also.  There is a limit to how many 
 
            doctors claimant can go to at the expense of defendants.  
 
            Claimant can seek the services of as many doctors as he 
 
            wants but that does not mean he can have someone else pay 
 
            for all of them.  The undersigned finds that claimant is 
 
            obligated to pay Dr. Derby's bills.  Dr. Derby was not 
 
            authorized.  With all claimant's other problems, some of 
 
            which are not causally connected to his injury, the 
 
            undersigned questions the effectiveness or need of the 
 
            chiropractor's services to treat the problem claimant may 
 
            have had from his September 4, 1985 injury.  The undersigned 
 
            also finds that claimant is not entitled to any alternate 
 
            care.  Once this litigation is over, claimant may become 
 
            stabilized as to his mental problems which the undersigned 
 
            finds are not causally connected to his September 4, 1985 
 
            injury.
 
            
 
                 The undersigned finds that the claimant did receive 
 
            some permanent impairment in an injury arising out of and in 
 
            the course of his employment on September 4, 1985, and 
 
            obviously defendants believe he did also.  The undersigned 
 
            believes claimant is exaggerating his problems and symptoms 
 
            and the medical records in several instances reflect the 
 
            same conclusion by various treating medical personnel.  
 
            Claimant has obvious mental disorders.  He had a mental 
 
            personality disorder for years prior to his September 4, 
 
            1985 injury.  The record seems to indicate claimant wasn't 
 
            bothered or being treated by any mental problem before 
 
            September 4, 1985.  The question arises whether claimant's 
 
            September 4, 1985 injury materially accelerated or lighted 
 
            up a preexisting condition for which the defendants are 
 
            liable.  The mind and brain are complex and often mysterious 
 
            in their operation.  Although Dr. Lewis tends to causally 
 
            connect one of claimant's disorders to his September 4, 1985 
 
            injury, taking his testimony as a whole leaves serious doubt 
 
            in the undersigned's mind.  Dr. Lewis seems to downplay 
 
            claimant's marital problems as resulting in stress that was 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            or could be a big or bigger problem affecting claimant's 
 
            mental stability leading to many of claimant's current 
 
            problems.  The doctor seems to feel that, since claimant did 
 
            not have similar problems after his first and second 
 
            divorce, his mental disorders are the result of or were not 
 
            activated by his third divorce.  The undersigned cannot buy 
 
            this conclusion and it appears Dr. Lewis isn't completely 
 
            sold on it also.  In fact, at the end of his testimony, he 
 
            raised the doctor-patient privilege of confidentiality when 
 
            the question got touchy as to this marital issue.  The 
 
            doctor did finally come around and said claimant's pain was 
 
            spilling over into his marital problems but he can't give 
 
            out information due to confidentiality of another patient.  
 
            Claimant has the burden of proof by the preponderance of the 
 
            evidence to show claimant's psychiatric problems and 
 
            psychiatric and accompanying drug bills are causally 
 
            connected to claimant's September 4, 1985 injury.
 
            
 
                 Taking all the medical testimony and records into 
 
            consideration, the undersigned finds claimant has failed in 
 
            his burden.  Claimant is responsible for his psychiatric 
 
            bills and care and his drug bills connected therewith.
 
            
 
                 Claimant is farming and making basically the same 
 
            amount of money proportionately as he was making at the time 
 
            of his injury.  As indicated earlier, the undersigned 
 
            believes claimant is exaggerating his ability to farm and do 
 
            other activities.  It may have helped if claimant's father 
 
            had testified to determine if claimant is, in fact, doing no 
 
            heavy work and that his father has returned from retirement 
 
            to do the heavy work for claimant or having someone else do 
 
            it.
 
            
 
                 The video (Def. Ex. N) raises serious questions as to 
 
            claimant's credibility.  The outside work claimant did 
 
            appears to be off and on and nothing certain.  It is obvious 
 
            claimant relies on farming for his income.  It appears to 
 
            date claimant's injury has basically not affected his 
 
            income.  The job he was doing at the time of his September 
 
            4, 1985 injury was an isolated job and was to last only a 
 
            few weeks.  There were no assurances that similar jobs were 
 
            to be expected in the future.  The undersigned believes 
 
            claimant does have a loss of earning capacity due to the 
 
            nature of his September 4, 1985 injury to his pelvis and 
 
            upper right extremity and his resulting impairment.
 
            
 
                 Taking into consideration claimant's age, education, 
 
            medical, work history, motivation, impairment, healing 
 
            period, income and any other criteria used in determining 
 
            claimant's industrial disability, the undersigned finds 
 
            claimant has a 25 percent industrial disability.
 
            
 
                 As to claimant's healing period, claimant contends his 
 
            healing period is September 4, 1985 through June 1, 1989.  
 
            Defendants contend it is September 4, 1985 up to and not 
 
            including April 1, 1987.  Claimant's Exhibit 6(a), page 10, 
 
            shows that Dr. Koch seems to indicate claimant should go 
 
            into the construction business work if he can find a job and 
 
            continue farming.  The undersigned finds claimant's healing 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            period is September 4, 1985 up to and not including April 1, 
 
            1987, amounting to 81.857 weeks.
 
            
 
                 As to the issue of 86.13 benefits, claimant has failed 
 
            to carry his burden of proof as to showing defendants 
 
            delayed commencement or terminated benefits without 
 
            reasonable or probable cause or excuse.
 
            
 
                 As to the issue of defendants receiving credit for the 
 
            $20,000 claimant received in a third party settlement, it 
 
            appears this lump sum settlement included other factors that 
 
            are not compensable damages in a workers' compensation 
 
            action.  Claimant's wife was also a party to that suit and 
 
            settlement.  There is no breakdown of the payment as to what 
 
            is specifically apportioned to certain damages.  In other 
 
            words, how much for pain and suffering, loss of consortium, 
 
            future medical, etc.
 
            
 
                 The attorney representing the insurance company, which 
 
            is the same insurance company in the case at bar, 
 
            acknowledged defendant insurance company waived its right to 
 
            a lien as to this workers' compensation case but there was 
 
            no mention made as to waiving the credit.  This attorney did 
 
            admit in a letter (Dep. Ex. 1, Def. Ex. M) that one could 
 
            argue that waiving the lien could be found to be waiving 
 
            credit.  It would appear that this should have been 
 
            discussed and decided and not left hanging.  Defendants are 
 
            raising the credit issue.  Defendants could have nailed this 
 
            down in the third party settlement if it wasn't their intent 
 
            to waive the credit when they waived the lien in order to 
 
            get the third party action settled.  The undersigned finds 
 
            that defendants are not entitled to credit for any of the 
 
            $20,000 against claimant's recovery herein.  As indicated by 
 
            the undersigned during the proceedings, even if a credit 
 
            were allowed, the maximum amount of credit the undersigned 
 
            would have allowed would be after attorney fees and certain 
 
            costs were deducted.  After the undersigned had mentioned 
 
            this, the parties agreed that the maximum credit, if credit 
 
            were to be given, would only be $10,175, which is the net 
 
            amount after certain attorney fees and costs are deducted 
 
            from the $20,000.
 
            
 
                                CONCLUSIONS OF LAW
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of September 
 
            4, 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 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 An employee is not entitled to recover for the results 
 
            of a preexisting injury or disease but can recover for an 
 
            aggravation thereof which resulted in the disability found 
 
            to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 
            125 N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber 
 
            Co., 253 Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United 
 
            States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591 (1960).  See 
 
            also Barz v. Oler, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
            Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 N.W. 35 
 
            (1934).
 
            
 
                 If claimant has an impairment to the body as a whole, 
 
            an industrial disability has been sustained.  Industrial 
 
            disability was defined in Diederich v. Tri-City Railway Co., 
 
            219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: 
 
            "It is therefore plain that the legislature intended the 
 
            term `disability' to mean `industrial disability' or loss of 
 
            earning capacity and not a mere `functional disability' to 
 
            be computed in the terms of percentages of the total 
 
            physical and mental ability of a normal man."
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
            257.
 
            
 
                 Iowa Code section 85.34(1) provides that if an employee 
 
            has suffered a personal injury causing permanent partial 
 
            disability, the employer shall pay compensation for a 
 
            healing period from the day of the injury until (1) the 
 
            employee returns to work; or (2) it is medically indicated 
 
            that significant improvement from the injury is not 
 
            anticipated; or (3) until the employee is medically capable 
 
            of returning to substantially similar employment.
 
            
 
                 Iowa Code section 85.27 provides, in part:
 
            
 
                    For purposes of this section, the employer is 
 
                 obliged to furnish reasonable services and 
 
                 supplies to treat an injured employee, and has the 
 
                 right to choose the care.  The treatment must be 
 
                 offered promptly and be reasonably suited to treat 
 
                 the injury without undue inconvenience to the 
 
                 employee.  If the employee has reason to be 
 
                 dissatisfied with the care offered, the employee 
 
                 should communicate the basis of such 
 
                 dissatisfaction to the employer, in writing if 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
                 requested, following which the employer and the 
 
                 employee may agree to alternate care reasonably 
 
                 suited to treat the injury.  If the employer and 
 
                 employee cannot agree on such alternate care, the 
 
                 commissioner may, upon application and reasonable 
 
                 proofs of the necessity therefor, allow and order 
 
                 other care.  In an emergency, the employee may 
 
                 choose the employee's care at the employer's 
 
                 expense, provided the employer or the employer's 
 
                 agent cannot be reached immediately.
 
            
 
                 Iowa Code section 86.13 provides, in part:
 
            
 
                    If a delay in commencement or termination of 
 
                 benefits occurs without reasonable or probable 
 
                 cause or excuse, the industrial commissioner shall 
 
                 award benefits in addition to those benefits 
 
                 payable under this chapter, or chapter 85, 85A, or 
 
                 85B, up to fifty percent of the amount of benefits 
 
                 that were unreasonably delayed or denied.
 
            
 
                 It is further concluded that:
 
            
 
                 Claimant did incur an impairment to his body as a whole 
 
            as a result of his September 4, 1985 injury.
 
            
 
                 Claimant's psychological, mental problems and disorders 
 
            were not caused by or were not materially and substantially 
 
            aggravated by claimant's September 4, 1985 injury.
 
            
 
                 Claimant is responsible for his psychiatric bills and 
 
            drugs connected therewith.
 
            
 
                 Claimant is responsible for his chiropractic bills.
 
            
 
                 Claimant incurred a healing period as a result of his 
 
            September 4, 1985 injury, beginning September 4, 1985 up to 
 
            and not including April 1, 1987, amounting to eighty-one 
 
            point eight five seven weeks.
 
            
 
                 Claimant is not entitled to alternate care.
 
            
 
                 Claimant is not entitled to 86.13 benefits.
 
            
 
                 Claimant has incurred a loss of earning capacity and 
 
            has a 25 percent industrial disability as a result of his 
 
            September 4, 1985 injury.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay unto claimant healing period 
 
            benefits at the rate of two hundred fifty-one and 03/100 
 
            dollars ($251.03) for the period beginning September 4, 1985 
 
            up to and not including April 1, 1987, amounting to 
 
            eighty-two (82) weeks.
 
            
 
                 That defendants shall pay unto claimant one hundred 
 
            twenty-five (125) weeks of permanent partial benefits at the 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            rate of two hundred fifty-one and 03/100 dollars ($251.03) 
 
            beginning April 1, 1987.
 
            
 
                 That defendants shall pay the accrued weekly benefits 
 
            in a lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties have 
 
            stipulated that the defendants have paid one hundred 
 
            seventy-nine point two eight six (179.286) weeks at two 
 
            hundred fifty one and 03/100 dollars ($251.03) per week.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.  The parties stipulated 
 
            that defendants have paid one hundred seventy-nine point two 
 
            eight six (179.286) weeks at two hundred fifty-one and 
 
            03/100 dollars ($251.03).
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
     
 
            
 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
                                          ______________________________
 
                                          BERNARD J. O'MALLEY
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr Steven C Jayne
 
            Attorney at Law
 
            5835 Grand Ave  Ste 201
 
            Des Moines IA 50312
 
            
 
            Ms Vicki L Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            Davenport IA 52801
 
            
 
            Mr John E Billingsley
 
            Attorney at Law
 
            121 1st St S
 
            Newton IA 50208
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1803; 5-2700, 5-1802
 
                      5-4000; 1108.20;
 
                      2206; 5-2503; 2503
 
                      Filed February 28, 1991
 
                      Bernard J. O'Malley
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DONALD KUIKEN,                :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :       File No. 803877
 
            DIELEMAN CONSTRUCTION CO.,    :
 
                                          :     A R B I T R A T I O N
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            WEST BEND MUTUAL INSURANCE    :
 
            CO.,                          :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1803; 5-1802
 
            Found claimant incurred a 25 percent industrial disability 
 
            by her work injury.  Claimant also awarded healing period 
 
            but for a lesser period of time than requested.
 
            
 
            1108.20; 2206; 2503
 
            
 
            Found claimant's psychiatric problems, personality disorder 
 
            and major depressive disorder were not caused by and were 
 
            not substantially and materially aggravated by claimant's 
 
            work injury.  Claimant is responsible for his psychiatric, 
 
            medical and drug bills
 
            
 
            5-2503
 
            Found claimant responsible for his chiropractic bills.
 
            
 
            5-2700
 
            Found claimant not entitled to alternate care.
 
            
 
            5-4000
 
            Found claimant not entitled to 86.13 penalty benefits.
 
            
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL HOWARD CRAWFORD,
 
         
 
              Claimant,
 
                                                File No. 803960
 
         vs.
 
                                                    A P P E A L
 
         TAMA MEAT PACKING CORP.,
 
                                                  D E C I S I O N
 
              Employer,
 
                                                     F I L E D
 
         and
 
                                                    AUG 16 1989
 
         KEMPER INSURANCE,
 
              Insurance Carrier,                INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendants appeal from an arbitration decision awarding 
 
         claimant permanent partial disability benefits based upon a ten 
 
         percent disability of the right leg as a result of an alleged 
 
         injury sustained on September 4, 1985.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing and joint exhibits 1 through 10.  Both 
 
         parties filed briefs on appeal.
 
         
 
                                      ISSUE
 
         
 
              The issue on appeal is the nature and extent of claimant's 
 
         alleged disability.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision dated March 28, 1989, adequately 
 
         and accurately reflects the pertinent evidence and it will not be 
 
         set forth herein.
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issue and the evidence.
 
         
 
                                     ANALYSIS
 
         
 
              The analysis of the evidence in conjunction with the law is 
 
         adopted.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                 FINDINGS OF FACT
 
         
 
              1.  The stab wound injury of September 4, 1985, to 
 
         claimant's right leg was the cause of permanent disability.
 
              
 
              2.  Claimant sustained a permanent impairment of the 
 
         saphenous nerve and the femoral, popliteal and saphenous leg 
 
         veins.
 
              
 
              3.  Claimant has permanent swelling, numbness and weakness 
 
         in his right leg as the result of these injuries.
 
              
 
              4.  Claimant sustained a ten percent permanent impairment of 
 
         the right leg.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              The injury of September 4, 1985, was the cause of permanent 
 
         partial disability of ten percent of the right leg.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant twenty-two (22) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         seventeen and 62/100 dollars ($217.62) per week in the total 
 
         amount of four thousand seven hundred eighty-seven and 64/100 
 
         ($4,787.64) commencing on January 13, 1986, as stipulated.
 
         
 
              That these benefits are to be paid in a lump sum.
 
         
 
              That interest accrues pursuant to Iowa Code section 85.30.
 
         
 
              That defendants pay the costs of this proceeding, including 
 
         the costs of transcribing the arbitration proceeding, one hundred 
 
         fifty dollars ($150) of the expert witness fee for John R. 
 
         Walker, M.D., and one hundred twenty-eight and 60/100 dollars 
 
         ($128.60) for the court reporter fees for the deposition of Dr. 
 
         Walker.
 
         
 
              That defendants file claim activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 16th day of August, 1989.
 
                   
 
                                             
 
                   
 
                   
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         Ms. Jacqueline Jorgensen
 
         Attorney at Law
 
         7177 Hickman Road
 
         Des Moines, Iowa  50322
 
         
 
         Mr. Paul Thune
 
         Attorney at Law
 
         218 6th Avenue, Ste. 300
 
         P.O. Box 9130
 
         Des Moines, Iowa  50306
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                            1401, 1402.40, 1803
 
                                            Filed August 16, 1989
 
                                            DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
                                                                          
 
         RUSSELL HOWARD CRAWFORD,
 
         
 
              Claimant
 
                                                    File No. 803960
 
         vs.
 
         
 
         TAMA MEAT PACKING CORP.,                     A P P E A L
 
         
 
              Employer,
 
                                                    D E C I S I O N
 
         and
 
         
 
         KEMPER INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1401, 1402.40, 1803
 
         
 
              Claimant awarded 10 percent permanent partial disability for 
 
         permanent nerve injury and permanent vascular injury manifested by 
 
         chronic swelling, numbness and weakness of the right leg.  
 
         Treating physician and defendants' physicians either failed to 
 
         rate or gave ratings inconsistent with their medical findings.  
 
         Claimant's physician awarded 18 percent and his conclusion was 
 
         based on his medical findings.  Agency expertise relied upon in 
 
         determining expertise relied upon in determining extent of 
 
         disability.  Deputy affirmed on appeal.
 
              
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
              
 
 
 
                    
 
         
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         RUSSELL HOWARD CRAWFORD,
 
         
 
              Claimant,
 
         
 
         vs.                                     File No. 803960
 
         
 
         TAMA MEAT PACKING CORPORATION,       A R B I T R A T I O N
 
         
 
              Employer,                          D E C I S I O N
 
         
 
         and
 
                                                    F I L E D
 
         KEMPER INSURANCE,
 
                                                   MAR 28 1989
 
              Insurance Carrier,
 
              Defendants.                      INDUSTRIAL SERVICES
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Russell 
 
         Howard Crawford, claimant, against Tama Meat Packing Corporation, 
 
         employer, and Kemper Insurance Company, insurance carrier, 
 
         defendants, for benefits as the result of an injury which 
 
         occurred on September 4, 1985.  A hearing was held in Des Moines, 
 
         Iowa, on February 24, 1989, and the case was fully submitted at 
 
         the close of the hearing.  The record consists of the joint 
 
         exhibits 1 through 10 and the testimony of Russel Crawford, 
 
         claimant.  Both parties submitted excellent briefs.
 
         
 
                                 STIPULATIONS
 
         
 
              The parties stipulated to employer-employee relationship; 
 
         injury arising out of and in the course of employment on 
 
         September 4, 1985; that the injury was the cause of temporary 
 
         disability and that claimant is entitled to and was paid 
 
         temporary disability benefits during a period of recovery at the 
 
         rate of $218.14 per week for 18.571 weeks, from September 5, 1985 
 
         to January 13, 1986; that the type of permanent disability, if 
 
         any, is scheduled member disability to the leg; that the 
 
         commencement date for permanent partial disability benefits is 
 
         January 13, 1986; and that the rate of compensation, in the event 
 
         of an award, is $217.62 per week; that all of claimant's medical 
 
         expenses have been or will be paid by defendants; that defendants 
 
         claim no credit for any permanent partial disability benefits or 
 
         nonoccupational group health plan benefits paid prior to hearing; 
 
         and that there are no bifurcated claims.
 
         
 
                            PRELIMINARY MATTER
 
                                                
 
                                                         
 
         
 
              Claimant designated in paragraph 12 of the prehearing report 
 
         that another issue in the case was whether claimant was entitled 
 
         to an Iowa Code section 85.39 examination from John R. Walker, 
 
         M.D., in the amount of $665.  Claimant was notified by the 
 
         hearing deputy that since a section 85.39 examination was not 
 
         designated as a hearing issue at the time of the prehearing 
 
         conference and was not designated as a hearing issue on the 
 
         hearing assignment order, then it would not be addressed and 
 
         would not be determined as a disputed hearing issue in this case.  
 
         Hearing deputies determine only issues raised at the prehearing 
 
         conference and designated as hearing issues on the hearing 
 
         assignment order. Presswood v. Iowa Beef Processors, Inc., file 
 
         number 735442 (app. dec. Nov. 14, 1986); Rahn v. Siouxland Towing 
 
         and Auto Body, file number 797004, filed Oct. 20, 1987; Pulju v. 
 
         Iowa Beef Processors, Inc., file numbers 804656 & 814502, filed 
 
         Feb. 9, 1988; Fisher v. American Freight Systems, Inc., file 
 
         number 797015, filed Sept. 26, 1988.
 
         
 
                                  ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the extent of benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Of all of the evidence that was introduced, the following is 
 
         a summary of the evidence most pertinent to this decision.
 
         
 
              Claimant, age 28, is a six year employee of employer.  On 
 
         September 4, 1985, he was lead man in the break-up (boning) area. 
 
         He was peeling down a chuck that he had lifted onto a plank, it 
 
         fell, he tried to catch it, the chuck hit his boning knife and 
 
         drove the knife into the front of his right thigh just above the 
 
         knee.
 
         
 
              Claimant was taken by ambulance to see Dennis Mallory, D.O., 
 
         in Toledo, Iowa.  Dr. Mallory reported that claimant sustained a 
 
         stab wound in the right anterior thigh which transected the 
 
         artery and which was bleeding profusely.  He sent claimant 
 
         immediately by ambulance to the University of Iowa Hospitals and 
 
         Clinics (exhibit 2).
 
         
 
              At the university, claimant was treated by Wade G. Lamberth, 
 
         M.D., a thoracic cardiovascular surgeon, on September 4, 1985, 
 
         for a laceration of the right superficial femoral artery and 
 
         superficial femoral vein.  Dr. Lamberth performed a primary 
 
         closure with an end-to-end repair of the right superficial 
 
         femoral artery and superficial femoral vein.  The doctor recorded 
 
         that the patient's foot was demonstrating pallor, pulselessness, 
 
                                                
 
                                                         
 
         paralysis, paresthesias, decreased sensation and no pulses were 
 
         appreciated by doppler.  He added that it was found that a small 
 
         trunk of the nerve was also severed along with a complete 
 
         transection of the right femoral artery and superficial femoral 
 
         vein.  Fasciotomies were performed in three compartments of the 
 
         right lower leg to reduce pressure on the lower leg (ex. 1, p. 
 
         12).
 
         
 
              On September 20, 1985, Dr. Lamberth reported that claimant 
 
         severed both his superficial femoral artery and superficial 
 
         femoral vein.  A portion of the nerve was transected but not 
 
         repaired at that time.  It appeared to be a saphenous nerve (ex. 
 
         1, p. 17).
 
         
 
              On a medical report printed form dated October 10, 1985, Dr. 
 
         Lamberth stated it was doubtful if the injury would result in a 
 
         permanent defect (ex., 1, p. 18).
 
         
 
              On November 4, 1985, Dr. Lamberth reported that claimant's 
 
         right leg was still swollen.  A venous doppler showed some 
 
         obstruction with probable recanalization.  A venogram was 
 
         scheduled for November 21, 1985 (ex. 1, p. 19).
 
         
 
              John C. VanGilder, M.D., a professor of neurosurgery at the 
 
         University of Iowa, saw claimant on November 21, 1985, for 
 
         neurosurgical consultation for the laceration of the saphenous 
 
         nerve.  Sensory examination showed hypalgesia from above the knee 
 
         to the ankle along the distribution of the saphenous vein.  Since 
 
         he was not suffering dysesthesias, the doctor saw no need for 
 
         surgical intervention, reexploration and anastomosis of the 
 
         saphenous nerve (ex. 1, p. 20).
 
         
 
              On November 26, 1985, Dr. Lamberth reported that the right 
 
         calf measured larger than the left calf.  Venous doppler showed 
 
         that the right femoral vein, popliteal, calf and saphenous vein 
 
         were occluded.  The superficial femoral vein was occluded from 
 
         the proximal thigh on down (ex. 1, p. 21).
 
         
 
              On December 9, 1985, Dr. Lamberth reported continued deep 
 
         vein thrombosis and weakness in the right leg.  Claimant was 
 
         continued off work (ex. 1, p. 22).
 
         
 
              On January 10, 1986, Dr. Lamberth returned claimant to light 
 
         work on January 13, 1986.  He thought claimant could perform 
 
         regular work on February 17, 1985.  Dr. Lamberth's diagnosis was 
 
         traumatic deep venous thrombosis from the knife wound.  He had 
 
         some swelling, but minimal pain.  He was fitted with a Sigvaris 
 
         stocking for the right leg below the knee (ex. 1, pp. 23-25).
 
         
 
              On May 12, 1986, Dr. Lamberth reported claimant had aching 
 
         pain in the right ankle, occasional stiffness in both knees, and 
 
         swelling of the right calf.  The venous doppler demonstrated deep 
 
         vein incompetence in the right superficial femoral, popliteal and 
 
         calf vein.  He said claimant was improved, but he would see him 
 
         in a year (ex. 1, p. 27).
 
                                                
 
                                                         
 
         
 
              On May 15, 1986, Dr. Lamberth told the insurance carrier 
 
         that claimant had no permanent functional deficit.  The insurance 
 
         company had proposed the question and Dr. Lamberth apparently 
 
         penned in, in his own handwriting, in reply the words "no 
 
         permanent functional deficit." (ex. 1, p. 26).  Claimant was not 
 
         seen then at the University of Iowa until July 1, 1987, when he 
 
         was seen by Ronald L. Meng, M.D., a cardiothoracic surgeon.  Dr. 
 
         Meng gave an excellent summary of claimant's treatment to date. 
 
         He said claimant continued to have swelling of the right calf and 
 
         it was enlarged versus the left leg which was consistent with 
 
         traumatic deep vein thrombosis which developed following his 
 
         injury.  He said the swelling and mild discomfort will probably 
 
         persist throughout his life and are a very common occurrence with 
 
         deep venous thrombosis (ex. 1, p. 28).  Dr. Meng did not evaluate 
 
         or rate claimant at this time.
 
         
 
              On October 1, 1987, Dr. Meng said that he did not believe 
 
         that claimant had any permanent partial rating nor any specific 
 
         restrictions or limitations that would apply to his job.  He 
 
         added that there would be restrictions if the swelling got worse. 
 
         Claimant was released from his care (ex. 1, p. 30).
 
         
 
              Claimant testified that Dr. Meng was not a treating 
 
         physician.  He stated that he only saw Dr. Meng one time, for 
 
 
 
                                  
 
                                                         
 
         approximately five to ten minutes, for the purpose of an 
 
         evaluation and a rating.  Claimant alleged that Dr. Meng 
 
         administered no tests and took no x-rays.  Claimant further 
 
         asserted that Dr. Meng did not actually physically examine his 
 
         leg.  Claimant further alleged that Dr. Meng indicated that they 
 
         did not give impairment ratings on this type of a case.  Claimant 
 
         said he told Dr. Meng he was having problems with swelling, 
 
         numbness and weakness. Claimant contended that Dr. Meng said that 
 
         he would be okay in time except that he would have the swelling 
 
         for the rest of this life.
 
         
 
              Claimant received another examination at the University of 
 
         Iowa on February 3, 1989, just prior to hearing, by Asad R. 
 
         Shamma, M.D., an associate in vascular surgery.  Claimant 
 
         continued to have right leg swelling below the knee after 
 
         prolonged standing.  He had decreased sensation over the medial 
 
         aspect and anteromedial aspect of the leg.  He had some mild 
 
         brown discoloration of the distal leg.  The right thigh was three 
 
         cm. larger than the left thigh.  The right leg was five cm. 
 
         larger than the left leg.  Venous doppler revealed reflux of the 
 
         right deep venous system (ex. 1, pp. 31 & 32).  Claimant 
 
         testified that Dr. Shamma did not examine his leg, administer any 
 
         tests for strength or flexibility or take any x-rays.  Claimant 
 
         said that Dr. Shamma asked for his medical records, but claimant 
 
         did not have them with him.
 
         
 
              Claimant was seen by Scott Neff; D.O., on June 1, 1988.  He 
 
         said that claimant continued to have swelling of the calf after 
 
         vigorous activity and lack of sensation from the knee down over 
 
         the anterior surface of the tibia.  Dr. Neff said that the Guides 
 
         to the Evaluation of Permanent Impairment, published by the 
 
         American Medical Association, second edition, did not address 
 
         thrombophlebitis specifically.  Dr. Neff referred to Dr. Meng's 
 
         opinion of no permanent partial rating, no restrictions and no 
 
         limitations and he said that he concurred with it (ex. 4, pp. 1 & 
 
         2).
 
         
 
              Claimant testified that Dr. Neff spent approximately 10 to 
 
         15 minutes with him, performed no tests, took no x-rays and did 
 
         not examine his injured right leg.  Dr. Neff sent claimant to 
 
         Thomas Bower, L.P.T., a licensed physical therapist.  Claimant 
 
         contended that Bower told him that since he had no history for 
 
         claimant and since he had not expected to see him that day, he 
 
         was unable to perform any tests.  Claimant testified that Bower 
 
         said that he would have claimant return at a later date, but that 
 
         Bower never did call him to return.
 
         
 
              Claimant testified that John R. Walker, M.D., gave him a 
 
         very thorough examination which lasted for approximately one and 
 
         one-half to two hours on October 17, 1988.  This examination 
 
         included tests and x-rays (ex. 5).  Dr. Walker's report gives an 
 
         excellent description of the injury and a chronological summary 
 
         of the treatment subsequent to the injury.  Claimant complained 
 
         of swelling, cramping, numbness and weakness of the entire right 
 
         lower leg.  Dr. Walker detected that claimant walked slightly 
 
                                                
 
                                                         
 
         favoring the right lower extremity.  He recorded claimant had 7/8 
 
         inch swelling of the right calf.  He noted that the venous 
 
         circulation was slightly impaired causing bronzing coloration on 
 
         the dorsum of the right foot.  Claimant demonstrated five 
 
         different scars to Dr. Walker (ex. 5; ex. 9, pp. 17 & 18).  Dr. 
 
         Walker described the five scars as follows:  (l) a one and 
 
         one-half inch scar anterior, medial on the lower one-third of the 
 
         thigh from the stab wound, (2) a 13 inch scar anterior, medial 
 
         aspect of the right thigh from the surgical incision, (3) a one 
 
         and one-half inch scar medial, superior calf from one of the 
 
         fasciotomies to release the tremendous tension and swelling, (4) 
 
         a one and one-half inch posterior, lateral calf scar to relieve 
 
         the subfascial tension and (5) a two inch scar on the posterior 
 
         calf to relieve pressure.
 
         
 
              Dr. Walker particularly noted the deep vein thrombosis and 
 
         the severed saphenous nerve.  He recorded practically anesthesia, 
 
         at least paresthesias or hypesthesias, over the front of the 
 
         entire calf from the knee to the ankle (ex. 5; ex. 9, p. 20).  
 
         Dr. Walker concluded his written medical report as follows:
 
         
 
              OPINION:  The patient has the following diagnoses:
 
         
 
                 1.) A chronic swelling of the right calf, with 
 
              hypesthesias and paresthesias, due to loss of the integrity 
 
              of the greater saphenous vein system.
 
         
 
                 2.) Laceration of the right saphenous vein just above and 
 
              slightly medial to the knee joint with loss of sensation in 
 
              the area as described above.
 
         
 
                 3.) Chronic pain because of:
 
         
 
                           a.) Swelling.
 
         
 
                           b.) Nerve injury.
 
         
 
                           c.) Vascular injury as described above.
 
         
 
                           d.) Slight skin changes and venous engorgement 
 
              due to the above captioned injury.
 
         
 
                 4.) Chronic, painful calf and a feeling of weakness, 
 
              numbness, etcetera, due to the injury described above.
 
         
 
              It is my opinion that this patient has suffered a permanent, 
 
              partial impairment of the right lower extremity amounting to 
 
              18% of the right, lower extremity.  It might well be that 
 
              his industrial disability might be higher.
 
         
 
              At the present time I have no further suggestions for 
 
              treatment.
 
         
 
         (ex. 5, pp. 4 & 5)
 
         
 
                                                
 
                                                         
 
              Dr. Walker gave a deposition on February 7, 1989 (ex. 9).  
 
         He identified himself as a 68 year old, board certified 
 
         orthopedic surgeon who has practiced in Waterloo for over 39 
 
         years.  He testified from a sensory nerve chart and identified 
 
         the stab wound, where the saphenous nerve was cut, lacerated and 
 
         not repaired and the area of the anterior calf affected by this 
 
         injury which is the entire front portion of the right calf.  Dr. 
 
         Walker testified that he has examined claimant's medical records 
 
         (ex. 9, pp. 1-12).
 
         
 
              The x-rays of the femur showed the five silver clips used by 
 
         the surgeon to stop the bleeding and a metal wire used to tag the 
 
         nerve ending of the saphenous nerve that had been lacerated and 
 
         had not been repaired at the time of the surgery.  Dr. Walker 
 
         testified that he tied off bleeding veins with sutures, but it 
 
         was common for vascular surgeons to use metal clips and to leave 
 
         them in (ex. 9, p. 12).
 
         
 
              Dr. Walker said the swelling in the right calf would be 
 
         continuous and that there is a high degree of probability that it 
 
         may increase.  The hypesthesias, and paresthesias should stay the 
 
         same and not get worse.  He.said that it was too late to repair 
 
         the saphenous nerve.  Dr. Walker speculated that the reason that 
 
         it was not repaired earlier was probably due to the tremendous 
 
         vein problem and arterial problem that claimant was having in his 
 
         lower leg.
 
         
 
              Dr. Walker reported that the swelling in claimant's leg was 
 
         causing the cramping in his leg and he speculated that claimant 
 
         will find walking more difficult as he gets older.  Dr. Walker 
 
         said that claimant's chronic pain was due to the swelling.  He 
 
         has weakness and numbness due to the loss of sensation over the 
 
         nerve and impaired circulation in the right lower extremity.  Dr. 
 
         Walker said there is no further surgery or treatment that would 
 
         help claimant at this time (ex. 9, pp. 21-24).
 
         
 
              Dr. Walker said that claimant had a permanent partial 
 
         impairment of the right lower extremity caused by the stab wound 
 
         and the resulting surgery.  Dr. Walker expressed his rating and 
 
         the basis for it as follows:
 
         
 
                 Well, after considering the swelling of the calf, 
 
              particularly his history, of course, and complaints, the 
 
              x-rays, which show the tagging, the clips and the metal 
 
              wire, and listening to his story and reading, particularly, 
 
              the operative report, which I found very interesting, I felt 
 
              that he definitely had a permanent partial impairment of the 
 
              right lower extremity.  I felt it should be set at 18 
 
              percent of the right lower extremity.
 
         
 
         (ex. 9, pp. 25 & 26)
 
         
 
              Dr. Walker further explained his rating in these words:
 
         
 
                 Well, I made a determination, as I guess I have previously 
 
                                                
 
                                                         
 
                   testified, because of the man's complaints. Of course, I 
 
              have to listen to those.  Secondly, the swelling of the 
 
              calf, seven-eighths of an inch.  Thirdly, the bronzing of 
 
              the skin, the skin changes.  And, fourthly, the whole 
 
              picture as I saw it.  And, fifthly, of course, with this 
 
              loss of sensation and paresthesia and anesthesia and 
 
              hypesthesia of the pretibial area on the right.  It's just 
 
              an estimation.  It's a subjective thing on my part.  And 
 
              it's difficult to say that you're a hundred percent 
 
              accurate. It might be more, it might be less, but this was 
 
              my feeling and my impression.  And it still is.
 
         
 
         (ex. 9, p. 30)
 
         
 
              Dr. Walker said he applied the AMA Guidelines, in a slight 
 
         degree, but they did not particularly help in this case.  Dr. 
 
         Walker testified that instead the doctor has to carefully go over 
 
         and over in his mind what the situation is and then come to a 
 
         conclusion (ex. 9, p. 30).  He added that the AMA Guidelines are 
 
         a guide only and that there are other considerations in making an 
 
         impairment decision (ex. 9, pp. 33 & 34).
 
         
 
              Dr. Walker conjectured that long periods of standing would 
 
         bother him more and more, become detrimental and shorten his work 
 
         life to some extent (ex. 9, p. 27).  The doctor said that 
 
         standing on a swollen leg, a weak leg and a numb leg would 
 
         shorten claimant's job longevity (ex. 9, p. 31).
 
         
 
              The charges for Dr. Walker's examination, evaluation, the 
 
         x-rays and the written report totaled $665 (ex. 9, p. 28).
 
         
 
              Dr. Walker reported that due to claimant's circulatory 
 
         problems it may not have been possible for the surgeons to take 
 
 
 
                                  
 
                                                         
 
         the extra time to repair the nerve (ex. 9, p. 29).  The lower leg 
 
         was bloodless, in pallor, white and without circulation. There 
 
         was a great deal of swelling.  That is the reason for the three 
 
         relaxing incisions in the lower leg.  The big arteries and veins 
 
         had to be clamped off.  He thought the surgeon did not want to 
 
         risk greater damage to the lower leg by taking more time to 
 
         repair the saphenous nerve at that time.  Dr. Walker said that no 
 
         explanation was given why they did not follow up with the repair 
 
         of the saphenous nerve in the next two or three weeks (ex. 9, pp. 
 
         32-35).
 
         
 
              Claimant testified that currently the main complaints are 
 
         continuous swelling of the lower leg all of the time, no feeling 
 
         in the lower leg from the knee down and weakness in this leg.  
 
         The swelling and numbness become worse after exertion or 
 
         activity. The leg does not have as much stamina as it used to 
 
         have.  He has trouble standing for long periods of time.  Long 
 
         term standing causes cramping in the leg.  Claimant said just one 
 
         month prior to the hearing, employer transferred him to a new job 
 
         as supervisor of the fabrication department.  Bowling or walking 
 
         causes his right calf to swell up and slows him down.  Claimant 
 
         testified that the swelling did not actually prevent him from 
 
         performing any activities, however, it does slow him down and he 
 
         cannot perform leg activities for the same extended periods of 
 
         time that he could do previously.
 
         
 
              Claimant admitted that he performed his old job after he 
 
         returned to work without any job modifications.  He admitted that 
 
         he had had no medical care since July of 1987.  Claimant alleged 
 
         that Dr. Lamberth had never actually rated his injury.
 
         
 
              Claimant testified that he cannot play baseball, bowl or 
 
         work as long as he used to because his right leg does not have 
 
         the stamina that it used to have prior to the injury.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 4, 1985, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact. Id. at 907.  Further, the weight to 
 
                                                
 
                                                         
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury was the cause of permanent disability.  Even 
 
         though Dr. Lamberth stated early on October 10, 1985, that 
 
         permanent disability was doubtful (ex. 1, p. 18), and concluded 
 
         the last time that he saw claimant in May of 1986 that claimant 
 
         had no permanent functional deficit (ex. 1, p. 26), nevertheless, 
 
         Dr. Lamberth's description of claimant's condition clearly 
 
         describes significant permanent injury to the vascular system and 
 
         significant permanent injury to the nervous system.  Three months 
 
         after the injury and the surgery, claimant's leg was still 
 
         swollen on November 4, 1985.  Dr. Lamberth's venous doppler 
 
         showed vascular obstruction and he ordered a venogram (ex. 1, p. 
 
         19). Dr. Lamberth reported on November 26, 1985, that the venous 
 
         doppler demonstrated that the femoral vein, popliteal, calf and 
 
         saphenous vein were obstructed.  The superficial femoral vein was 
 
         occluded from the proximal thigh on down.  Dr. Lamberth said 
 
         claimant had residual venous occlusion (ex. 1, p. 21).
 
         
 
              On December 9, 1985, Dr. Lamberth said claimant had deep 
 
         venous thrombosis and weakness of the right leg (ex., 1, p. 22).
 
         
 
              On January 13, 1986, Dr. Lamberth said claimant had deep 
 
         venous thrombosis from the knife wound, swelling, some pain, and 
 
         continued venous obstruction with no change (ex. 1, p. 23).
 
         
 
              The last time Dr. Lamberth saw claimant, on May 12, 1986, he 
 
         reported aching pain in the ankle, stiffness in both knees and 
 
         swelling of the right calf.  Claimant still had deep vein 
 
         incompetence in the right superficial femoral, popliteal and calf 
 
         veins (ex. 1, p. 27).
 
         
 
              Thus, Dr. Lamberth's conclusion of no permanent impairment 
 
         is not supported by, but rather is contradicted by, his own 
 
         description of claimant's physical condition.  Claimant testified 
 
         that as far as he knew, Dr. Lamberth never performed an 
 
         examination for the purpose of rating him.  Claimant was unaware 
 
         that Dr. Lamberth ever gave an impairment rating.
 
         
 
              Some consideration must be given to the fact that Dr. 
 
         Lamberth is a vascular surgeon who performed a vascular surgery 
 
         which had a poor result.  Dr. Lamberth may have been reluctant to 
 
         admit that claimant had a permanent impairment as a result of his 
 
         surgery.  Dr. Lamberth never did give a written explanation of 
 
         why the saphenous nerve was not repaired at the time of the 
 
         emergency surgery for the femoral artery or why it was not 
 
         repaired or reconsidered for repair within the next few days or 
 
         weeks.
 
         
 
              Dr. VanGilder reported on November 22, 1985, that the 
 
         laceration of the saphenous nerve was the cause of hypalgesia 
 
                                                
 
                                                         
 
         from the knee to the ankle (ex. 1, p. 20).
 
         
 
              Dr. Meng examined claimant on July 1, 1987, and found that 
 
         claimant's right leg was larger than his left leg, which was 
 
         consistent with the traumatic deep venous thrombosis which 
 
         developed following his injury.  He said that this swelling and 
 
         discomfort would probably persist for the rest of his life (ex. 
 
         1, pp. 28 & 29).  Therefore, his report on October 1, 1987, which 
 
         appears to be to an insurance company representative, that there 
 
         is no permanent partial rating, is a non sequiter compared with 
 
         his report of his examination on July 1, 1987 (ex. 1, p. 30). 
 
         Claimant testified that Dr. Meng never examined his leg, 
 
         administered any tests or took any x-rays.  However, Dr. Meng 
 
         gives several detailed descriptions of the leg itself which 
 
         decidedly controverts claimant's testimony on this point. 
 
         Claimant was correct however, when he said that Dr. Meng told him 
 
         that the swelling and discomfort will probably persist for the 
 
         rest of his life.
 
         
 
              The fact that Dr. Meng did not evaluate and rate the injury, 
 
         in his report of July 6, 1987, lends credence to claimant's 
 
         allegation that Dr. Meng told him that they did not give 
 
         impairment ratings on this type of a case.  Dr. Meng did not 
 
         comment on permanent impairment until he was requested to do so 
 
         by an insurance company representative on October 1, 1987 (ex. 1, 
 
         p. 30).  On October 1, 1987, Dr. Meng said that he did not 
 
         believe that claimant had any permanent partial rating as a 
 
         result of this injury.
 
         
 
              Claimant testified that when he saw Dr. Neff on June 1, 
 
         1988, that Dr. Neff did not examine his right leg.  He performed 
 
         no tests and took no x-rays.  Claimant further alleged that Mr. 
 
         Bower did not examine his right leg, performed no tests and took 
 
         no measurements.  Mr. Bower said that he was not prepared to see 
 
         claimant, had no history for his injury and told him that he 
 
         would have him come back at a later date, but never did so.  Dr. 
 
         Neff never did really purport to personally rate claimant's 
 
         impairment. Dr. Neff simply stated that the AMA Guidelines did 
 
         not cover thrombophlebitis; he referred to Dr. Meng's evaluation; 
 
         and he concurred with it.  He did not evaluate and independently 
 
         rate it (ex. 4, pp. 1 & 2).
 
         
 
              Dr. Shamma on February 7, 1989, confirmed continued swelling 
 
         over three years after the injury, decreased sensation, and 
 
         discoloration.  The right thigh was three centimeters larger than 
 
         the left thigh and the right leg was five centimeters larger than 
 
         the left leg.  Venous doppler revealed reflux of the right deep 
 
         venous system.  Dr. Shamma's report was silent as to whether 
 
         claimant did or did not sustain a permanent impairment.  This 
 
         examination and report was ordered by defendants' attorney (ex. 
 
         1, p. 31).
 
         
 
              It would appear that Dr. Walker performed the first 
 
         realistic examination and evaluation for permanent impairment.  
 
         He is the first doctor whose conclusions are consistent with his 
 
                                                
 
                                                         
 
         medical findings.  He confirmed and corroborated claimant's 
 
         complaints of swelling, numbness, weakness, cramping and pain in 
 
         quite some detail, both in his written medical report and his 
 
         deposition, as set out in the summary of facts above.  He 
 
         unequivocally stated that claimant had sustained an 18 percent 
 
         permanent impairment which was caused by this injury (ex. 9, pp. 
 
         25, 26 & 30).  In this case the testimony of the evaluating 
 
         physician is preferred over the testimony of the treating 
 
         physician and the evaluating physicians at the University of 
 
         Iowa.  Rockwell Graphics Systems, Inc. v. Prince, 366 N.W.2d 187 
 
         (Iowa 1985).
 
         
 
              As far as the saphenous nerve is concerned the AMA 
 
         Guidelines do prescribe a 5 percent maximum impairment for loss 
 
         of function due to sensory deficit, pain or discomfort of the 
 
         sural (external saphenous) nerve in table 14, on page 82.  In 
 
         addition to the nerve injury in this case, claimant also 
 
         sustained a serious vascular system injury.
 
         
 
              As Dr. Neff and Dr. Walker indicated, veins or vascular 
 
         system ratings do not appear in the AMA Guidelines.  Dr. Walker 
 
         testified that you have to apply experience and knowledge to make 
 
         an impairment determination in a case like this.  He applied 39 
 
         years and medical experience in making his determination.  His 
 
         opinion must be respected because he is the only physician whose 
 
         conclusions are consistent with his medical findings.  In 
 
         addition, he did actually examine the leg for the purpose of 
 
         giving a rating.  Claimant testified that Dr. Lamberth did not 
 
         examine his leg for the purpose of making an impairment rating. 
 
         Claimant alleged that Dr. Meng and Dr. Shamma did not actually 
 
         examine his leg; however, it does appear that Dr. Meng did in 
 
         fact examine his leg and that Dr. Shamma did in fact examine his 
 
         leg based upon the reports which they gave.
 
 
 
                                  
 
                                                         
 
         
 
              Claimant testified, and Dr. Walker corroborated, that 
 
         standing on a swollen leg, a numb leg, and a weak leg for long 
 
         periods of time will shorten claimant's work life and job 
 
         longevity.  Defendants may have appreciated this and it may be 
 
         the reason for the fact that claimant was promoted to supervisor 
 
         one month prior to the hearing.  Claimant's attorney calls 
 
         attention in her brief to the case of Wright v. North Des Moines 
 
         Nursing Corp. d/b/a Riverview Manor Nursing Home, IV Iowa 
 
         Industrial Commissioner Report 405 (app. dec. Oct. 7, 1983).  In 
 
         that case claimant had preexisting thrombophlebitis and severe 
 
         degenerative arthritis which was aggravated when he twisted his 
 
         knee at work. Claimant received an award of 16 percent of the leg 
 
         in that case.
 
         
 
              Claimant also calls attention to the case of Arce v. Sandra 
 
         Pollock d/b/a Electric Doughnut, IV Iowa Industrial Report 14 
 
         (filed Nov. 8, 1983), where claimant was awarded a 15 percent 
 
         permanent functional impairment of the right leg caused by the 
 
         pain and discomfort occasioned by prolonged standing.
 
         
 
              Defendants call attention to the case of Kroll v. Iowa 
 
         Southern Utilities, Vol. 1, No. 4 Industrial Commissioner 
 
         Decisions 937 (app. dec. Apr. 30, 1985), with respect to rating 
 
         impairment based upon subjective complaints in absence of 
 
         objective standards such as the AMA Guidelines.  In this case 
 
         there is some guidance from the AMA Guidelines.  Furthermore, as 
 
         Dr. Walker pointed out, the AMA Guidelines are only guidelines. 
 
         The physician then must apply his own personal medical judgment 
 
         to the specific injury which he is rating.  Claimant subjective 
 
         complaints are certainly entitled to some consideration by the 
 
         rating physician if the rating physician believes that they are 
 
         valid factors.
 
         
 
              Therefore, based upon all of the foregoing considerations 
 
         and applying agency expertise with respect to scheduled member 
 
         injuries in similar situations, it is determined that claimant 
 
         has sustained a 10 percent permanent impairment of the right 
 
         lower extremity [Iowa Agency Procedure Act, section 17A.14(5)]. 
 
         Claimant is entitled to 22 weeks of permanent partial disability 
 
         benefits [Iowa Code section 85.34(o)] (220 x .10).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That the stab wound injury of September 4, 1985, to 
 
         claimant's right leg was the cause of permanent disability.
 
         
 
              That claimant sustained a permanent impairment of the 
 
         saphenous nerve and the femoral, popliteal and saphenous leg 
 
         veins.
 
         
 
              That claimant has permanent swelling, numbness and weakness 
 
                                                
 
                                                         
 
         in his right leg as the result of these injuries.
 
         
 
              That claimant sustained a 10 percent permanent impairment of 
 
         the right leg.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         foregoing principles of law the following conclusions of law are 
 
         made.
 
         
 
              That the injury of September 4, 1985, was the cause of 
 
         permanent impairment and disability.
 
         
 
              That claimant is entitled to 22 weeks of permanent partial 
 
         disability benefits based upon a 10 percent permanent impairment 
 
         of the right leg.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant twenty-two (22) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         seventeen and 62/100 dollars ($217.62) per week in the total 
 
         amount of four thousand seven hundred eighty-seven and 64/100 
 
         dollars ($4,787.64) commencing on January 13, 1986, as 
 
         stipulated.
 
         
 
              That these benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants are charged with the costs of this 
 
         proceeding, including one hundred fifty dollars ($150) of the 
 
         expert witness fee for Dr. Walker and one hundred twenty-eight 
 
         and 60/100 dollars ($128.60) for the court reporter fees for the 
 
         deposition of Dr. Walker.
 
         
 
              That defendants file claim activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 28th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       WALTER R. McMANUS, JR.
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
                                                
 
                                                         
 
         
 
         Ms. Jacqueline Jorgensen
 
         Attorney at Law
 
         7177 Hickman Rd
 
         Des Moines, IA  50322
 
         
 
         Mr. Paul Thune
 
         Attorney at Law
 
         218 6th Ave STE 300
 
         PO Box 9130
 
         Des Moines, IA  50306
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
        
 
 
 
 
 
        
 
        
 
                                      1401, 1402.40, 1803
 
                                      Filed March 28, 1989
 
                                      WALTER R. McMANUS, JR.
 
                                      
 
                       BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                      
 
                                      
 
        RUSSELL HOWARD CRAWFORD,
 
        
 
             Claimant,
 
             
 
        vs.                                                  File No. 
 
        803960
 
        
 
        TAMA MEAT PACKING CORPORATION,      A R B I T R A T I O N
 
        
 
            Employer,                                       D E C I S I 
 
        O N
 
        
 
        and
 
        
 
        KEMPER INSURANCE,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        1401, 1402.40, 1803
 
        
 
             Claimant awarded 10 percent permanent partial disability for 
 
             permanent nerve injury and permanent vascular injury manifested 
 
             by chronic swelling, numbness and weakness of the right leg. 
 
             Treating physician and defendants' physicians either failed to 
 
             rate or gave ratings inconsistent with their medical findings. 
 
             Claimant's physician awarded 18 percent and his conclusion was 
 
             based on his medical findings.