BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HOWARD PHILLIPS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 810523 
 
         STYLECRAFT, INC.,
 
                                         A R B I T R A T I 0 N 
 
              Employer,
 
                                         D E C I S I 0 N 
 
         and
 
         
 
         AETNA CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Howard 
 
         Phillips against his former employer Stylecraft, Inc., and its 
 
         insurance carrier Aetna Casualty & Surety Company.  The case was 
 
         heard and fully submitted at Storm Lake, Iowa on May 23, 1989.  
 
         The record in the proceeding consists of testimony from Howard 
 
         Phillips, Dudley Short, John Wells, Paula Zenor and Randy Eakin.  
 
         The record also contains claimant's exhibits 1 through 32 and 
 
         defendants' exhibits A through D.
 
         
 
                                      ISSUES
 
         
 
              Howard Phillips alleges that he sustained injury which arose 
 
         out of and in the course of his employment on or about November 
 
         7, 1985.  He seeks compensation for temporary total disability or 
 
         healing period, permanent partial disability and section 85.27 
 
         benefits.  It was stipulated that in the event of an award the 
 
         rate of compensation is $192.06 per week.  Defendants deny that 
 
         claimant sustained any injury which arose out of and in the 
 
         course of his employment and dispute his entitlement to any 
 
         weekly compensation or section 85.27 benefits.
 
         
 
         
 
         
 
         PHILLIPS V. STYLECRAFT, INC.
 
         Page 2
 
         
 
         
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Howard Phillips is a 39-year-old unmarried man who dropped 
 
         out of high school during the ninth grade in order to operate the 
 
         family 80-acre farm.  Phillips stated that he had bad grades in 
 
         school.  While farming, from approximately 1966 until 1978, he 
 
         also performed other work for other farmers and worked in town.  
 
         He worked at a resort on South Padre Island, Texas from 1980 
 
         through 1983.  Over the years he has worked at the Spirit Lake 
 
         Bakery off and on.  Phillips lived and worked in Colorado 
 
         Springs, Colorado during part of 1983 and 1984.  He lived in 
 
         California during part of 1984 and 1985.  In October of 1985, he 
 
         reentered into employment at Stylecraft, Inc., a business which 
 
         had previously employed him briefly during the early 1980's.  
 
         Claimant stated that most jobs he has held during his lifetime 
 
         have paid at or near the range of minimum wage.  Paula Zenor 
 
         provided October 14,, 1985 as claimant's first day of employment.  
 
         She stated that his rate of pay was $5.20 per hour.
 
         
 
              Phillips testified that his job consisted of loading 
 
         furniture into semi-trucks during the evening shift.  He 
 
         explained that the job was typically performed by placing one 
 
         padded chair upside down on the head and dragging another with 
 
         the hands from the dock into the semi-trailer.  Phillips stated 
 
         that while doing so during the first part of the term of 
 
         employment, he experienced an occasion when he felt pain in the 
 
         side of his neck and back when swinging a chair up onto his head.  
 
         Phillips estimated that each chair weighed at least 50 pounds.  
 
         Phillips stated that he took pain medication provided by the 
 
         employer and continued working until November 7, 1985 when he 
 
         mentioned his problems to personnel director Paula Zenor.  
 
         Phillips stated that by November 7, 1985, his symptoms had 
 
         increased to the point that he was losing feeling in the fingers 
 
         of his hands.  He was sent to Kenneth R. Hunziker, M.D.
 
         
 
              Phillips testified that his problems have not resolved since 
 
         their initial onset despite the fact that he has been evaluated 
 
         and treated by a substantial number of physicians.  Phillips 
 
         stated that he was off work eight or nine months.
 
         
 
         
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 
         Page 3
 
         
 
         
 
              L. A. Dixon, D.C., indicated that claimant had an anterior 
 
         dorsal complex causing upper thoracic pain as well as sixth 
 
         cervical and second cervical subluxation.  Dr. Dixon indicated 
 
         that after treating claimant on October 19, and October 22, 1985, 
 
         his condition had improved (exhibit 25).
 
         
 
              When Phillips was seen on November 8, 1985, Dr. Hunziker, 
 
         felt that he had a cervical strain and trapezius muscle spasm.  
 
         He recommended that claimant be off work and prescribed 
 
         medication, heat therapy and a soft cervical collar (exhibit 13, 
 
         page 68).  A follow-up visit was conducted on November 13, 1985 
 
         at which time the assessment was a cervical strain.  At that time 
 
         claimant was released to return to work effective November 18, 
 
         1985 with restrictions (exhibit 12, page 66; exhibit 13, page 
 
         68).  At that time Dr. Hunziker indicated that claimant had a 
 
         cervical strain which he expected would gradually resolve.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              A subsequent note of November 27, 1985 reports that claimant 
 
         had not returned to work and was continuing to wear the cervical 
 
         collar.  Claimant was seen on that occasion by H. A. Van 
 
         Hofwegen, M.D., who felt that claimant had right posterior 
 
         cervical and right trapezius muscle strain.  He recommended that 
 
         claimant discontinue use of the cervical collar, but continue 
 
         exercises and prescription medication (exhibit 13, page 68).  A 
 
         release to return to work with a restriction against loading was 
 
         issued, effective December 2, 1985 (exhibit 12, page 67).
 
         
 
              Phillips did return to work, but blacked out and was taken 
 
         to the Spencer Hospital by ambulance on December 5, 1985 (exhibit 
 
         13, page 68).  Claimant attributed blacking out to working with 
 
         his head bent forward.  He was hospitalized until December 7, 
 
         1985 with a diagnosis of cervical strain with syncope (exhibit 
 
         13, pages 70 and 71).  A cervical spine x-ray taken December 6, 
 
         1985 was interpreted as showing osteophyte formation at the 
 
         C6/C-7 level of claimant's cervical spine encroaching upon the 
 
         intervertebral foramina.  The radiologist felt that the 
 
         osteophytes were capable of producing a cervical radiculopathy 
 
         (exhibit 14, page 75).
 
         
 
              When seen by Dr. Van Hofwegen on December 13, 1985, claimant 
 
         continued to express complaints of neck pain (exhibit 13, page 
 
         68).  Following release from the hospital, claimant was next seen 
 
         by Dr. Van Hofwegen on January 17, 1986.  The note of that 
 
         examination states in part:
 
         
 
              Patient presents for followup on cervical strain
 
              syndrome with osteophytosis of his cervical
 
         
 
         
 
         
 
         PHILLIPS V. STYLECRAFT, INC.
 
         Page 4
 
         
 
         
 
              vertebra.  He saw a chiropractor in Colorado Springs who 
 
              made diagnosis for every possible problem you can have with 
 
              muscles or the spinal column.
 
         
 
         (Exhibit 13, page 69)
 
         
 
              Exhibit 2 indicates that claimant was evaluated on December 
 
         31, 1985 by James Holden, D.C., at Colorado Springs, Colorado.  
 
         His report is dated January 3, 1986.  Dr. Holden felt that 
 
         claimant had a spondylosis at the C6-7 level and further stated 
 
         that claimant had no preexisting abnormalities in his cervical 
 
         spine (exhibit 16, page 85).  Dr. Holden concluded that the 
 
         history which claimant had provided to him of experiencing the 
 
         onset of discomfort while carrying heavy chairs on his head at 
 
         work established a direct causal relationship between the injury 
 
         and claimant's current symptoms.  The doctor indicated that he 
 
         expected a poor prognosis and that some degree of permanent 
 
         impairment would be likely.  Dr. Holden recommended that claimant 
 
         avoid activities such as lifting, carrying items on his head or 
 
         sitting for prolonged periods with the head and neck flexed.  His 
 
         diagnosis was quite extensive (exhibit 2, page 3; exhibit 16).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was next evaluated by Thomas M. Wilson, Jr., M.D., 
 
         a Minneapolis, Minnesota neurologist.  Dr. Wilson felt that 
 
         claimant exhibited some symptoms compatible with a mild nerve 
 
         root irritation.  He found no objective evidence of a neural 
 
         lesion and indicated that claimant's symptoms indicated a 
 
         functional disturbance.  Dr. Wilson recommended that a myelogram 
 
         and CT scan be performed of claimant's cervical spine and 
 
         encouraged claimant to cease use of the cervical collar (exhibit 
 
         3).
 
         
 
              Claimant was next seen by L. A. Dixon, D.C., on January 17, 
 
         1986.  Dr. Dixon stated that claimant showed signs of 
 
         osteoarthritic changes and that carrying chairs on his head 
 
         apparently aggravated that condition.  Dr. Dixon recommended that 
 
         he be allowed to treat claimant with the goal of relaxing 
 
         claimant's paravertebral muscles and reducing inflammation 
 
         (exhibit 4).
 
         
 
              Claimant was evaluated on January 29, 1986 by William P. 
 
         Isgreen, M.D., a Sioux City, Iowa neurologist.  Dr. Isgreen felt 
 
         that claimant's examination was abnormal and indicated a possible 
 
         defect at the left C5/6 interspace.  He indicated that the case 
 
         may be one which is an aggravation of a preexisting condition and 
 
         recommended further diagnostic tests in the nature of a myelogram 
 
         and CT scan of claimant's cervical spine (exhibit 17).
 
         
 
         
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 
         Page 5
 
         
 
         
 
              Claimant was seen by neurologist Steven R. Adelman, D.O., on 
 
         February 25, 1986.  An EMG examination was conducted which was 
 
         interpreted as showing mild right carpal tunnel syndrome and a 
 
         possible chronic right cervical radiculopathy (exhibit 5, page 
 
         8).  Dr. Adelman recommended that claimant be treated with 
 
         medication and physical therapy.
 
         
 
              J. Michael Donahue, M.D., a Spirit Lake, Iowa orthopaedic 
 
         surgeon, reported on March 21, 1986 that he had evaluated 
 
         claimant and felt that his symptoms could be explained by a 
 
         cervical spine injury and recommended that claimant see a 
 
         neurologist.  Dr. Donahue found no objective evidence of any type 
 
         of nerve root damage and recommended physical therapy and 
 
         biofeedback as a means of controlling claimant's discomfort 
 
         (exhibits 6 and 19).
 
         
 
              Claimant was subsequently seen by Dr. Adelman on April 2, 
 
         1986 at which time he stated that it was difficult to quantify 
 
         claimant's symptoms because they are subjective.  He recommended 
 
         that claimant continue receiving physical therapy until April 25.  
 
         He felt that claimant's symptoms were not "surgical" in nature 
 
         and that a myelogram was therefore inappropriate.  His notes 
 
         indicate that claimant had improved somewhat since being seen 
 
         earlier in February.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was again seen by Dr. Donahue on May 30, 1986 at 
 
         which time Dr. Donahue restated his opinion that claimant was not 
 
         likely to receive long-term relief of his symptoms from physical 
 
         therapy.  He recommended a behavior modification program at a 
 
         pain clinic (exhibit 19, page 96).
 
         
 
              Claimant was examined by James Blessman, M.D., of the Mercy 
 
         Pain Clinic.  The report of June 16, 1986 indicates that claimant 
 
         was seen for intractable pain in the neck.  Dr. Blessman felt 
 
         that claimant had chronic cervical strain, but that secondary 
 
         gain was a factor of importance (exhibit 21).
 
         
 
              Claimant was again seen by Dr. Adelman on July 8, 1986 at 
 
         which time claimant was found to have improved, but to still have 
 
         residual stiffness in his right upper and lower extremities.  
 
         Claimant was still undergoing daily physical therapy at that 
 
         time.  Dr. Adelman recommended that claimant taper off the 
 
         physical therapy.  He released claimant to return to light-duty 
 
         work with limitations on lifting, repetitive bending and overhead 
 
         lifting (exhibit 20, page 100).
 
         
 
              In May of 1986 Richard McCluhan, a vocational consultant, 
 
         became involved in claimant's case.  Claimant
 
         
 
         
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 
         Page 6
 
         
 
         
 
         returned to work in a light job on July 21, 1986, working two 
 
         hours per day.  On September 2, 1986, claimant increased to 
 
         working four hours per day.  By September 16, 1986, claimant 
 
         reported that he was able to work four hours per day without 
 
         major difficulty (exhibit B).  When working with McCluhan, 
 
         claimant had indicated that he planned to return to Colorado 
 
         Springs for the winter (exhibit B).
 
         
 
              Claimant returned to Dr. Donahue on September 15, 1986 at 
 
         which time the notes record that claimant continued to express 
 
         symptoms, although his symptoms had improved somewhat.  The 
 
         assessment made by Dr. Donahue at that time is recurrent 
 
         subjective complaints involving dizziness and total body 
 
         paresthesia.  Dr. Donahue indicated that claimant's complaints 
 
         were unexplainable on either an orthopaedic or neurological 
 
         pathological basis and that he believed that a good portion of 
 
         claimant's discomfort was nonorganic in etiology.  Dr. Donahue 
 
         felt that claimant was more likely to benefit from a pain program 
 
         than from further physical therapy or diagnostic tests.  He saw 
 
         no reason why claimant could not continue working four hours per 
 
         day (exhibit 19, pages 96 and 97).
 
         
 
              On November 17, 1986, Dr. Donahue conducted his final 
 
         evaluation of claimant.  Dr. Donahue found no objective signs of 
 
         impairment and no abnormalities to support a definite diagnosis.  
 
         Dr. Donahue had nothing to offer claimant in the way of further 
 
         treatment and recommended that claimant restrict his activities 
 
         based upon his subjective complaints (exhibit 19, pages 97 and 
 
         98).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant continued working at Stylecraft until October 5, 
 
         1986 when he was summoned to the University of Iowa Hospitals in 
 
         Iowa City for a corneal transplant, a procedure which has no 
 
         relationship to his Stylecraft employment (exhibit 7, page 46).
 
         
 
              Following recuperation from the eye surgery, claimant was 
 
         restricted against working in a dusty environment and no suitable 
 
         work was available at Stylecraft.  Claimant then went to Colorado 
 
         where he obtained a short-term job doing general cleanup and 
 
         maintenance at a racquet club, obtained a second job as a 
 
         groundskeeper, returned to work at the racquet club and then 
 
         became qualified to sell insurance in Colorado.  While in 
 
         Colorado, claimant received additional treatment from Dr. Holden.  
 
         He was then authorized care from Matthew Presti, M.D., who on 
 
         November 12, 1987 found no limitation of claimant's neck motion 
 
         and no neurological deficit to indicate a cervical radiculopathy.  
 
         On January 14, 1988, EMG's showed no evidence of a cervical
 
         
 
         
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 
         Page 7
 
         
 
         
 
         radiculopathy, although the tests did show some indication of 
 
         carpal tunnel syndrome (exhibits 26 and 27).
 
         
 
              Claimant was seen at the University of Iowa Hospitals and 
 
         Clinics on February 5 and 6, 1987.  The examination found 
 
         degenerative joint disease at the C6-7 level.  The examination 
 
         found no other apparent cervical disease or instability.  The 
 
         opinion was expressed that claimant's cervical degeneration did 
 
         not provide an explanation for claimant's blackouts, hand and 
 
         foot numbness or crawling sensations on his face (exhibit 7, 
 
         pages 34-37).  When reporting on March 20, 1987, Charles R. 
 
         Clark, M.D., associate professor, stated that claimant had 
 
         essentially normal motion of his neck and that the neurological 
 
         exam of his neck was intact.  He stated that it would be 
 
         difficult to assign a significant impairment rating secondary to 
 
         claimant's neck.  He estimated that claimant had a partial 
 
         impairment secondary to neck pain of approximately two percent 
 
         (exhibit 7, page 10).
 
         
 
              After working in Colorado, claimant returned to Spirit Lake, 
 
         but then again went back to Colorado where he worked for a carpet 
 
         cleaning company.  He stated that he was unable to do the work 
 
         and then moved to Florida.  Claimant worked in a kitchen at a 
 
         Florida resort, but stated that he began to develop neck and back 
 
         pain which progressively worsened.  He asked for and received 
 
         authorization for medical treatment.  He was sent to David 
 
         Perlmutter, M.D. As a result of an examination conducted on 
 
         January 25, 1989, Dr. Perlmutter reported that he found no 
 
         evidence of any significant neurologic abnormality.  He 
 
         recommended that claimant participate in a work hardening effort.  
 
         Dr. Perlmutter felt that further diagnostic testing was not 
 
         indicated (exhibit 8).  Dr. Perlmutter stated that he agreed that 
 
         there may be some strong magnification components to claimant's 
 
         complaints (exhibit 30).  Claimant stated that after he wore a 
 
         cervical collar to work, the supervisor began to make work more 
 
         difficult for him.  Claimant left the job and obtained employment 
 
         with an acquaintance in the state of New Jersey.  Claimant 
 
         reported that he was ill following the travel for a period of 
 
         four days due to his neck problem.  Claimant stated that while in 
 
         New Jersey, he performed maintenance work in a music studio.  He 
 
         stated that after approximately three months, he had so much 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         trouble from his neck that he returned to Spirit Lake.  One week 
 
         before the date of hearing, he obtained part-time employment at 
 
         the Spirit Lake Bakery where he performs general bakery 
 
         functions.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant was examined by C. B. Carignan, Jr., M.D., on 
 
         September 8, 1988.  Dr. Carignan reported, "No disability
 
         
 
         
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 
         Page 8
 
         
 
         
 
         could be determined at this examination as range of motion, 
 
         sensory and motor function and strength are normal and no pain 
 
         was elicited."  Dr. Carignan went on to recommend that a CT scan 
 
         and myelogram of claimant's cervical spine should be performed 
 
         (exhibit 28).
 
         
 
              J. Michael Donahue, M.D., an orthopaedic surgeon, provided 
 
         evidence by a comprehensive report, exhibit 29, and by 
 
         deposition, exhibit A.  Dr. Donahue in his deposition stated that 
 
         when he first saw claimant on December 23, 1985, the x-rays taken 
 
         showed degenerative changes in claimant's cervical spine.  Dr. 
 
         Donahue also explained that at the initial exam claimant's 
 
         symptoms and complaints were not consistent with the medical 
 
         history and the results of the physical examination.  Dr. Donahue 
 
         stated that he could find no physical or organic cause for 
 
         claimant's discomfort and that he found no evidence of permanent 
 
         impairment.
 
         
 
              Dr. Donahue conducted his final evaluation of the claimant 
 
         on November 17, 1986.  He stated that at that time he found no 
 
         permanent impairment.  He recommended that claimant return to 
 
         work with restrictions based only upon his subjective complaints.  
 
         Dr. Donahue stated that no further diagnostic tests or medical 
 
         treatment was warranted (exhibit A, pages 22 and 23).
 
         
 
              Dr. Donahue stated that claimant showed some signs which 
 
         could indicate that he was suffering from depression.  He stated 
 
         that it was possible that claimant has a chronic cervical strain 
 
         which was causally connected to the ' alleged November 7, 1985 
 
         injury, but he stated that claimant's symptoms were so 
 
         exaggerated that he was unable to make an accurate determination 
 
         (exhibit A, pages 30-37).  It should be noted that Dr. Donahue's 
 
         interpretations of the x-rays taken in December, 1985, are not 
 
         entirely consistent with x-ray interpretations made by other 
 
         practitioners during the 1985-1987 timespan.
 
         
 
              Claimant testified that since the incident, he has never 
 
         been without pain.  He stated that it is his understanding that 
 
         none of the doctors have found any cause for his pain complaints, 
 
         but that he does have pain and some of the doctors have told him 
 
         he has a cervical sprain or soft tissue injury.  Claimant stated 
 
         that he has numbness and tingling in his hands, but that wearing 
 
         a cervical collar alleviates most of the problem.  He stated that 
 
         he has headaches and stabbing pain in his back and in the right 
 
         side of his head and neck.  He experiences occasional tingling in 
 
         his toes.  Claimant related that he has not had any blackouts for 
 
         a couple of years.  Claimant wore a cervical collar to the 
 
         hearing.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 
         Page 9
 
         
 
         
 
              Claimant testified that prior to November of 1985, he had 
 
         experienced occasional aches and pains throughout his body, but 
 
         nothing which he considered abnormal.  He recalled a motorcycle 
 
         accident which had occurred in approximately 1974, but stated 
 
         that he has not been bothered by any injuries from the motorcycle 
 
         accident.  He denied having any serious problems with his neck 
 
         prior to 1985.
 
         
 
              Exhibit 10 consists of records from Spirit Lake Medical 
 
         Center.  A note of July 9, 1976 appears to state, "Pain rt neck 
 
         and shoulder 2 wk -- Injured same shoulder in motorcycle accident 
 
         last year." A note of July 23, 1976 seems to state, "Recheck 
 
         shoulder and neck -- not as stiff as he was but still hurts to 
 
         turn head to rt. pulls into rt shoulder -- Still has headaches 
 
         which are less severe and less frequent --."
 
         
 
              Exhibit 9 is a collection of records from Larry Edson, D.O.  
 
         A note dated September 8, 1980 appears to state:
 
         
 
              Struck on head yesterday by post, scratched scalp.  Headache 
 
              since. [Patient] has somatic dysfunction cervical spine, 
 
              C-2-3,4, rotated to the L. sidebent L. He has a small 
 
              laceration on parietal area.  No evidence for fracture, 
 
              concussion.  Not unconscious, [sic] no amnesia, no head 
 
              signs.
 
         
 
              Claimant was seen by Dr. Edson in April 1985 with complaints 
 
         of headache and sharp chest pain.  A sebaceous cyst was removed 
 
         from his right posterior neck (exhibit 9, page 60).
 
         
 
              Dudley Short, owner of Spirit Lake Bakery, stated that he 
 
         has employed claimant intermittently over a number of years.  He 
 
         considered claimant to be a conscientious worker.  Short related 
 
         that claimant has a work limit of four or five hours per day and 
 
         wears a cervical collar.
 
         
 
              John Wells, a former employee of Stylecraft, worked with 
 
         claimant on the loading crew.  Wells stated that the average 
 
         weight of a chair is approximately 35 pounds and that carrying a 
 
         chair on one's head was a common practice.  Wells stated that 
 
         claimant had complained of pain in his neck and came to work 
 
         wearing a neck brace.  He stated that after that claimant no 
 
         longer carried chairs on his head.  Wells stated that he has seen 
 
         claimant on one or two occasions since he left Stylecraft (prior 
 
         to the few days before hearing) and that claimant was not then 
 
         wearing a cervical collar.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 
         Page 10
 
         
 
         
 
              Paul Zenor, human resources manager at Stylecraft, stated 
 
         that October 14, 1985 was claimant's first day of employment and 
 
         he was paid $5.20 per hour at the start.  Zenor stated that the 
 
         company had attempted to always provide claimant with work, but 
 
         that the last day he actually worked was October 3, 1986 before 
 
         leaving for eye surgery.  Zenor stated that claimant was paid 
 
         $5.00 per hour for part-time work.  She stated that he is 
 
         currently carried in a medical leave status and that his 
 
         employment has not been terminated.  Zenor stated that the 
 
         company was unable to comply with a restriction for a dust-free 
 
         environment when claimant contacted her about returning to work 
 
         following his eye surgery.  Zenor stated that claimant was 
 
         working a four-hour day when he left employment for eye surgery.  
 
         She related that the company does not have regular jobs which 
 
         permit only a four-hour work day.
 
         
 
              Randy Eakin, Stylecraft supervisor, stated that the 
 
         employees who loaded trucks were not required to carry chairs on 
 
         their heads.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on November 7, 1985 which 
 
         arose out of and in the course of his employment. McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury date used was determined by agreement of the 
 
         parties rather than by attempting to specify the precise date of 
 
         any particular incident of trauma.  It is the last day which 
 
         claimant worked before being taken off work.  It does not negate 
 
         any evidence which showed trauma occurring at an earlier date 
 
         during claimant's employment with Stylecraft.
 
         
 
              Claimant's testimony regarding the onset of symptoms 
 
         affecting his neck was corroborated by John Wells, Paula Zenor 
 
         and the records of Dr. Dixon.  Several of the practitioners have 
 
         identified a preexisting degenerative condition in claimant's 
 
         cervical spine which could have been aggravated.  The records 
 
         going back as far as 1976 have shown prior incidents of trauma to 
 
         claimant's cervical spine, namely the motorcycle accident and 
 
         being struck on the head in 1980.  Since claimant had preexisting 
 
         degeneration in his cervical spine it is certainly plausible that 
 
         any activity such as carrying chairs on his head could aggravate 
 
         such a condition.
 
         
 
         
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 11
 
         
 
         
 
              Aggravation of a preexisting condition is one form of 
 
         compensable injury.  While a claimant is not entitled to 
 
         compensation for the results of a preexisting injury or disease, 
 
         the mere existence at the time of a subsequent injury is not a 
 
         defense.  Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 
 
         N.W.2d 756, 760-61 (1956).  If the claimant had a preexisting 
 
         condition or disability that is aggravated, accelerated, worsened 
 
         or lighted up so that it results in disability, claimant is 
 
         entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 
 
         130, 115 N.W.2d 812, 815 (1962) .
 
         
 
              It is therefore determined that Howard Phillips did injure 
 
         his neck by carrying chairs on his head while employed by 
 
         Stylecraft, Inc., during the timespan of October 14, 1985 through 
 
         November 7, 1985.
 
         
 
              Claimant's claim seeks compensation for permanent partial 
 
         disability.  While some of the physicians have diagnosed claimant 
 
         as possibly having a chronic cervical strain or injury of similar 
 
         characteristics, not a single one has found any objective 
 
         evidence of any physical abnormality in claimant's cervical spine 
 
         other than the degeneration which clearly preexisted the injury.  
 
         Since there is no objectively identifiable abnormality, it is 
 
         difficult to establish a causal connection between the symptoms 
 
         and any particular incident or event of trauma.  In the absence 
 
         of any objectively determinable abnormality, it is difficult to 
 
         corroborate the severity of claimant's symptoms.  Waller v. 
 
         Chamberlain Mfg., II Iowa Industrial Commissioner Report 419 
 
         (1981).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of November 7, 1985 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167, (1960).
 
         
 
              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
 
         
 
         
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 12
 
         
 
         
 
         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).
 
         
 
              Some physicians have expressed the opinion that there is a 
 
         causal relationship between claimant's symptoms and the trauma of 
 
         carrying chairs on his head.  Their opinions are, however, based 
 
         upon subjective complaints.  Those opinions were based upon 
 
         symptoms which existed within one year following the dates when 
 
         the trauma occurred.  Some physicians have indicated that 
 
         claimant's symptoms seem to be magnified or exaggerated.  Their 
 
         assessments in that regard is certainly corroborated by 
 
         claimant's wearing of a cervical collar at the hearing in this 
 
         case.  There is no indication from any of the medical 
 
         practitioners that he should continue wearing the collar.  To the 
 
         contrary, the practitioners who have commented upon use of the 
 
         collar have recommended that he discontinue it.  Having observed 
 
         the claimant's appearance and demeanor as he testified at hearing 
 
         and upon considering it in light of the other evidence in the 
 
         case, it is determined that claimant has failed to establish the 
 
         accuracy of his description of the severity of his complaints.  
 
         He has failed to establish by a preponderance of the evidence 
 
         that he has any permanent disability or impairment which was 
 
         proximately caused by any trauma which he sustained while 
 
         carrying chairs for Stylecraft', Inc., in 1985.  Claimant's only 
 
         entitlement is temporary total disability compensation and 
 
         temporary partial disability compensation.  Claimant is entitled 
 
         to recover temporary total disability compensation payable 
 
         commencing November 8, 1985 and running through November 17, 1986 
 
         when Dr. Donahue made his final evaluation.  It is determined 
 
         that at that time it was medically indicated that claimant was 
 
         medically capable of returning to employment substantially 
 
         similar to that in which he was engaged at the time of injury.  
 
         Dr. Donahue's only restrictions were based upon subjective 
 
         complaints, rather than any actual medical cause.  His 
 
         restrictions were simply in the nature of permitting claimant to 
 
         avoid things which he perceived to be painful.
 
         
 
              It is recognized that claimant did return to work for this 
 
         employer commencing on or about July 21, 1986 and continued to 
 
         work until on or about October 3, 1986 when he left in order to 
 
         have eye surgery.  Since this was not fulltime work, claimant 
 
         would be entitled to recover temporary partial disability 
 
         compensation under Iowa Code section 85.33(2) in addition to his 
 
         wages, but the record of this
 
         
 
         
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Page 13
 
         
 
         
 
         case does not provide a precise showing of what wages claimant 
 
         actually earned.  The determination must be made on the best 
 
         evidence available.
 
         
 
              While it is clear that claimant was off work for a 
 
         nonwork-related eye surgery subsequent to October 3, 1986, the 
 
         record fails to show that the criteria for ending the temporary 
 
         total disability entitlement had occurred.  The fact that 
 
         claimant was also disabled for a nonwork-related cause does not 
 
         extinguish his right to temporary disability compensation.  It is 
 
         determined that claimant's need for corneal transplant surgery 
 
         does not constitute a refusal of employment which would 
 
         disqualify him from receiving temporary partial disability 
 
         compensation.  Under the unique circumstances of this case, 
 
         however, it is determined that the employer is responsible for 
 
         payment of temporary partial disability compensation from October 
 
         3, 1986 through November 17, 1986 based upon claimant working 
 
         four hours per day, five days per week, rather than to be 
 
         responsible for the full weekly temporary total disability 
 
         amount.  Working 20 hours per week at $5.00 per hour would 
 
         provide gross earnings of $100.00 per week.
 
         
 
              By way of computation, claimant's weekly rate of 
 
         compensation of $192.06, as established by stipulation, is 
 
         equivalent to gross weekly earnings of $318.00 for a single 
 
         person with one exemption.  The difference between $318.00 and 
 
         the $100.00 per week which claimant was apparently earning is 
 
         $218.00.  Accordingly, the temporary partial disability 
 
         compensation benefit is $145.33 per week for those times when 
 
         claimant was working four hours per day and for the period of 
 
         time subsequent to October 3, 1986.  For the period of time 
 
         claimant was working two hours per day at the rate of $5.00, it 
 
         would appear that his gross weekly earnings would be $50.00.  The 
 
         difference between $318.00 and $50.00 is $268.00.  Two-thirds of 
 
         $268.00 is $178.67.  It would thus appear that the rate of 
 
         temporary partial disability compensation payable for the period 
 
         of time running from July 21, 1986 through September 1, 1986 is 
 
         $178.67 per week.  The temporary partial disability rate of 
 
         $145.33 per week should be payable for the period of time running 
 
         from September 2, 1986 through November 17, 1986.
 
         
 
              Claimant's total entitlement to weekly compensation is 
 
         therefore temporary total disability at the rate of  $192.06 per 
 
         week payable commencing November 8, 1985 and running through July 
 
         20, 1986, a span of 36 3/7 weeks; temporary partial disability 
 
         compensation at the rate of  $178.67 per week payable commencing 
 
         July 21, 1986 and running through September 1, 1986, a span of 6 
 
         1/7 weeks; and, temporary partial disability compensation at the 
 
         rate of $145.33 per
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         PHILLIPS v. STYLECRAFT, INC.
 
         Page 14
 
         
 
         
 
         week payable commencing September 2, 1986 and running through 
 
         November 17, 1986, a span of 11 weeks.
 
         
 
              Claimant seeks section 85.27 benefits.  From the record 
 
         made, there has been no itemized statement of showing what 
 
         expenses were incurred with which practitioner and when they were 
 
         incurred.  It is determined that claimant's treatment with 
 
         chiropractor Holden in Colorado has not been shown to have been 
 
         reasonable, necessary or beneficial.  Defendants are therefore 
 
         not responsible for payment of the charges incurred with him.  If 
 
         defendants have not already done so, they are liable for payment 
 
         of expenses incurred with physicians to whom they directed the 
 
         claimant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Howard Phillips injured his neck by carrying chairs on 
 
         his head while employed by Stylecraft, Inc., during the period of 
 
         October 14, 1985 through November 7, 1985.
 
         
 
              2. The injury was an aggravation of a preexisting 
 
         degenerative condition.
 
         
 
              3. Claimant has failed to introduce evidence showing it to 
 
         be more likely than not that the actual severity of his 
 
         complaints is accurately described by his testimony.
 
         
 
              4. Claimant has failed to introduce evidence which shows it 
 
         to be more likely than not that the activity of carrying chairs 
 
         on his head at Stylecraft, Inc., was a substantial factor in 
 
         producing the long-term, continuing symptoms and complaints which 
 
         he described at hearing.
 
         
 
              5. Howard Phillips was medically incapable of performing 
 
         work in employment substantially similar to that he performed at 
 
         the time of injury commencing on November 8, 1985 and running 
 
         through November 17, 1986.
 
         
 
              6. Howard Phillips performed work for the employer which was 
 
         consistent with his disability for two hours per day commencing 
 
         July 21, 1986 and running through September 1, 1986 for which he 
 
         was paid at the rate of $5.00 per hour.
 
         
 
              7. Howard Phillips performed work for the employer which was 
 
         consistent with his disability for four hours per day commencing 
 
         September 2, 1986 and running through October 3, 1986 for which 
 
         he was paid at the rate of $5.00 per hour.
 
         
 
              8. Commencing October 4, 1986 and running through November 
 
         17, 1986, Howard Phillips was unable to perform any work for the 
 
         employer due to his need to undergo corneal
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 
         Page 15
 
         
 
         
 
         transplant surgery for a condition which was not related to his 
 
         employment.  Phillips did not actually refuse to perform work for 
 
         the employer during that period of time.  If Phillips had not 
 
         been called for transplant surgery, it is likely that he would 
 
         have continued to work four hours per day until November 17, 
 
         1986.
 
         
 
              9. The record in this case fails to show that it is probable 
 
         that Howard Phillips has any permanent impairment of any function 
 
         of his body or any permanent disability in an industrial sense as 
 
         a result of his activity in carrying chairs for the employer.
 
         
 
              10. On November 17, 1986, it was medically indicated that 
 
         claimant was capable of resuming employment substantially similar 
 
         to that in which he was engaged at the time of injury.  The 
 
         restrictions which were imposed by Dr. Donahue were based upon 
 
         claimant's subjective complaints, which complaints have not been 
 
         shown to be credible or causally connected with the November 7, 
 
         1985 injury.
 
         
 
              11. The assessment of this case made by Dr. Donahue is 
 
         accepted as being correct wherever it conflicts with the 
 
         assessments made by any of the other physicians or practitioners.  
 
         He is a qualified orthopaedic surgeon and appears to be more 
 
         familiar with all aspects of the case than any other physician.
 
         
 
                                CONCLUSIONS OF LAW
 
                                        
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2. Howard Phillips sustained an injury in the nature of an 
 
         aggravation of a preexisting condition which arose out of and in 
 
         the course of his employment with Stylecraft, Inc., on November 
 
         7, 1985.
 
         
 
              3. Howard Phillips has failed to prove by a preponderance of 
 
         the evidence that he is entitled to recover any compensation for 
 
         permanent disability.
 
         
 
              4. Claimant proved by a preponderance of the evidence an 
 
         entitlement to receive 36 3/7 weeks of compensation for temporary 
 
         total disability compensation payable commencing November 8, 
 
         1985.
 
         
 
              5. Claimant proved by a preponderance of the evidence an 
 
         entitlement to receive 6 1/7 weeks of temporary partial 
 
         disability compensation payable at the rate of $178.67 per week 
 
         commencing July 21, 1986.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 
         Page 16
 
         
 
         
 
              6. Claimant proved an entitlement to recover 11 weeks of 
 
         temporary partial disability payable commencing September 2, 1986 
 
         at the rate of $145.33 per week.
 
         
 
              7. Claimant has failed to prove entitlement under Iowa Code 
 
         section 85.27 to payment of any treatment expenses.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that defendants pay claimant 
 
         thirty-six and three sevenths (36 3/7) weeks of temporary total 
 
         disability compensation payable commencing November 8, 1985 at 
 
         the rate of one hundred ninety-two and 06/100 dollars ($192.06) 
 
         per week.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant six and 
 
         one-seventh (6 1/7) weeks of temporary partial disability 
 
         compensation payable commencing July 21, 1986 at the rate of one 
 
         hundred seventy-eight and 67/100 dollars ($178.67) per week.
 
         
 
              IT IS FURTHER ORDERED that defendants pay claimant eleven 
 
         (11) weeks of compensation for temporary partial disability 
 
         commencing September 2, 1986 at the rate of one hundred 
 
         forty-five and 33/100 dollars ($145.33) per week.
 
         
 
              IT IS FURTHER ORDERED that defendants receive credit for all 
 
         amounts of weekly compensation previously paid and that all 
 
         unpaid balances be paid to claimant in a lump sum together with 
 
         interest pursuant to Iowa Code section 85.30 computed from the 
 
         date each weekly payment came due until the date of actual 
 
         payment.
 
         
 
              IT IS FURTHER ORDERED that claimant recover the costs of 
 
         this action from defendants pursuant to Division of Industrial 
 
         Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 31st day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         PHILLIPS v. STYLECRAFT, INC.
 
         Page 17
 
         
 
         
 
         Copies To:
 
         
 
         Mr. E. W. Wilcke
 
         Attorney at Law
 
         826 1/2 Lake Street
 
         P.O. Box 455
 
         Spirit Lake, Iowa  51360
 
         
 
         Ms. Lorraine J. May
 
         Mr. Glenn Goodwin
 
         Attorneys at Law
 
         4th Floor, Equitable Building
 
         Des Moines, Iowa 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51402.30, 51402.40, 51801
 
                                         1801.1
 
                                         Filed January 31, 1990
 
                                         MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         HOWARD PHILLIPS,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                         File No. 810523 
 
         STYLECRAFT, INC.,
 
                                         A R B I T R A T I 0 N 
 
              Employer,
 
                                         D E C I S I 0 N 
 
         and
 
         
 
         AETNA CASUALTY & SURETY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51402.30, 51402.40, 51801
 
         
 
              Claimant suffered an injury in the nature of an aggravation 
 
         of a preexisting condition.  There was no objective medical 
 
         evidence to support his complaints.  It was held that the injury 
 
         was only a temporary aggravation.  Claimant awarded temporary 
 
         total disability and temporary partial disability compensation.
 
         
 
         1801.1
 
         
 
              Temporary partial disability was computed based upon the 
 
         oral descriptions of claimant's work hours and rate of pay while 
 
         he was returning to work at alternate employment and working 
 
         reduced hours.  Actual records of actual earnings were not 
 
         contained in the evidence.  Where claimant had to leave the 
 
         employment during the period of temporary partial disability 
 
         entitlement in order to receive transplant surgery, such was held 
 
         to not be a refusal which would disqualify him from all benefits.  
 
         A finding was made that he would have continued to work at the 
 
         reduced hours until the end of the temporary total/temporary 
 
         partial disability recovery period.  Temporary partial disability 
 
         was awarded for those remaining weeks based upon work of four 
 
         hours per day, the amount claimant had been performing before 
 
         being called to receive the transplant.  The transplant was not 
 
         for a work-related injury or condition.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH FRAZIER,
 
         
 
              Claimant,
 
                                                File No. 810540
 
         vs.
 
                                             A R B I T R A T I O N
 
         H & W MOTOR EXPRESS COMPANY
 
                                                D E C I S I O N
 
              Employer,
 
              Self-Insured,                        F I L E D
 
               Defendant.
 
                                                  MAR 10 1989
 
         
 
                                        IOWA INDUSTRIAL COMMISSIONER
 
                                       
 
                                       
 
                                   INTRODUCTION
 
                                                 
 
              This is a proceeding in arbitration brought by the claimant, 
 
         Joseph Frazier, against his self-insured employer, H & W Motor 
 
         Express Company, to recover benefits as a result of an injury 
 
         occurring on November 18, 1985.  This matter came on for hearing 
 
         before the undersigned deputy industrial commissioner in Des 
 
         Moines, Iowa, on January 10, 1989.
 
         
 
              The record in this proceeding consists of the testimony of 
 
         claimant, Don R. Walling, joint exhibits A through W, and 
 
         defendant's exhibits A, B and C.
 
         
 
              Claimant offered exhibit X into evidence which is the 
 
         deposition of John R. Walker, M.D., taken January 5, 1989. 
 
         Defendant objected to this exhibit for the reason that Dr. Walker 
 
         was not listed on the claimant's witness list that was exchanged 
 
         pursuant to the hearing assignment order of November 1, 1988. 
 
         Claimant contends that witnesses, particularly the doctor's 
 
         testimony that is taken by way of deposition, need not be listed 
 
         as a witness but will be presumed to be a witness due to the 
 
         deposition being taken.  This deputy reserved a decision on this 
 
         objection until the time of this decision.  Defendant's objection 
 
         is sustained and claimant's exhibit X will not be received into 
 
         evidence.  The hearing assignment order provides that a list of 
 
         all witnesses to be called at the hearing and a list of all 
 
         proposed exhibits to be offered into evidence at the hearing 
 
         along with copies of all written exhibits not previously served 
 
         shall be served on opposing parties no later than fifteen days 
 
         prior to the date of hearing.  Only those witness listed will be 
 
         permitted to testify at the hearing unless their testimony is 
 
         clearly rebuttal or surrebuttal.  Exhibit X was claimant's 
 
         attempt to present the testimony of Dr. Walker at the hearing.  
 
         Exhibit X was additionally not listed as an exhibit as provided 
 
         by the hearing assignment order and, in fact, defendant was not 
 
         notified of this exhibit until a supplemental list of exhibits 
 
         was provided on January 6, 1989.  This was not timely under said 
 
         order.  Exhibit X will not be received into evidence or 
 
         considered any further in this decision.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              
 
              The undersigned ruled on objection of claimant to 
 
         defendant's exhibit C, which objection was overruled.  A same or 
 
         similar objection by way of a motion to exclude exhibits was 
 
         filed by claimant and received by Iowa Industrial Commissioner at 
 
         1:24 p.m. January 9, 1989, which motion was not received in the 
 
         undersigned deputy's possession until January 11, 1989 after the 
 
         hearing was over.  This motion to exclude exhibits involving the 
 
         personal file in possession of H & W Motor Express, including 
 
         personal records from Takin Brothers or Kroblin and claimant's 
 
         retirement records, is overruled.  These records for most part 
 
         were part of the Iowa Industrial Commissioner's file of this 
 
         claimant pursuant to a prior settlement on file with the 
 
         commissioner, and this deputy takes official notice of these 
 
         records.  In addition thereto, the exhibits were timely listed 
 
         per the hearing assignment order.
 
         
 
                                      ISSUES
 
         
 
              The issues for resolution are:
 
         
 
              1.  Whether claimant's injury occurring on November 18, 1985 
 
         arose out of and in the course of employment;
 
         
 
              2.  Whether there is a causal connection between claimant's 
 
         injury and his disability;
 
              
 
              3.  The nature and extent of claimant's disability; and
 
              
 
              4.  Whether the bills of Dr. John R. Walker, M.D., in the 
 
         amount of $457 and Fred J. Pilcher, M.D., in the amount of $130 
 
         should be paid under 85.27 and/or 85.39.
 
              
 
                              REVIEW OF THE EVIDENCE
 
                
 
              Defendant testified he was injured November 18, 1985 when, 
 
         while employed as a truck driver for defendant, he slipped off a 
 
         wet step getting out of his truck.  Claimant indicated upon 
 
         falling three feet to the pavement, he bumped his head, cracked 
 
         his shoulder and landed on his left hip.
 
         
 
              Claimant stated that he continued to have complaints in his 
 
         neck, shoulder, lower back and left knee and that on February 17, 
 
         1986, Fred J. Pilcher, M.D., operated on his left knee.  Claimant 
 
         opined he was in good health prior to his November 18, 1985 
 
         injury and had been a truck driver for various employers since 
 
         1948. Claimant stated his work also included light to heavy 
 
         lifting, bending, twisting, loading and unloading trucks.  
 
         Claimant emphasized he can no longer perform the physical duties 
 
         required as a clerical worker, sales person, city driver, 
 
         over-the-road driver, dockman or mechanic.  Claimant acknowledged 
 
         that on April 15, 1986, Dr. Pilcher released claimant to return 
 
         to work without any restrictions, but claimant revealed that 
 
         around April 1, 1986, he retired on his pension and now spends 
 
         his winters with his wife, who had retired prior to 1985, in Rio 
 
         Grande, Texas. Claimant stated he would have worked longer until 
 
         60 or more if he was physically able.  Claimant testified that he 
 
         has applied for no jobs or unemployment and that the defendant 
 
         offered claimant a choice of jobs.  Claimant has not worked since 
 
         November 18, 1985.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant indicated his present complaints as:  He can't lay 
 
         on his side, his shoulder bothers him, numbness in low back, 
 
         can't sit too long, left knee hurts, can't walk too far, stiff 
 
         neck, can't do heavy lifting, can't sleep well, can't bowl, and 
 
         can't do household chores.  Claimant acknowledged that he has had 
 
         no treatments since Dr. Pilcher released him on May 15, 1986 with 
 
         no restrictions.
 
         
 
              Claimant emphasized that he is not interested in vocational 
 
         rehabilitation as he and his wife get by on his and her pensions. 
 
         Claimant testified that he had not collected workers' 
 
         compensation benefits for his neck or shoulder before 1985, but 
 
         upon being shown defendant's exhibit C, claimant recollected and 
 
         admitted he had a prior case settlement before the Iowa 
 
         Industrial Commissioner.
 
         
 
              Donald R. Walling, vice president of operations and labor 
 
         for defendant, testified that when Dr. Pilcher released claimant 
 
         in April 1986 to full duties, there was a job with defendant 
 
         available.  Walling stated that claimant never asked for 
 
         vocational rehabilitation and claimant has not contacted 
 
         defendant since claimant's retirement in 1986.  Walling 
 
         emphasized that claimant submitted his resignation to defendant 
 
         in order for claimant to take his retirement and therefore 
 
         claimant was off the seniority list.
 
         
 
              Dr. Pilcher signed a work release on April 7, 1986 which 
 
         stated:  "Unlimited work assignment - may return to regular 
 
         employment in full capacity 4-15-86."  (Joint Exhibit E, page 6) 
 
         On August 19, 1986, Dr. Pitcher wrote:
 
         
 
                   This is more or less a follow-up on the knee injury 
 
              that I cared for and you have copies of notes including the 
 
              office notes and the operative note.  There is some concern 
 
              about final disability.  A portion of his meniscus was 
 
              resected and he has just minimal loss of motion.  I would 
 
              say he has 3% impairment to his lower extremity.
 
         
 
         (Jt. Ex. E, p. 7)
 
         
 
              On October 28, 1987, Dr. Pilcher wrote:
 
         
 
                   As you can see, he has continued aches and pains.  I 
 
              suspect he has probably reached his point of maximum 
 
              improvement.  As one can see, the worksheet is there 
 
              concerning the evaluation of his separate disabilities.
 
         
 
                   The shoulder loss of range of motion is 15% impairment 
 
              to the upper extremity, with three percent arbitrarily added 
 
              to the pain and weakness, making a total of 18% upper 
 
              extremity impairment.  This equates to 11% of the body.
 
         
 
                   The neck and back vague complaints I am aribtrarily 
 
              (sic] placing one percent on each one of these.  This is a 
 
              total of two percent to the body.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
                   He has had a partial meniscectomy and he has had some 
 
              pain and weakness (sic] since.  Based on his complaints in 
 
              regard, I am adding a five percent impairment to the knee or 
 
              two percent of the body.  Therefore, he has a total of 15% 
 
              impairment to the body.
 
         
 
         (Jt. Ex. E, p. 11)
 
         
 
              Pursuant to a physical examination on October 27, 1986 John 
 
         R. Walker, M.D., rendered the following opinion:
 
         
 
              He has a contracture of the left shoulder, with lack of 
 
              external rotation and full abduction, pain and discomfort 
 
              and some deltoid atrophy, with tenderness over the point of 
 
              the shoulder itself.  I believe that he has suffered a 
 
              permanent, partial impairment of 10% of the left shoulder 
 
              which would translate in to 6% of the body as a whole.
 
         
 
                   As far as the left knee is concerned I believe that he 
 
              has a 9% permanent, partial impairment which reduces to 4% 
 
              of the body as a whole.
 
         
 
                   In the lumbar spine I believe that this patient has a 
 
              chronic lumbar sprain at L-3, L-4 and L-4, L-5 as well as a 
 
              left sacroiliac sprain.  I believe that these lesions total 
 
              his permanent partial impairment at 8% of the body as a 
 
              whole.
 
         
 
                   The cervical spine shows a lot of arthritic changes 
 
              with spondylosis and he has had some pre-existing disability 
 
              here as far as x-ray pictures are concerned, although he 
 
              admits to no particular problems or symptomatology prior to 
 
              the fall. It is therefore my opinion that he has added a 4% 
 
              permanent, partial impairment to the body as a whole as far 
 
              as the cervical spine injuries are concerned.  This then 
 
              adds up to a total, permanent, partial disability amounting 
 
              to 22% of the body as a whole.  Probably some physical 
 
              therapy would give him some symptomatic relief, but I don't 
 
              believe it would change the course of this man's problems 
 
              and complaints.
 
         
 
         (Jt. Ex. G, p. 4)
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Iowa Code section 85.34(l) 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 85.34(2) provides that compensation for 
 
         permanent partial disability shall begin at the termination of 
 
         the healing period.  Iowa Code section 85.34(2)"u" provides that 
 
         compensation for a nonscheduled or body as a whole injury shall 
 
         be paid in relation to 500 weeks that the disability bears to the 
 
         body as a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on November 18, 1985 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              Claimant also has the burden of proving by a preponderance 
 
         of the evidence that the injury of November 18, 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, 261 Iowa 352, 154 
 
         N.W.2d 128.
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects (or compensatory change), result in permanent impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
         Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              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 impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
         257 (1963).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's credibility is suspect because of the 
 
         inconsistency of his testimony concerning his prior injury and 
 
         the later evidence introduced.  Furthermore, the medical evidence 
 
         upon which this case is based also appears to fail to have a 
 
         history regarding claimant's prior accident.
 
         
 
              This 58 year old claimant completed the eighth grade and 
 
         received no further formal education.  For the most part, he has 
 
         had menial type jobs after high school graduation until 1948 when 
 
         he has been mainly a truck driver which also involved light to 
 
         heavy lifting, twisting, bending, and loading and unloading 
 
         trucks.  Claimant was injured on November 18, 1985 while employed 
 
         by defendant and the injury arose out of and in the course of his 
 
         employment.
 
         
 
              The claimant was released to return to his full duties at 
 
         work with no restrictions on April 15, 1986.  At this time, 
 
         claimant did not feel that he was able to work or do the job that 
 
         he did before the injury.  His knee was still bothering him and 
 
         he did not feel he could withstand the jarring around and turning 
 
         in the trucks.  The evidence indicates that claimant reached his 
 
         maximum healing by April 15, 1986.
 
         
 
              The evidence shows that claimant then retired around May 1, 
 
         1986 and submitted his resignation to the employer and started 
 
         taking his retirement.  It is obvious claimant has no desire to 
 
         continue working, or to search for jobs.  He seems satisfied in 
 
         his retirement and the ability to go to warmer climate several 
 
         months of the year.  It is understandable that claimant at his 
 
         age and with his work experience after approximately 38 years as 
 
         a truck driver would not be interested in taking on new work 
 
         ventures in other fields or start other careers that he might, in 
 
         fact, be able to do.  The fact that claimant's wife had already 
 
         retired appears to have affected the motivation of this claimant. 
 
         Claimant was injured and has received impairment ratings from two 
 
         doctors.  Claimant's earnings were not affected by this injury 
 
         because claimant could have returned to employment with 
 
         defendant. Claimant has chosen to retire which will substantially 
 
         affect his earnings.  Loss of earnings is not the deciding 
 
         factor.  It is loss of earning capacity.  This claimant has a 
 
         loss of earning capacity brought about by his impairment 
 
         resulting in a disability.
 
         
 
              Dr. Pilcher gave a 15 percent impairment to the body as a 
 
         whole after individually evaluating the claimant's shoulder, 
 
         knee, and lumbar and cervical spine impairments.  Dr. Walker gave 
 
         claimant a 22 percent impairment to the body as a whole after 
 
         considering the same impairments to the various parts of 
 
         claimant's body.  Dr. Pilcher was involved in the evaluation and 
 
         treatment of claimant within approximately 30 days of his injury. 
 
         Dr. Walker first examined claimant approximately one year after 
 
         his injury.  Dr. Pilcher performed the knee surgery.  The greater 
 
         weight of medical evidence shows that Dr. Pilcher's impairments 
 
         to be closer to what the undersigned believes that they are and 
 
         that claimant, in fact, has a 15 percent impairment to his body 
 
         as a whole.  However, physical impairment is only one of the 
 
         factors in industrial disability.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's age, education and prior work are considered in 
 
         determining whether claimant has a loss of earning capacity. 
 
         Claimant could have returned to work.  There was a job available 
 
         for him but instead claimant chose to submit his resignation and 
 
         take his retirement.  Claimant has a 10 percent industrial 
 
         disability to the body as a whole.
 
         
 
              Claimant was released to return to work on April 15,.1986. 
 
         His healing period ended on this date.  Claimant is entitled to 
 
         healing period benefits beginning November 19, 1985 through April 
 
         14, 1986.
 
         
 
              Iowa Code section 85.27 provides, in pertinent 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 
 
              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 85.39 provides, in pertinent part:
 
         
 
                   If an evaluation of permanent disability has been made 
 
              by a physician retained by the employer and the employee 
 
              believes this evaluation to be too low, the employee shall, 
 
              upon application to the commissioner and upon delivery of a 
 
              copy of the application to the employer and its insurance 
 
              carrier, be reimbursed by the employer the reasonable fee 
 
              for a subsequent examination by a physician of the 
 
              employee's own choice, and reasonably necessary 
 
              transportation expenses incurred for the examination.
 
         
 
              Claimant went to Dr. Walker for an examination, not 
 
         treatment.  Claimant was originally referred to Dr. Basler by 
 
         defendant's doctor.  Dr. Basler referred claimant to an 
 
         orthopedic doctor, Dr. Pilcher, who rendered a rating.  Claimant 
 
         went to Dr. Walker to get an impairment rating to see if it 
 
         agreed with or was different than the rating defendant's doctor, 
 
         Dr. Pilcher, gave. An 85.39 application was made and per ruling 
 
         made on April 13, 1987, it was ordered that this issue be 
 
         identified at the time of prehearing.  This issue was properly 
 
         listed in the hearing assignment order and is a proper issue for 
 
         discussion herein.  Dr Walker's $457 bill should be paid by 
 
         defendant.  Dr. Pilcher was a doctor authorized by defendant and 
 
         claimant used his services. Defendant should pay Dr. Pilcher's 
 
         bill in the amount of $130.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Claimant was injured on November 18, 1985 when, while 
 
         working for defendant, he slipped on a wet step while getting out 
 
         of his truck.
 
         
 
              2.  Claimant had a partial meniscectomy in February 1986.
 
         
 
              3.  As a result of claimant's injury, he has problems with 
 
         his knee, shoulder and back.
 
         
 
              4.  Claimant reached maximum medical recovery on April 15, 
 
         1986.
 
         
 
              5.  Claimant has not been employed since his injury of 
 
         November 18, 1985.
 
         
 
              6.  Claimant was offered a return of his former job.
 
              
 
              7.  Claimant has not sought work or applied for jobs since 
 
         his injury of November 18, 1985.
 
         
 
              8.  Claimant is 58 years old and has an eighth grade 
 
         education and primarily earned his living as a truck driver.
 
         
 
              9.  Claimant has a loss of earning capacity as a result of 
 
         the work injury of November 18, 1985.
 
         
 
              10.  Claimant has a permanent impairment as a result of the 
 
         work injury.
 
         
 
              11.  Claimant was off work beginning November 19, 1985 
 
         through April 14, 1986 as a result of his injury of November 18, 
 
         1985.
 
         
 
              12.  Claimant has incurred a bill in the amount of $457 with 
 
         Dr. John R. Walker and a bill in the amount of $130 with Dr. Fred 
 
         J. Pilcher.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant's injury arose out of and in the course of his 
 
         employment.
 
         
 
              Claimant has established he sustained a permanent partial 
 
         disability of 10 percent for industrial purposes as a result of 
 
         the work injury of November 10, 1985.
 
         
 
              Claimant has established his entitlement to healing period 
 
         benefits for the period beginning November 19, 1985 through April 
 
         14, 1986, inclusive.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant has established his entitlement to medical benefits 
 
         pursuant to Iowa Code section 85.39 and 85.27.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant shall pay unto claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of three 
 
         hundred ninety-six and 25/100 dollars ($396.25) commencing April 
 
         15, 1986.
 
         
 
              That defendant shall pay claimant twenty-one (21) weeks of 
 
         healing period benefits at a rate of three hundred ninety-six and 
 
         25/100 dollars ($396.25) for the period beginning November 19, 
 
         1985 through April 14, 1986 and defendant shall be given credit 
 
         for amounts already paid.
 
         
 
              That defendant is to pay the medical bills of John R. 
 
         Walker, M.D., in the amount of four hundred fifty-seven dollars 
 
         ($457.00) and Dr. Fred J. Pilcher in the amount of one hundred 
 
         thirty dollars ($130.00) and to be given credit for any amounts 
 
         already paid.
 
         
 
              That defendant shall pay accrued weekly benefits in a lump 
 
         sum.
 
         
 
              That defendant shall pay interest on the unpaid weekly 
 
         benefits awarded therein as set forth in Iowa Code section 85.30.
 
         
 
              That defendant shall file an activity report upon payment of 
 
         this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              That defendant is to pay the costs of this action.
 
         
 
              Signed and filed this 10th day of March, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         BERNARD J. O'MALLEY
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
                                                                     
 
         
 
         Copies to:
 
         
 
         Mr. Thomas J. Currie
 
         Attorney at Law
 
         3401 Williams Blvd SW
 
         P.O. Box 998
 
         Cedar Rapids, IA  52406
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         Mr. Stephen W. Spencer
 
         Attorney at Law
 
         218 6th Ave, Ste 300
 
         P.O. Box 9130
 
         Des Moines, IA  50306
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                            1804
 
                                            Filed March 10, 1989
 
                                            Bernard J. O'Malley
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH FRAZIER,
 
         
 
              Claimant,
 
                                                File No. 810540
 
         vs.
 
         
 
         H & W MOTOR EXPRESS COMPANY         A R B I T R A T I 0 N
 
         
 
              Employer,                         D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         1804
 
         
 
              Trucker, who slipped and fell, received 15% impairment but 
 
         proved a 10% industrial disability.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            DAVID G. LOCKWOOD,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :         File No. 810695
 
            RUAN TRANSPORT,               :
 
                                          :      A R B I T R A T I O N
 
                 Employer,                :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            CARRIERS INSURANCE COMPANY,   :
 
            by IOWA INSURANCE GUARANTY    :
 
            ASSOCIATION,                  :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by David G. 
 
            Lockwood against Ruan Transport, his former employer, based 
 
            upon an alleged injury of September 18, 1985.  The primary 
 
            issue to be determined is whether claimant's retinal 
 
            detachment is the result of an injury which arose out of and 
 
            in the course of employment.  He seeks compensation for 
 
            healing period, permanent partial disability and payment of 
 
            medical expenses.
 
            
 
                 The case was heard and fully submitted at Mason City, 
 
            Iowa on February 5, 1991.  The evidence consists of 
 
            testimony from David G. Lockwood and Richard Whitney.  The 
 
            record also contains claimant's exhibits A and B and 
 
            defendants' exhibits 1 through 7.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received, together 
 
            with the appearance and demeanor of the witnesses, the 
 
            following findings of fact are made.
 
            
 
                 David G. Lockwood began employment with Ruan Transport 
 
            Company in approximately July of 1985.  His job was to wash 
 
            and clean semi-tractor trailers.  On a date believed to be 
 
            September 18, 1985, he was assigned to assist in cleaning 
 
            the inside of a tank trailer which had been used for hauling 
 
            anhydrous ammonia.  After entering the trailer, he bumped 
 
            his head on a part of the trailer which extended down from 
 
            the inside.  The injury caused some bleeding, but was not 
 
            perceived at the time as being particularly serious.  
 
            Claimant described the location of the bump on his head as 
 
            on the left side of the head above the ear at what was 
 
            demonstrated to be approximately the point where the side of 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            the head and the top of the head meet.
 
            
 
                 Approximately two weeks later, on October 3, 1985, 
 
            claimant was using acid to clean cement from a trailer.  
 
            While doing so, some of the acid fell into his eyes.  After 
 
            rinsing his eyes for approximately 20 minutes and driving to 
 
            the airport, he still had symptoms.  Upon receiving 
 
            permission from the terminal manager, he sought treatment at 
 
            the St. Joseph Mercy Hospital emergency room (exhibit B, 
 
            page 1; exhibit 6, page 7).  The emergency room personnel 
 
            diagnosed claimant as having a corneal acid burn, but found 
 
            no residual acid.  They directed claimant to go to the North 
 
            Iowa Eye Clinic the following morning.
 
            
 
                 While at the clinic the following morning, claimant was 
 
            seen by ophthalmologist Bradley L. Isaak, M.D., who 
 
            diagnosed claimant as having a retinal detachment in his 
 
            left eye.  Claimant was referred to the Mayo Clinic where 
 
            ophthalmologist Helmut Buettner, M.D., performed surgery to 
 
            repair the detached retina.  Claimant has residual vision 
 
            defects as a result of the detached retina and surgery.
 
            
 
                 The only evidence of causation from the physicians is 
 
            that Dr. Isaak declines to relate the retinal detachment to 
 
            the acid exposure (exhibits 3 and 4).  In his most recent 
 
            report dated August 31, 1988, Dr. Isaak states that he 
 
            cannot comment as to the etiology of the detachment, but 
 
            states that blunt trauma is usually the cause in a young 
 
            patient.  He goes on to state that it would be difficult to 
 
            prove that any one particular incident was responsible 
 
            (exhibit 5).  It is also noted in exhibits 3 and 5 that 
 
            claimant's visual acuity when he was initially seen by Dr. 
 
            Isaak was 20/20 in the right eye and 20/60 in the left eye.  
 
            When testifying at hearing, claimant did not mention any 
 
            disruption of his vision prior to the time that the retinal 
 
            detachment was identified.  In fact, he denied that he had 
 
            any prior vision problems.
 
            
 
                 Dr. Buettner, in his report dated September 23, 1988, 
 
            states:
 
            
 
     
 
            
 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            The history I obtained when I saw Mr. Lockwood on 
 
            October 7, 1985 with his retinal detachment was 
 
            that he had been hit by a cue ball in the left eye 
 
            in 1976 which resulted in a black eye.  The injury 
 
            you mentioned in your letter hitting the head 
 
            while working inside an anhydrous ammonia tank was 
 
            not mentioned at that time.  The type of retinal 
 
            holes resulting in the retinal detachment is more 
 
            typical for an injury that strikes the eye 
 
            directly rather than a blow to the head that does 
 
            not strike the eye directly.
 
            
 
                 The charges incurred by claimant at the St. Joseph 
 
            Mercy Hospital emergency room on October 3, 1985 total 
 
            $100.84.  The charges for the October 4, 1985 visit at the 
 
            North Iowa Eye Clinic are $42.00 (exhibit B, page 4).
 
            
 
                                conclusions of law
 
            
 
                 There is no dispute with regard to the fact that 
 
            claimant bumped his head as described on or about September 
 
            18, 1985 or with regard to the fact that he splashed acid in 
 
            his eyes on October 3, 1985.  The dispute concerns whether 
 
            or not either of those incidents caused his retinal 
 
            detachment.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that either or both injuries 
 
            are 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 
 
            Hosp., 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. Cent. Tel. Co., 261 
 
            Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 None of the physicians have elected to identify any 
 
            particular event or incident as the cause of claimant's 
 
            retinal detachment.  The record of this case contains no 
 
            sequence of events wherein claimant sustained a blow to his 
 
            eye or head and then immediately experienced a disruption of 
 
            the vision of his left eye as would be expected to occur 
 
            with a retinal detachment.  The disrupted vision was 
 
            apparent in the eye examination conducted by Dr. Isaak where 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            the visual acuity of the left eye was shown to be 20/60 
 
            while the right was 20/20.  Agency expertise and common 
 
            knowledge is relied upon to recognize the fact that 
 
            individuals sometimes suffer a retinal detachment without 
 
            there being any known or identifiable trauma to which the 
 
            detachment can be attributed.  Iowa Code section 17A.14(5).  
 
            This is found and determined to be one of those cases where 
 
            the precipitating trauma, if the detachment was caused by 
 
            trauma, cannot be identified.  Dr. Isaak adamantly states 
 
            that the acid exposure did not cause the detachment.  Dr. 
 
            Buettner indicates that it is unlikely that a blow to the 
 
            side of the head would cause a detachment.  It is therefore 
 
            determined that David Lockwood has failed to prove, by a 
 
            preponderance of the evidence, that his retinal detachment 
 
            was proximately caused by his employment with Ruan 
 
            Transport.
 
            
 
                 It is recognized that the petition in this case alleged 
 
            injury on September 18, 1985 from a blow to the head while 
 
            working inside an anhydrous tank.  The record also fully 
 
            covers the acid burn incident.  Both injuries were tried by 
 
            consent of the parties, without objection.  Though there is 
 
            some variance, it is appropriate to rule upon both injuries, 
 
            despite the state of the pleadings.  Iowa Rule of Civil 
 
            Procedure 106.  An application for arbitration is not a 
 
            formal pleading and is not to be judged by the technical 
 
            rules of pleading, nor is the same conformity of proof to 
 
            allegation necessary as in ordinary actions.  Yeager v. 
 
            Firestone Tire & Rubber Co., 253 Iowa 369, 373, 112 N.W.2d 
 
            299 (1961).  No prejudice exists since the claim issues and 
 
            defenses are the same for both injuries.  McCarville v. 
 
            Ream, 247 Iowa 1, 72 N.W.2d 476 (1955).
 
            
 
                 David Lockwood has proved, by a preponderance of the 
 
            evidence, that he did splash acid into his eyes on October 
 
            3, 1985.  He is entitled to recover the expenses of 
 
            treatment associated with that incident, namely, $100.84 
 
            from St. Joseph Mercy Hospital and $42.00 from the first 
 
            visit with Dr. Isaak, the visit that was directed by the 
 
            emergency room personnel as a result of the acid exposure.  
 
            He is not entitled to recover any of the other medical 
 
            expenses which he submitted since they were incurred for 
 
            treatment of the retinal detachment, a condition which he 
 
            has failed to prove resulted from his employment.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that defendants pay the 
 
            following medical expenses:
 
            
 
                 St. Joseph Mercy Hospital               $ 100.84
 
                 North Iowa Eye Clinic                      42.00
 
                 Total                                   $ 142.84
 
            
 
                 IT IS FURTHER ORDERED that defendants pay the costs of 
 
            this action pursuant to rule 343 IAC 4.33.
 
            
 
                 IT IS FURTHER ORDERED that defendants file claim 
 
            activity reports as requested by this agency pursuant to 
 
            rule 343 IAC 3.1.
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            
 
                 Signed and filed this ______ day of ____________, 1991.
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Mark R. Schoeller
 
            Attorney at Law
 
            P.O. Box 234
 
            Clear Lake, Iowa  50428
 
            
 
            Mr. Cecil L. Goettsch
 
            Attorney at Law
 
            1100 Des Moines Building
 
            Des Moines, Iowa  50309
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1402.30
 
                           Filed February 12, 1991
 
                           MICHAEL G. TRIER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            DAVID G. LOCKWOOD,  :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 810695
 
            RUAN TRANSPORT,     :
 
                      :      A R B I T R A T I O N
 
                 Employer, :
 
                      :         D E C I S I O N
 
            and       :
 
                      :
 
            CARRIERS INSURANCE COMPANY,   :
 
            by IOWA INSURANCE GUARANTY    :
 
            ASSOCIATION,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ____________________________________________________________
 
            
 
            5-1402.30
 
            Claimant failed to prove that his retinal detachment 
 
            resulted from his employment.  He had no expert medical 
 
            opinion to support his claim and no sequence of events 
 
            supportive of his claim.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY EVELYN DONLEY,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  810832
 
            LUTHERAN NURSING HOME,        :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This is a proceeding in arbitration brought by Mary 
 
            Evelyn Donley, claimant, against Lutheran Nursing Home, 
 
            employer and Employers Mutual Companies, insurance carrier, 
 
            defendants for benefits as the result of an injury which 
 
            occurred on November 18, 1985.  A hearing was held at Cedar 
 
            Rapids, Iowa, on May 24, 1989, and the case was fully 
 
            submitted at the close of the hearing.  Claimant was 
 
            represented by Thomas J. Currie.  Defendants were 
 
            represented by Matthew G. Novak.  The record consists of the 
 
            testimony of Mary Evelyn Donley, claimant; Sandra K. 
 
            Hoekstra, vocational rehabilitation counselor; Sandra K. 
 
            Ary, a coemployee; Diane H. Shellhart, employer's 
 
            administrative assistant; joint exhibits A through K; 
 
            claimant's exhibits 1 through 11; and defendants' exhibits 
 
            R1 through R5.  At the time of hearing, claimant presented 
 
            claimant's written contentions of disputed issues, 
 
            claimant's disputed medical expenses; claimant's objections 
 
            to defendants' exhibits and claimant's request for taxation 
 
            of costs.  Defendants presented defendants' description of 
 
            issues and disputes, defendants' list of exhibits, 
 
            defendants' objections to claimant's exhibits, defendants' 
 
            requested taxation of costs and a pretrial brief.  The 
 
            deputy ordered a transcript of the hearing.  Both attorneys 
 
            submitted excellent posthearing briefs.
 
            
 
                                   stipulations
 
            
 
                 The parties stipulated to employer-employee 
 
            relationship; that claimant sustained an injury arising out 
 
            of and in the course of employment with employer on November 
 
            18, 1985; that the injury was the cause of both temporary 
 
            and permanent disability; that claimant was entitled to and 
 
            was paid temporary disability benefits from November 20, 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            1985 through November 24, 1985 and again from July 2, 1986 
 
            through September 22, 1987; that temporary disability 
 
            benefits are not a disputed issue in this case at this time; 
 
            that the type of permanent disability is industrial 
 
            disability; that the commencement date for permanent 
 
            disability benefits is September 23, 1987; that the rate of 
 
            compensation is $122.54 per week; that in the event of an 
 
            award of permanent disability benefits that defendants are 
 
            entitled to a credit for 50 weeks of permanent partial 
 
            disability benefits paid to claimant prior to hearing.
 
            
 
                 The issue of whether claimant is an odd-lot employee, 
 
            as shown on the hearing assignment order, was withdrawn by 
 
            claimant at the commencement of the hearing (transcript 
 
            pages 12 & 38).  
 
            
 
                                      issues
 
            
 
                 The parties submitted the following issues for 
 
            determination at the time of the hearing:
 
            
 
                 Whether claimant is entitled to permanent disability 
 
            benefits, and if so, the extent of benefits to which she is 
 
            entitled. 
 
            
 
                 Whether claimant is entitled to swimming expenses and 
 
            swimming mileage expenses as a medical expense under Iowa 
 
            Code section 85.27.  
 
            
 
                 Whether claimant is entitled to an independent medical 
 
            examination from John R. Walker, M.D., and if so, whether 
 
            the amount of that expense is reasonable.
 
            
 
                                 findings of fact
 
            
 
                   entitlement to permanent disability benefits
 
            
 
                 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.
 
            
 
                 Claimant started to work for employer on April 14, 
 
            1971, when she was approximately 30 years old (tr. p. 92; 
 
            claimant's exhibit 7, p. 4).  She worked for employer most 
 
            of her adult life for 15 years until June 25, 1986, when she 
 
            was approximately 45 years old.  She began as a nurse's aide 
 
            and later became a certified nurse's aide.  The job involved 
 
            the personal care of residents of the care center which 
 
            included lifting the patients.  She worked a 40-hour week 
 
            and earned approximately $4 per hour (tr. pp. 92-95).  
 
            
 
                 Claimant was described by one physician as being a very 
 
            large woman, heavily muscled and perhaps slightly overweight 
 
            standing five feet seven inches tall and weighing 183 pounds 
 
            (joint ex. H, p. 5).  
 
            
 
                 Kenneth N. Anderson, M.D., was her personal physician 
 
            for over 30 years (tr. p. 30; jt. ex. A).  Claimant 
 
            admitted, and Dr. Anderson's records disclose, that claimant 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            had occasional back complaints over the years if she did too 
 
            much lifting which was usually treated by a heating pad and 
 
            rest (tr. pp. 130-134).  Dr. Anderson's records show that 
 
            claimant had painful lower back and pain down both legs on 
 
            March 7, 1973 (jt. ex. A, p. 5); pain in the lower back and 
 
            hips on May 20, 1984 (jt. ex. A, p. 12); and pain across the 
 
            back on April 13, 1985 (jt. ex. A, p. 58).
 
            
 
                 Claimant pulled muscles in her right groin, right 
 
            shoulder and back on November 18, 1985, while lifting a 
 
            heavy patient reportedly weighing over 360 pounds, with a 
 
            coemployee.  Claimant was treated conservatively by Dr. 
 
            Anderson at that time.  A CT scan of the lumbar spine done 
 
            on November 22, 1985, showed no evidence of disc protrusion, 
 
            but did disclose some mild facette arthritis.  Dr. Anderson 
 
            took claimant off work from November 19, 1985, through 
 
            November 24, 1985 (jt. ex. A, pp. 60-65).  She also saw 
 
            another personal physician, Olaf E. Craft, D.O., for one 
 
            osteopathic treatment on November 20, 1985, for an acute low 
 
            back problem (jt. ex. A, p. 65; jt. ex. C).  
 
            
 
                 Claimant then worked from November 25, 1985, until 
 
            April 25, 1986, a period of five months, and then returned 
 
            to Dr. Anderson stating that she had never gotten over the 
 
            pain from the injury.  Dr. Anderson scheduled an appointment 
 
            with James R. LaMorgese, M.D., a neurosurgeon (jt. ex. A, 
 
            pp. 65 & 66).  Dr. LaMorgese saw claimant on May 1, 1986,  
 
            and diagnosed chronic low back strain without evidence of 
 
            radiculopathy (jt. ex. E, pp. 1 & 2).  He ordered a repeat 
 
            CT scan and an EMG on May 20, 1986.  The EMG study was 
 
            within normal limits.  The CT scan was essentially unchanged 
 
            from the November 22, 1985, study (jt. ex. E, p. 7).  The CT 
 
            scan did reveal some mild arthritic changes in the facette 
 
            joints of the back.  He referred claimant to John R. Robb, 
 
            M.D., an orthopedic surgeon, after his second steroid 
 
            injection failed to relieve her pain (jt. ex. E, pp. 7-10).
 
            
 
                 Dr. Robb saw claimant on July 2, 1986, and he took her 
 
            off work until September 22, 1987.  His initial diagnosis 
 
            was lumbosacral strain, moderately severe (jt. ex. D, pp. 5, 
 
            6, 12, 13 & 15).  When he released claimant to return to 
 
            work in September of 1987, he did not release her to her 
 
            regular job, but to regular employment with the restrictions 
 
            of not lifting over 40 pounds on an occasional basis and 25 
 
            pounds on a repetitive basis which he classified as light 
 
            work (jt. ex. D, p. 26).  He awarded a 10 percent permanent 
 
            impairment rating to the body as a whole on September 23, 
 
            1987 (jt. ex. D, p. 27).  On December 17, 1987, he changed 
 
            the weight restrictions to 35 pounds of occasional lifting 
 
            and 20 pounds on a repetitive basis.  He recommended that 
 
            she alternate standing and sitting for a period of about an 
 
            hour at a time (jt. ex. D, p. 28).
 
            
 
                 Dr. Robb ordered a functional capacity evaluation on 
 
            January 23 and January 24, 1989 (jt. ex. D, pp. 40-44).  On 
 
            February 9, 1989, Dr. Robb said her maximum capacity 
 
            represented approximately two-thirds of the performance 
 
            capability of a person her age, build and sex.  He 
 
            recommended that claimant contact social services and seek 
 
            training in a less stressful occupation.  He imposed a 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            weight restriction of 15 pounds and stated level lifting and 
 
            pushing and pulling should not exceed 25 pounds.  Sitting at 
 
            one time should be limited to half an hour and standing 
 
            should not exceed one hour continuously (jt. ex. D, p. 38).  
 
            
 
                 Dr. Robb gave a deposition on April 26, 1989, after he 
 
            saw claimant on April 24, 1989.  He granted that claimant 
 
            had not received any surgery and had not been hospitalized 
 
            (jt. ex. K, p. 3).  He said his neurological examination was 
 
            normal and there was no evidence of an injury to a disc (jt. 
 
            ex. K, p. 6).  Dr. Robb testified that approximately 
 
            one-half of his permanent impairment would be attributable 
 
            to the injury and the other 50 percent would be due to 
 
            degenerative changes that developed over a period of time 
 
            (jt. ex. K, p. 17).  He repeated that 50 percent of her 
 
            impairment was due to existing changes in her lumbar spine 
 
            that existed prior to the injury date (jt. ex. K, p. 22).  
 
            He also stated that the work injury aggravated and triggered 
 
            a condition which was otherwise asymptomatic (jt. ex. K, p. 
 
            26).  He added that claimant did not have any restrictions 
 
            of any kind prior to the work injury.  Moreover, he further 
 
            stated that claimant was foreclosed from returning to heavy 
 
            lifting of patients such as she had performed prior to this 
 
            injury (jt. ex. K, p. 32).  He further adhered to the 
 
            restrictions he imposed on February 9, 1989, of not lifting 
 
            more than 15 pounds or level lifting or pushing and pulling 
 
            more than 25 pounds, sitting more than one-half hour and 
 
            standing more than one hour (jt. ex. K, p. 32; jt. ex. D, p. 
 
            38).  He further testified that if claimant had flare-ups in 
 
            the future, that it would not be due to the injury of 
 
            November 18, 1985, but rather it would be caused by the 
 
            degenerative changes in her lumbar spine (jt. ex. K, p. 35).
 
            
 
                 John R. Walker, M.D., an orthopedic neurosurgeon, 
 
            evaluated claimant on February 8, 1988.  He determined that 
 
            claimant had sustained a 35 percent impairment to the body 
 
            as a whole which he considered to be permanent (jt. ex. H, 
 
            pp. 1-7).
 
            
 
                 Objectively he found tenderness and some limited range 
 
            of motion.  He also found an aggravation of claimant's 
 
            preexisting condition in her lumbosacral spine.  He noted 
 
            that the preexisting condition was not causing any 
 
            disability prior to this injury.
 
            
 
                 Dr. Walker stated in his report:
 
            
 
                    At this time she is certainly unable to do 
 
                 heavy lifting and I don't think she is qualified 
 
                 to do any work at all.  If I were the examining 
 
                 physician for a company I would certainly not hire 
 
                 her under any conditions in the shape she is in.  
 
                 She is limping too much.  She has a marked limp on 
 
                 the right lower extremity and gets around very 
 
                 poorly and certainly one would not hire her at 
 
                 all.
 
            
 
            joint exhibit H, page 7
 
            
 
                 Dr. Anderson gave a final evaluation for the Division 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            of Vocational Rehabilitation Services on November 2, 1988, 
 
            in which he stated (1) that claimant's significant medical 
 
            history is that in the past she has had low back pain; (2) 
 
            that her diagnosis is good health except for occasional low 
 
            back pain; (3) the functional limitation of her activities 
 
            is that she should avoid heavy lifting; and (4) his 
 
            recommendation was that she be active and can do anything 
 
            except heavy lifting (cl. ex. 10, pp. 19 & 20).
 
            
 
                 Therefore, in addition to claimant's permanent 
 
            impairment ratings, she is also foreclosed from the 
 
            employment that she has pursued for most of her adult life 
 
            for 15 years as a nurse's aide.  Michael v. Harrison County, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            218, 220 (Appeal Decision January 30, 1979); Rohrberg v. 
 
            Griffin Pipe Products Co., I Iowa Industrial Commissioner 
 
            Report 282 (1984).
 
            
 
                 Diane Shellhart, administrative assistant and acting 
 
            chief executive officer for employer, testified that in her 
 
            opinion claimant could perform the jobs of medical aide, 
 
            dietary aide, and housekeeping aide (defendants' ex. R1 
 
            through R3; tr. pp. 152-154).  However, Dr. Robb, also 
 
            indicated that claimant should avoid bending, stooping, 
 
            crouching, and stooping which these jobs entail.  Shellhart 
 
            did testify that claimant enjoyed a good attendance record, 
 
            was punctual, loyal, motivated, performed well on her job, 
 
            got along with coworkers and was dependable (tr. p. 159).  
 
            She further verified that claimant was terminated one year 
 
            after she was unable to work due to the provisions of the 
 
            collective bargaining agreement (def. ex. R4) and that 
 
            claimant was not terminated because of this injury or the 
 
            fact that she had a workers' compensation claim (tr. pp. 160 
 
            & 161).
 
            
 
                 Claimant, born July 4, 1941, was 44 years old at the 
 
            time of the injury and 47 years old at the time of the 
 
            hearing (tr. p. 89).  The fact that claimant was disabled in 
 
            the peak earning years of her employment career makes her 
 
            disability worse than it would be for a younger or older 
 
            employee.  Becke v. Turner-Busch, Inc., Thirty-fourth 
 
            Biennial Report of the Industrial Commissioner 34 (Appeal 
 
            Decision  1979); Walton v. B & H Tank Corp., II Iowa 
 
            Industrial Commissioner Report 426 (1981); McCoy v. 
 
            Donaldson Company, Inc., IAWC Decisions of the Iowa 
 
            Industrial Commissioner 400 (1989).
 
            
 
                 Claimant's only prior employment was that of an 
 
            assembler on a production line.  She could perform assembly 
 
            work if it were light, lifting objects less than 15 pounds, 
 
            and if she were able to vary her working position from 
 
            standing to sitting.  Placing such limitations on assembly 
 
            line work certainly eliminates the number of jobs that 
 
            claimant otherwise could have performed which in turn 
 
            increases her industrial disability.
 
            
 
                 Claimant has a high school education (tr. p. 90).  Job 
 
            Service referred claimant to vocational rehabilitation 
 
            services in October 1988.  She attended the Kirkwood Skill 
 
            Center for clerical training on April 24, 1989.  Sandra K. 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            Hoekstra, a vocational rehabilitation consultant, testified 
 
            that in her opinion claimant cannot perform a medical aide 
 
            job, dietary aide job or housekeeping aide job because they 
 
            were not consistent with Dr. Robb's limitations on walking, 
 
            standing, kneeling, crouching, stooping, and reaching and 
 
            they required claimant to be on her feet all day long (tr. 
 
            pp. 53-55).  She further testified that claimant now has 
 
            clerical skills and could earn entry level wages of between 
 
            minimum wage of $3.35 and $4.50 per hour (tr. pp. 52 & 56).  
 
            She testified that claimant did well at the skill center.  
 
            Claimant was dependable, punctual, motivated, loyal, 
 
            followed instructions and displayed an excellent attitude.  
 
            She stated that claimant could obtain several clerical types 
 
            of jobs such as bank teller, retail clerk, general clerical 
 
            worker and other semi-skilled jobs (tr. pp. 64-69).  
 
            
 
                 Hoekstra did not believe that claimant was capable of 
 
            working eight hours a day, but she admitted that Dr. Robb 
 
            did not restrict claimant to less than eight hours a day 
 
            (tr. pp. 59 & 70).  She stated that claimant's employment 
 
            weaknesses were the back injury, and that she tested low on 
 
            average general aptitude, numerical aptitude, spatial 
 
            perception aptitude, manual dexterity aptitude, mathematics 
 
            ability and language ability (tr. p. 77).  She stated that 
 
            claimant could have entered the program two years earlier if 
 
            she had chosen to do so (tr. p. 79).  She admitted that the 
 
            functional capacity examination did not place any limit on 
 
            the number of hours that claimant was able to work (tr. pp. 
 
            79 & 80).
 
            
 
                 Thus, it appears that even though claimant has not 
 
            suffered a significant loss in possible actual earnings, 
 
            based on the testimony of this rehabilitation counselor, it 
 
            was necessary for claimant to be retrained in order to be 
 
            employed again.  Retraining is one of the considerations in 
 
            the determination of industrial disability.  Conrad v. 
 
            Marquette School, Inc., IV Iowa Industrial Commissioner 
 
            Report 74, 89 (1984).  Claimant testified that she would 
 
            have taken the training sooner, but she was not aware of the 
 
            fact that she could do it.  There is no evidence that 
 
            employer or insurance carrier assisted claimant with any 
 
            vocational rehabilitation or suggestions on how to obtain 
 
            retraining or vocational rehabilitation.
 
            
 
                 Claimant had applied for several jobs and was working 
 
            at the time of the hearing performing clerical work on a 
 
            part-time basis at $4 per hour working 20 to 25 hours per 
 
            week answering the telephone and typing.  This job permits 
 
            her to stand and sit intermittently (tr. p. 120).  Her back 
 
            still aches constantly and she has some pain in her right 
 
            leg.  She can no longer vacuum or perform yard work.  She 
 
            cannot carry her grandchildren or go camping.  She is 
 
            foreclosed from lifting.  She stated that she is never 
 
            symptom free.  She can only stand for about 45 minutes or 
 
            sit for half an hour.  Twisting hurts her back.  Bending 
 
            hurts her back.  Claimant maintained that she was not able 
 
            to work eight hours per day because it hurts her back too 
 
            much (tr. pp. 122-127).  Claimant acknowledged that she 
 
            could perform practically all of her household chores except 
 
            vacuuming (tr. pp. 123 & 138).  Claimant performed a job 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            sorting corn for about two and one-half weeks which required 
 
            standing and reaching, but it caused a great deal of trouble 
 
            to her back (tr. pp. 146 & 151).
 
            
 
                 Wherefore, based upon the foregoing considerations and 
 
            all of the factors used to determine industrial disability, 
 
            Christensen v. Hagen, Inc., vol. I, no. 3, State of Iowa 
 
            Industrial Commissioner Decisions 529 (Appeal Decision March 
 
            26, 1985); Peterson v. Truck Haven Cafe, Inc., vol. 1, no. 3 
 
            State of Iowa Industrial Commissioner Decisions 654, 658 
 
            (Appeal Decision February 28, 1985); and employing agency 
 
            expertise [Iowa Administrative Procedure Act 17A.14(5)]; it 
 
            is determined that claimant has sustained a 20 percent 
 
            industrial disability to the body as a whole and is entitled 
 
            to 100 weeks of permanent partial disability benefits.
 
            
 
                   entitlement to swimming expenses and mileage
 
            
 
                 It is determined that claimant is entitled to $377 for 
 
            a membership to the YMCA and swimming lessons and 9,724 
 
            miles of swimming mileage at the rate of 21 cents per mile 
 
            in the total amount of $2,042.04, as itemized in claimant's 
 
            exhibit 5, for participating in swimming from June 3, 1987 
 
            through August 31, 1988, as prescribed by Dr. Robb.  
 
            
 
                 Claimant testified that Dr. Robb prescribed home 
 
            exercises and swimming exercise at the YMCA in Cedar Rapids, 
 
            Iowa.  Initially he prescribed it three times a week and 
 
            later increased it to five times a week.  In order to swim 
 
            she had to learn to swim.  In order to learn she had to take 
 
            swimming lessons.  After she learned to swim she swam laps 
 
            for approximately one-half hour to forty-five minutes as Dr. 
 
            Robb had prescribed.  She was forced to quit because the 
 
            workers' compensation carrier refused to pay for it (tr. pp. 
 
            111-113).  
 
            
 
                 There is a prescription slip signed by Dr. Robb on June 
 
            3, 1987, for Mary Donley which states, "This patient 
 
            requires a program of swimming exercise 3 x a week for 3 
 
            months to strengthen her back." jt. ex. D, p. 24.  On July 
 
            31, 1987, Dr. Robb signed another prescription slip which 
 
            stated, "Please extend swimming for 3 months.  This patient 
 
            has improved in response to this program.  It is helpful." 
 
            jt. ex. D, pp. 24 & 25.  Dr. Robb stated in a letter on 
 
            September 15, 1987, that he had prescribed the swimming 
 
            program (jt. ex. D, p. 26).  On October 20, 1987, he 
 
            commented that she continue her swimming three times a week 
 
            which seems to feel good and she does well with this (jt. 
 
            ex. D, p. 27).  On November 3, 1987, Dr. Robb stated that 
 
            she is to continue her program of swimming five times a week 
 
            (jt. ex. D, p. 27).  On December 17, 1987, he stated she is 
 
            swimming about five times a week (jt. ex. D, p. 27).  On 
 
            September 14, 1987, he signed another prescription which 
 
            stated, "This patient is to continue swimming for 6 months."  
 
            jt. ex. D, p. 29.  On October 20, 1987, he signed another 
 
            prescription for swimming which said, "Recommend 
 
            continuation of swimming and now 5 times a week." jt. ex. D, 
 
            p. 29.  On June 16, 1988, Dr. Robb signed another pre
 
            scription for swimming which stated, "This patient will 
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
            require a continuation of swimming at YMCA for 6 months." 
 
            jt. ex. D, p. 29.  On September 29, 1988, Dr. Robb confirmed 
 
            that swimming during the summer was quite helpful and 
 
            maintained good muscle tone and that she was improving (jt. 
 
            ex. D, p. 35).  On April 24, 1989, Dr. Robb made a note that 
 
            claimant was to continue with the exercise program and 
 
            swimming when available (jt. ex. D, p. 39).  
 
            
 
                 In his deposition Dr. Robb stated that the important 
 
            objective of her therapy program was an exercise program to 
 
            restore the function of her back (jt. ex. K, p. 4).  He 
 
            further stated they discussed swimming early on and it was 
 
            his personal experience that one of the best methods of 
 
            restoring muscle power and strength was swimming.  He 
 
            stated, "And she participated in this most compliantly and 
 
            over a substantial period of time." jt. ex. K, p. 12.  He 
 
            confirmed that swimming was a part of the work hardening 
 
            program (jt. ex. K, pp. 12 & 13).
 
            
 
                 This dialogue transpired between Dr. Robb and 
 
            claimant's counsel:
 
            
 
                 Q.  Doctor, at some point in your treatment of the 
 
                 patient you prescribed a regimen of swimming 
 
                 therapy, isn't that true?
 
            
 
                 A.  I did.
 
            
 
                 Q.  And that was because you felt that the 
 
                 swimming would help improve her back and her 
 
                 condition, right?
 
            
 
                 A.  Correct.
 
            
 
                 Q.  Would you say then, Doctor, that the 
 
                 prescription of swimming was a reasonable 
 
                 treatment to prescribe for this kind of injury?
 
            
 
                 A.  Yes.
 
            
 
                 Q.  And I think you reported that she continued 
 
                 that swimming therapy for quite some time per your 
 
                 instructions, correct?
 
            
 
                 A.  Right.
 
            
 
            joint exhibit K, page 33
 
            
 
                 Iowa Code section 85.27 states that the employer shall 
 
            furnish reasonable medical treatment and reasonably 
 
            necessary transportation expenses incurred for such 
 
            services.  The overwhelming uncontroverted evidence is that 
 
            Dr. Robb prescribed the swimming lessons and swimming 
 
            activity and that he considered it reasonable medical 
 
            treatment.  Dr. Robb's testimony is not controverted by any 
 
            other evidence.  The fact that Dr. Robb could have 
 
            prescribed other forms of therapy, as suggested by 
 
            defendants, is immaterial.
 
            
 
                 Wherefore, it is determined that claimant is entitled 
 

 
            
 
            Page   9
 
            
 
            
 
            
 
            
 
            to $377 for membership to the YMCA and swimming lessons (cl. 
 
            ex. 5, p. 9) and 9,724 miles of swimming mileage at the rate 
 
            of 21 cents per mile in the total amount of $2,042.04.  
 
            Claimant submitted an itemized log by date for the round 
 
            trip mileage from Urbana, Iowa to the YMCA at Cedar Rapids, 
 
            Iowa, which was 44 miles per day round trip on the days she 
 
            performed swimming therapy.  Likewise, the fact that Dr. 
 
            Robb was not aware of the fact that claimant was driving 44 
 
            miles round trip to carry out his prescribed treatment is 
 
            likewise immaterial to her claim for this medical mileage 
 
            (jt. ex. K, p. 14).  He prescribed the swimming and she 
 
            performed it pursuant to his prescription.  The fact that 
 
            sitting in the car for that length of time might be 
 
            detrimental to her recovery wasn't mentioned by Dr. Robb 
 
            until the time of his deposition on April 26, 1989, long 
 
            after claimant was no longer swimming and after defendants' 
 
            counsel had had several consultations with Dr. Robb (jt. ex. 
 
            K, pp. 14 & 15).  Claimant testified that she also drove 
 
            from Urbana to Cedar Rapids to attend Kirkwood Skill Center 
 
            and the driving did not bother her back (tr. p. 147).  Dr. 
 
            Robb was aware that claimant lived in Urbana, Iowa.  The 
 
            very first statement in his very first report states, "Mary 
 
            Donley of Urbana, Iowa, was examined by me on July 2, 
 
            1986,..." jt. ex. D, p. 5.
 
            
 
                         independent medical examination
 
            
 
                 It is determined that claimant is entitled to $578 for 
 
            the medical examination of John R. Walker, M.D., as an 
 
            independent medical examination under Iowa Code section 
 
            85.39.
 
            
 
                 This code section provides that if an evaluation of 
 
            permanent disability has been made by a physician retained 
 
            by the employer, and the employee believes this evaluation 
 
            to be too low, then the employee is entitled to an 
 
            examination by a physician of the employee's own choice and 
 
            the reasonably necessary transportation expenses incurred 
 
            for the examination.
 
            
 
                 The fact that Dr. Anderson, claimant's personal 
 
            physician, referred claimant to Dr. LaMorgese who referred 
 
            claimant to Dr. Robb, does not necessarily make Dr. Robb 
 
            claimant's own choice of physician in the context of section 
 
            85.39.  Limoges v. Meier Auto Salvage, 1 Iowa Industrial 
 
            Commissioner, 161 (1981).  An employer retained physician 
 
            includes one chosen by the employee, but adopted by the 
 
            employer.  Coble v. Metromedia, Inc., Thirty-fourth Biennial 
 
            Report of the Iowa Industrial Commissioner 71 (1979).
 
            
 
                 Furthermore, it was not necessary for claimant to 
 
            obtain the prior approval of defendants or that she file an 
 
            application with the industrial commissioner's office prior 
 
            to seeing the independent examiner.  It is not necessary for 
 
            claimant to apply for reimbursement for an independent 
 
            medical examination by a physician of her own choice prior 
 
            to the examination or prior to hearing.  Pirozek v. Swift 
 
            Independent Packing, file number 803955 (1986).  The only 
 
            condition precedent is a medical examination by an employer 
 
            retained physician.  Pirozek v. Swift Independent Packing 
 

 
            
 
            Page  10
 
            
 
            
 
            
 
            
 
            and Second Injury Fund of Iowa, file number 753643 and 
 
            753642 and 724893 (Appeal Decision 1987).  In that case, 
 
            Industrial Commissioner Robert C. Landess stated that the 
 
            condition precedent of an evaluation made by an employer 
 
            retained physician was present.  The provision for 
 
            reimbursement then, comes into play when as here, 
 
            defendants' liability is established.  McSpadden v. Big Ben 
 
            Coal Co., 288 N.W.2d 181 (Iowa 1980).  
 
            
 
                 An application for an independent medical examination 
 
            under Iowa Code section 85.39 need not precede the 
 
            examination if the claimant is satisfied to wait until the 
 
            hearing to be reimbursed provided that this is designated as 
 
            a hearing issue on the hearing assignment order.  Pirozek, 
 
            file 803955 (1986).  Dr. Robb first indicated a 5 to 10 
 
            percent body as a whole permanent impairment as early as 
 
            October 14, 1986 (jt. ex. D, p. 10).  He then confirmed that 
 
            claimant was entitled to a 10 percent permanent impairment 
 
            of function on December 17, 1987 (jt. ex. D, p. 28).  Dr. 
 
            Walker's evaluation was made on February 8, 1988, which was 
 
            subsequent to Dr. Robb's evaluation. 
 
            
 
                 Dr. Robb's itemized statement for examination is in the 
 
            amount of $663.  This is broken down as $425 for an 
 
            orthopedic evaluation and $238 for an x-ray (cl. ex. 6).  
 
            However, claimant's counsel is asserting a claim for $578 as 
 
            the cost of Dr. Walker's examination in his list of 
 
            claimant's disputed medical expenses attached to the 
 
            prehearing report.  Likewise, in his brief claimant's 
 
            counsel asserts that the cost of the independent medical 
 
            examination was $578 (cl. brief page 6).  Dr. Robb testified 
 
            that he charges $200 for an examination (plus a separate 
 
            report fee) and based on that he thought that Dr. Walker's 
 
            charges were exorbitant (jt. ex. K, pp. 23 & 24).  At the 
 
            same time, Dr. Robb was forced to testify that he had never 
 
            seen Dr. Walker's report and he did not know what the 
 
            examination consisted of (jt. ex. K, p. 28).  
 
            
 
                 Claimant's counsel contends, and it is apparent from 
 
            reading Dr. Walkers' report, that his charges consist of a 
 
            review of several medical records, obtaining an extensive 
 
            history from claimant, taking x-rays of claimant and 
 
            examining claimant.  Dr. Robb indicated that he too would 
 
            charge more for examining medical documents and other 
 
            services (jt. ex. K, p. 23).  Wherefore, it is determined 
 
            that Dr. Walker's charges in the claimed amount of $578 are 
 
            reasonable for the services which he performed and claimant 
 
            is entitled to be reimbursed $578 or to have Dr. Walker paid 
 
            that amount if the bill remains unpaid.
 
            
 
                                conclusions of law
 
            
 
                 Wherefore, based on the evidence presented and the 
 
            foregoing and following principles of law, these conclusions 
 
            of law are made:
 
            
 
                 That claimant has sustained an industrial disability of 
 
            20 percent to the body as a whole.  Bodish v. Fischer, Inc., 
 
            257 Iowa 516, 133 N.W.2d 867 (1965); Lindahl v. L.O. Boggs 
 
            Co., 236 Iowa 296 18 N.W.2d 607 (1945); Rose v. John Deere 
 

 
            
 
            Page  11
 
            
 
            
 
            
 
            
 
            Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756 (1956); 
 
            Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
            812 (1962).  
 
            
 
                 That claimant is entitled to 100 weeks of permanent 
 
            partial disability benefits.  Iowa Code section 85.34(2)(u).
 
            
 
                 That claimant is entitled to $377 in medical expenses 
 
            for YMCA membership and swimming lessons and $2,042.04 in 
 
            medical mileage in the total amount of $2,419.04.  Iowa Code 
 
            section 85.27.
 
            
 
                 That claimant is entitled to recover $578 for an 
 
            independent medical examination from John R. Walker, M.D.  
 
            Iowa Code section 85.39.
 
            
 
                                      order
 
            
 
                 THEREFORE, IT IS ORDERED:
 
            
 
                 That defendants pay to claimant one hundred (100) weeks 
 
            of permanent partial disability benefits at the rate of one 
 
            hundred twenty-two and 54/100 dollars ($122.54) per week in 
 
            the total amount of twelve thousand two hundred fifty-four 
 
            dollars ($12,254) commencing on September 23, 1987, as 
 
            stipulated to by the parties.
 
            
 
                 That defendants are entitled to a credit for fifty (50) 
 
            weeks of permanent partial disability benefits paid to 
 
            claimant prior to hearing at the rate of one hundred 
 
            twenty-two and 54/100 dollars ($122.54) per week in the 
 
            total amount of six thousand one hundred twenty-seven 
 
            dollars ($6,127).
 
            
 
                 That all accrued benefits are to be paid in a lump sum.
 
            
 
                 That interest will accrue pursuant to Iowa Code section 
 
            85.30. 
 
            
 
                 That defendants pay to claimant or the provider of 
 
            medical services two thousand four hundred nineteen and 
 
            04/100 dollars ($2,419.04) in medical expenses.
 
            
 
                 That defendants pay to claimant or the provider of 
 
            medical services five hundred seventy-eight dollars ($578) 
 
            for an independent medical examination.
 
            
 
                 That the costs of this action, including the cost of 
 
            the attendance of the court reporter at the hearing and the 
 
            transcript, are charged to defendants pursuant to rule 343 
 
            IAC 4.33.
 
            
 
                 Claimant is also entitled to the following items from 
 
            claimant's requested taxation of costs attached to the 
 
            prehearing report:
 
            
 
                 1.  Report of February 8, 1988 of John R. Walker, M.D., 
 
            in the amount of $85.
 
            
 
                 2.  Report of November 25, 1986 of W. John Robb, M.D., 
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            in the amount of $42.
 
            
 
                 3.  The deposition transcript of the testimony of W. 
 
            John Robb, M.D., in the amount of $34.20, which was 
 
            introduced into evidence.
 
            
 
                 4.  The witness fee of Sandra Hoekstra in the amount of 
 
            $5.
 
            
 
                 These costs total $166.20.
 
            
 
                 Claimant is not entitled to the deposition transcripts 
 
            for Mary Donley and Sandra Hoekstra for the reason that 
 
            these fees are considered to be trial preparation expenses.  
 
            Rule 343 IAC 4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of February, 1990.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Thomas J. Currie
 
            Attorney at Law
 
            3401 Williams Blvd SW
 
            PO Box 998
 
            Cedar Rapids, Iowa  52406
 
            
 
            
 
            
 
            
 
            Mr. James Pickens
 
            Mr. Matthew G. Novak
 
            Attorneys at Law
 
            1010 American Bldg.
 
            PO Box 74170
 
            Cedar Rapids, Iowa  52407
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                                          51108.50 51402.40 51803 52206 
 
                                          51108.50 51402.60 52501 2505 
 
                                          62602 2902 3101 2502 
 
                                          Filed February 15, 1991
 
                                          Walter R. McManus, Jr.
 
            
 
                           before the iowa industrial 
 
                                   commissioner
 
            ____________________________________________________________
 
                                          :
 
            MARY EVELYN DONLEY,           :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  810832
 
            LUTHERAN NURSING HOME,        :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            EMPLOYERS MUTUAL,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            51108.50 51402.40 51803 52206
 
            Claimant awarded 20 percent industrial disability.  She was 
 
            44 years old, had a high school education, was foreclosed 
 
            from her prior employment of 15 years as a nurse's aide in a 
 
            care center as  well as any job which required lifting over 
 
            15 pounds or pushing and pulling more than 25 pounds.  She 
 
            was also restricted from sitting more than one-half hour and 
 
            standing more than one hour continuously.  This probably 
 
            foreclosed her from her only other prior employment outside 
 
            of her home which was performing assembly line work.
 
            Defendants' evaluator, who was also the treating physician, 
 
            awarded 10 percent permanent impairment, 5 percent of which 
 
            he attributed to this injury and 5 percent of which he 
 
            attributed to her preexisting back condition, but he 
 
            conceded that claimant was asymptomatic prior to this injury 
 
            and had no permanent work restrictions before this injury.  
 
            Claimant's evaluator awarded 35 percent permanent impairment 
 
            and noted she was asymptomatic prior to this injury and did 
 
            not have any permanent job restrictions prior to this 
 
            injury.  Claimant's personal physician did not award a 
 
            percentage rating, but said she could no longer perform 
 
            heavy lifting.
 
            Defendants offered no rehabilitation.  Claimant found her 
 
            own way into rehabilitation through Job Service eventually 
 
            and was completing a clerical course at the community 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            college at the time of hearing and had found a part-time job 
 
            doing clerical work.
 
            Claimant did not sustain much, if any, actual wage loss 
 
            because her employment as a nurse's aide paid so poorly in 
 
            the first place, $4 per hour.  She was, however, forced into 
 
            the competitive job market with a back injury and resulting 
 
            restrictions with a history as a workers' compensation 
 
            claimant with few, if any, transferrable skills.  Her 
 
            diagnosis was lumbosacral strain, she was not hospitalized, 
 
            had no surgery and she took quite a while before she either 
 
            found employment or entered retraining which impugned her 
 
            motivation.  Her husband was retired on disability.
 
            
 
            51108.50 51402.60 52501 2505 62602 52700 2902 3101
 
            Claimant awarded $377 for swimming lessons and a membership 
 
            to the YMCA and $2,042.04 in medical mileage to go swimming 
 
            at first three time a week and later five times a week.  The 
 
            overwhelming, uncontroverted evidence is that the treating 
 
            physician, which defendants had adopted as their own 
 
            treating physician, wrote several prescription forms for 
 
            swimming and instructed claimant to swim in several of his 
 
            office notes and medical reports to all parties.  Defendants 
 
            produced no evidence to controvert the numerous 
 
            prescriptions, instructions and authorizations to swim.
 
            
 
            2502
 
            When claimant's personal physician referred claimant to a 
 
            neurosurgeon who referred claimant to an orthopedic surgeon 
 
            who became the treating physician accepted by defendants, 
 
            this did make the treating physician claimant's physician 
 
            for purposes of a section 85.39 examination because of the 
 
            referral process.  Cases cited.
 
            Claimant was not required to apply for section 85.39 
 
            examination in advance of the examination or prior to 
 
            hearing.  A prior examination by defendants' physician, 
 
            which claimant considered too low, triggers claimant's 
 
            entitlement to a section 85.39 examination at the moment the 
 
            deputy finds liability for an injury.  Cases cited.  In this 
 
            case, defendants admitted liability at the time of hearing, 
 
            however.
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL R. PETERSEN, JR.,
 
         
 
              Claimant,                             File No. 810986
 
         
 
         vs.                                     A R B I T R A T I O N
 
         
 
         FARMSTEAD FOODS,                           D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                     FEB 22 1989
 
         SENTRY INSURANCE COMPANY,
 
                                              IOWA INDUSTRIAL 
 
                                              COMMISSIONER
 
         
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Paul Petersen, against Farmstead Foods, employer, and Sentry 
 
         Insurance Company, insurance carrier, to recover benefits as a 
 
         result of an injury he sustained on September 25, 1985.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner in Cedar Rapids, Iowa, on December 28, 
 
         1988.  The record in this proceeding consists of the testimony of 
 
         claimant, Paul Petersen, and joint exhibits 1 through 10.
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that there was an employer-employee relationship, that the injury 
 
         arose out of and in the course of employment, that the injury 
 
         occurred on September 25, 1985, and that there is a causal 
 
         connection between the injury and the temporary disability of 
 
         claimant.  The extent of entitlement to weekly compensation for 
 
         temporary total disability or healing period, if defendants are 
 
         liable for the injury, is stipulated to be from November 21, 1985 
 
         to February 10, 1986, which payments have been paid at the weekly 
 
         rate of $194.72.  If permanent partial disability benefits are 
 
         awarded, the commencement date would be February 11, 1986.
 
         
 
                                  ISSUE
 
         
 
              The sole issue to be resolved is whether claimant is 
 
         entitled to permanent partial disability benefits.
 
         
 
         REVIEW OF THE EVIDENCE
 
         
 
              Claimant began employment with Farmstead Foods in June of 
 
                                                
 
                                                         
 
         1985.  Claimant testified that his first job at defendant 
 
         employer's involved compressing slabs of bacon, taking the slabs 
 
         off the hooks and packing them in boxes.  Claimant indicated that 
 
         on the second week of this job, he got tendonitis.  Claimant said 
 
         he saw the company nurse who suggested he apply cold packs and 
 
         took two days off work.  Claimant testified that he then went 
 
         back to work with no restrictions but was still having a 
 
         tendonitis problem so was given a wrist brace for his left hand 
 
         and wrist.
 
         
 
              Claimant testified that around the end of August or 
 
         September 1985, he was moved to the night sanitation job which 
 
         involved the use of a high pressure water hose to clean the meat 
 
         machines and the floor.  Claimant indicated that he would have to 
 
         wrap the hose around the upper part of his arm, over the wrist 
 
         and up the middle of his hand in order to hold it so as to 
 
         prevent it from getting out of control and hitting him in the 
 
         mouth.  He emphasized that there was enough vibration to move him 
 
         around while holding the hose.  He did this approximately six 
 
         hours out of an eight hour day.  Claimant said that his hand and 
 
         wrist were "okay" in this job, which lasted two weeks, and then 
 
         he was moved to the dry salt night sanitation job, which involved 
 
         cleaning the floors and climbing underneath the machinery.  
 
         Claimant indicated that he would hold the hose the same way but 
 
         sometimes had to back into the machinery.  Claimant stated that 
 
         he then started having trouble with the trigger finger involving 
 
         his left hand whereby his middle finger would lock, be forced 
 
         open and become stiff.  He indicated that if he would be pulling 
 
         a vat, that his left wrist would sometimes pop.  Claimant 
 
         described "trigger finger" as the two middle fingers on one's 
 
         hand.  Claimant described the problems he was having at this time 
 
         were with his fingers going to sleep and locking in place.
 
         
 
              Claimant testified that he received a layoff notice from the 
 
         employer the last week of January 1986 and has not worked for 
 
         defendant employer since.
 
         
 
              Claimant indicated that he looked for a job where he did not 
 
         have to use his left hand.  Claimant stated he found employment 
 
         with his brother-in-law doing concrete, roofing and basement 
 
         repair, but had difficulty holding onto the ladder with his hand 
 
         and couldn't hold the wheelbarrow handle or the bucket handle.  
 
         He worked at this job to April 1987.  Claimant indicated that he 
 
         then went to Kirkwood School from April 1987 to June 1987 and 
 
         after 120 hours, received a certified nurse attendant 
 
         certificate.  Claimant testified he was still having the same 
 
         medical problems so he went to John R. Walker, M.D., in December 
 
         1986 and indicated that Dr. Walker suggested that he have surgery 
 
         again on the hand and gave claimant a disability rating.
 
         
 
              Claimant stated with disgust that on June 10, 1987, he was 
 
         prepared by Dr. Hales for surgery at Dr. Hales' office and Dr. 
 
         Hales came into his room and said that the insurance company 
 
         called him and told Dr. Hales not to do the surgery.  Claimant 
 
         indicated he then went home and never saw Dr. Hales again.
 
                                                
 
                                                         
 
         
 
              On November  21, 1985, W. Hales, M.D.,in his notes, stated 
 
         the following:  "I think he does have a work-related carpal 
 
         tunnel syndrome, not very severe but symptomatic enough that in 
 
         order for him to work, he may require a carpal tunnel release."  
 
         (Ex. 1)  On Dr. Hales' same notes, dated December 2, 1985, he 
 
         states:
 
         
 
              His EMGs are normal and based on this I have told him that he 
 
              has a moderately severe carpal tunnel syndrome and that if he 
 
              were in a different work setting where he does not use his 
 
              wrist and hand so much that he could possibly could [sic] get 
 
              by for sometime, even years, before having anything done.  
 
              But based on his work place and the need for constant wrist 
 
              and hand motion, if he is planning to continue to work there, 
 
              he will probably require the surgery.  Based on that, we are 
 
              planning to go ahead with carpal tunnel release under local 
 
              as an outpatient at Mercy Hospital.  We will not do the 
 
              trigger fingers as they seem to have been cured at present 
 
              just from the injection.
 
         
 
         (Ex. 1)
 
         
 
              Dr. Hales performed surgery on claimant on December 6, 1985. 
 
         The surgery involved "release of carpal tunnel, left hand, under 
 
         local anesthesia."  The preoperative diagnosis was "carpal tunnel 
 
         syndrome, left hand."
 
         
 
              On Dr. Hales' notes of January 28, 1986, he states:
 
         
 
              Paul has been back to work and is having no difficulty from 
 
              his carpal tunnel but has pain over his MP joints with 
 
              impending trigger fingers.  We have injected those today 
 
              with some Celestone and Novacaine.  We will keep him off 
 
              work over a two weeks period to see if this won't clear and 
 
              then finally let him return to work without restrictions.
 
         
 
         (Ex. 1)
 
         
 
              On May 20, 1986, Dr. Hales wrote:  "As far as I can tell and 
 
         am concerned, there has been no permanent partial impairment of 
 
         Mr. Petersen's hand and that maximum healing concerning the 
 
         carpal tunnel syndrome has occurred."  (Ex. 5)
 
         
 
              On May 11, 1987, on a recheck, Dr. Hales' notes indicate the 
 
         following:
 
         
 
              Over all of this time he is still having ongoing difficulty 
 
              with tenosynovitis in his ring and middle fingers of his 
 
              left hand.  Originally we injected those and tried to avoid 
 
              surgery, but it has simply returned.  He is doing fine from 
 
              his carpal tunnel release.  I have recommended to him that 
 
              he consider undergoing A-1 pulley releases of this left ring 
 
              and middle finger to see if he can't finally get resolution 
 
              of this chronic tenosynovitis from impingement of the flexor 
 
                                                
 
                                                         
 
                   tendons at the A-1 pulley in the palm.
 
         
 
         (Ex. 1)
 
         
 
              Exhibit 4 is "Instructions to Patients For Outpatient 
 
         Surgery Under Local Anesthesia."  This document indicates that 
 
         the claimant's surgery was scheduled at "8:00 a.m. on Wed. June 
 
         10." Although this exhibit 4 did not have the year thereon, 
 
         exhibit 1, page 3, indicates June 10, 1987.
 
         
 
              On December 1, 1988, Dr. Hales wrote in response to 
 
         defendants' attorney's request for Dr. Hales to evaluate the 
 
         October 28, 1988 report by Dr. John R. Walker, M.D.:
 
         
 
              Obviously without evaluating the patient, it is impossible 
 
              for me to give a totally accurate assessment of what I think 
 
              the problem that Mr. Petersen is experiencing is and can 
 
              comment basically only from the notes that you have provided 
 
              for me.
 
         
 
                   The symptoms that Mr. Petersen has in his fourth finger 
 
              would not be the common symptoms that people would describe 
 
              from carpal tunnel syndrome or surgery related to carpal 
 
              tunnel syndrome.  It would sound to me like he may well have 
 
              a flexor tenosynovitis which is a form of tendinitis with 
 
     
 
                                  
 
                                                         
 
              sometimes some catching of the tendons at the A-1 pulley 
 
              directly over the MP joint in the palm.  For instance, the 
 
              inability to wear a ring on the left fourth finger because 
 
              of discomfort and pain could possibly be related to that and 
 
              again does not appear in any way to my estimation related to 
 
              his carpal tunnel syndrome.  The fact that he is getting 
 
              numb and tingly primarily in his fourth finger would also be 
 
              unusual for a carpal tunnel syndrome.  Since the median 
 
              nerve supplies basically only the radial side of the ring 
 
              finger and half of the ring finger is actually supplied by 
 
              the ulnar nerve, I would wonder if his symptoms might well 
 
              be secondary to an ulnar nerve problem at the elbow, rather 
 
              than a carpal tunnel problem at the wrist.  This is 
 
              certainly a common problem of having a compression 
 
              neuropathy later on of the ulnar nerve at the cubital tunnel 
 
              and his symptoms in his fourth finger in fact may not be 
 
              related to a carpal tunnel at all.  As Dr. Walker stated, 
 
              his grip, I am sure, for his age is possibly above the 
 
              standard with 110 kilometers on one side and 180 on the 
 
              other and based on that, I am not sure how Dr. Walker came 
 
              up with an impairment of 20 percent.  I have never ever seen 
 
              a patient that I have evaluated in an objective manner, 
 
              carefully measuring grip strengths with various positions on 
 
              the dynamometer, range of motion, etc., of the wrist and try 
 
              and do an objective impairment based on the standards 
 
              published by the American Medical Association have an 
 
              impairment that great after a carpal tunnel release. Again, 
 
              whether this is a subjective number obtained by Dr. Walker 
 
              or if it is truly based on some objective impairments that 
 
              have been measured and then determined from the guidelines 
 
              published by the American Medical Association is unclear.
 
         
 
         (Ex. 8)
 
         
 
              John R. Walker, M.D., in his December 29, 1986 letter, 
 
         opined:
 
         
 
              This man, for some reason, has not gotten a good result from 
 
              his carpal tunnel release.  I suspect that he also has a 
 
              tendonitis accompanying this but basically, I have the 
 
              following suggestions:
 
         
 
                   1.)  I think that the EMG should be repeated.
 
         
 
                   2.)  Probably, if this patient is having this much 
 
              difficulty one should re-explore the carpal tunnel as far as 
 
              the median nerve is concerned and I would be most interested 
 
              in seeing what the new EMG would show as far as the ulnar 
 
              nerve is concerned at the wrist.
 
         
 
                   At the present time this patient has a good deal of 
 
              temporary partial impairment.  Based on his subjective 
 
              complaints and the entire history here, along with the 
 
              examination I believe that he has at least a temporary 
 
              impairment of some 21% of the left, upper extremity.  This 
 
                                                
 
                                                         
 
                   would reduce down to 13% of the whole man.  I believe, with 
 
              further proper care and treatment probably of a surgical 
 
              nature, this could be reduced some, although we would 
 
              certainly want to await the new findings on the EMG.
 
         
 
         (Ex. 6)
 
         
 
              On October 28, 1988, Dr. Walker referred to his opinion on 
 
         December 29, 1986 and wrote:
 
         
 
                   Examination of the left hand and wrist today reveals 
 
              that his grip is down rather markedly.  He has excellent 
 
              grip actually.  It measures 180 kiloponts on the right which 
 
              is the dominant hand and 110 kiloponts on the left.  Pinch 
 
              between thumb and forefinger is 12 kilograms on the right 
 
              and 10 kilograms on the left.  He has a well-healed 1-1/2 
 
              inch or 4 cm. scar directly over the carpal tunnel area and 
 
              into the palm of the hand and wrist.  Pressure over the 
 
              carpal tunnel scar reveals that there is definite 
 
              tenderness.  There is no radiation into the fingers but it 
 
              does radiate rather markedly into the palm of the hand, to 
 
              about half way to the MP joint on the palmar surface.  There 
 
              is 1/2 inch atrophy of the left arm and 5/8 of an inch 
 
              atrophy of the left forearm. Wrist motion on the left is 
 
              unimpaired.  There is no particular or definite defect in 
 
              the sensorium of the left, upper extremity at this point.
 
         
 
                   ....
 
         
 
                   OPINION:  I believe that this man is certainly not any 
 
              better at all.  He is able to function as a janitor.  I 
 
              believe that he has a permanent, partial impairment of the 
 
              left, upper extremity amounting to 20% of that member which 
 
              again would convert to 13% of the whole man.
 
         
 
                   At the present time I still have the same 
 
              recommendations as far as EMG studies are concerned and 
 
              possible future surgery.
 
         
 
         (Exhibit 7)
 
         
 
                                 LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on September 25, 1985 which 
 
         arose out of and in the course of his employment.  McDowell v. 
 
         Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              An injury to a scheduled member may, because of after 
 
         effects (or compensatory change), result in permanent impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
         Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
                                                
 
                                                         
 
         
 
              An injury to a scheduled member which, because of 
 
         after-effects (or compensatory change), creates impairment to the 
 
         body as a whole entitles claimant to industrial disability.  
 
         Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
         (1961).  Daily v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).
 
         
 
              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.
 
         
 
              Claimant is continuing to suffer same or similar problems at 
 
         least in part that he has had since his original injury on 
 
         September 25, 1985.  This injury of the claimant arose out of and 
 
         in the course of employment and claimant's complaints are 
 
         causally connected to the injury occurring on September 25, 
 
         1985.
 
         
 
              Claimant's treating physician performed surgery on the 
 
         claimant on December 9, 1985 involving "release of carpal tunnel, 
 
         left hand, under local anesthesia."  It is obvious from the 
 
         medical records that this did not solve all of the claimant's 
 
         problems resulting from the September 25, 1985 injury, as shown 
 
         by exhibit 4 and other evidence.  Dr. Hales' scheduled outpatient 
 
         surgery under local anesthesia for the claimant was for 8:00 
 
         a.m., Wednesday, June 10, 1987.  This surgery was scheduled 
 
         pursuant to Dr. Hales' rechecking the claimant on May 11, 1987 
 
         when in his office.  In his notes, Dr. Hales wrote, "I have 
 
         recommended to him that he consider undergoing A-1 pulley release 
 
         of his left ring and middle finger to see if he can't finally get 
 
         resolution of this chronic tenosynovitis of impingement of a 
 
         flexor tendon at the A-1 pulley in the palm."
 
         
 
              This operation never took place and there is no explanation 
 
         from Dr. Hales.  Claimant testified that he was already for the 
 
         operation at the doctor's office when Dr. Hales came in and 
 
         indicated to the claimant that the insurance company had called 
 
         him and indicated to him not to perform the operation as the 
 
         insurance would not pay for the same.  At this time, Dr. Hales 
 
         did not perform the operation and the claimant went home, and as 
 
         of the present has not had this operation.
 
         
 
              Claimant went to John R. Walker, M.D., in December 1986.  
 
         Dr. Walker opined that "one should re-explore the carpal tunnel 
 
         as far as the median nerve is concerned and I would be most 
 
         interested in seeing what the new EMG would show as far as the 
 
         ulnar nerve is concerned at the wrist."  Dr. Walker further 
 
         opined that:  "I believe, with further proper care and treatment 
 
         probably of a surgical nature, this could be reduced some, 
 
         although we would certainly want to await the new findings on the 
 
                                                
 
                                                         
 
         EMG."  On this same date, he further opined:  "I believe that he 
 
         has at least a temporary impairment of some 21% of the left, 
 
         upper extremity. This would reduce down to 13% of the whole man."  
 
         On October 28, 1988, Dr. Walker opined:  "I believe that he has a 
 
         permanent, partial impairment of the left upper extremity 
 
         amounting to 20% of that member which again would convert to 13% 
 
         of the whole man."
 
         
 
              Also, on October 28, 1988, Dr. Walker opined:  "At the 
 
         present time I still have the same recommendations as far as EMG 
 
         studies are concerned and possible future surgery."  The evidence 
 
         does not indicate any further EMG studies or any scheduling of 
 
         recommended surgery.  It appears from the record that the 
 
         claimant desires surgery but does not have the funds to pay for 
 
         the same and that the insurance company or defendant has refused 
 
         to pay. The record at this time clearly indicates that claimant 
 
         needs additional surgery which could reduce claimant's medical 
 
         problems and impairment.  Defendants made the decision not to pay 
 
         for the surgery recommended by the treating physician, with whose 
 
         judgment the defendants have not disagreed, but, in fact, 
 
         emphasized. Defendants must live with this decision.  Dr. Hales' 
 
         credibility has been tarnished by the fact that he did not 
 
         proceed with the operation scheduled for June 10, 1987 although 
 
         he recommended the same May 11, 1987.  Dr. Hales seems to some 
 
         degree downplay what he knew to have been his opinion in May 
 
         1987.  Evidence seems to indicate that not only does the claimant 
 
         need "an A-1 pulley release of his left ring and middle finger to 
 
         see if he can't finally get resolution of this chronic 
 
         tenosynovitis from impingement of the flexor tendon at the A-1 
 
         pulley in the palm," but may also need another or modified type 
 
         of surgery involving "release of carpal tunnel, left hand," that 
 
         was performed on December 6, 1985.  Based on Dr. Walker's opinion 
 
         on December 29, 1986, "this man, for some reason, has not gotten 
 
 
 
                                  
 
                                                         
 
         a good result from his carpal tunnel release."  I agree.  Due to 
 
         Dr. Hales' inconsistent conclusions based on the same facts, 
 
         defendants should authorize a different medical specialist to 
 
         perform any surgery on claimant.
 
         
 
                             FINDINGS OF FACT
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  That claimant was injured on September 25, 1985 while 
 
         working for defendant employer.
 
         
 
              2.  That claimant's disability is the result of his injury 
 
         of September 25, 1985.
 
         
 
              3.  That claimant needs another operation involving an A-1 
 
         pulley release of his left ring and middle finger to see if he 
 
         can get resolution of his chronic tenosynovitis from impingement 
 
         of the flexor tendon at the A-1 pulley in the left palm.
 
         
 
              4.  That claimant has not gotten a good result from his 
 
         carpal tunnel release, and that he should have an EMG repeated 
 
         and any necessary surgery resulting from this diagnosis and test, 
 
         including another carpel tunnel release.
 
         
 
              5.  That claimant's initial healing period commenced on 
 
         November 21, 1985 through and including February 10, 1986 at the 
 
         weekly rate of $194.72.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant is entitled to healing period benefits at the rate 
 
         of $194.72 per week commencing November 21, 1985 through February 
 
         10, 1986.
 
         
 
              Claimant is entitled to an operation of his left hand 
 
         involving an A-1 pulley release of his left ring middle finger to 
 
         see if he can get a resolution of his chronic tenosynovitis from 
 
         impingement of the flexor tendon at the A-1 pulley in the left 
 
         palm, which should be paid for by defendant.
 
         
 
              Claimant shall be provided an EMG and if necessary another 
 
         or modified left carpal tunnel operation.
 
         
 
              Defendants shall provide claimant with another medical 
 
         specialist other than Dr. Hales to perform any surgery.
 
         
 
              Defendants shall pay for the 162 miles from claimant's place 
 
         of residence to Dr. Hales' office.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, it is ordered:
 
                                                
 
                                                         
 
         
 
              Defendants shall.pay unto claimant healing period benefits 
 
         at the rate of one hundred ninety-four and 72/100 dollars 
 
         ($194.72) per week commencing November 21, 1985 through February 
 
         10, 1986. Defendants shall be given credit for payments already 
 
         paid.
 
         
 
              Defendants shall provide claimant with a medical specialist 
 
         other than Dr. Hales for the performance of any surgery as herein 
 
         provided.
 
         
 
              Defendants shall only pay medical travel expense 
 
         reimbursement for one hundred sixty-two (162) miles involving 
 
         claimant's driving to and from Dr. Hales' office.  Nothing shall 
 
         be paid or reimbursed for travel to and from Dr. Walker's 
 
         office.
 
         
 
              Defendants shall pay the accrued weekly benefits in a lump 
 
         sum.
 
         
 
              Defendants shall pay interest on benefits awarded herein as 
 
         set forth in Iowa Code section 85.30.
 
         
 
              Defendants shall pay the costs of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file an activity report upon payment of 
 
         this award as required by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 22nd day of February, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            BERNARD J. O'MALLEY
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Lloyd E. Humphreys
 
         Mr. Lowell H. Forte
 
         Mr. Jerry Zimmerman
 
         Attorneys at Law
 
         200 2nd Ave SW
 
         Cedar Rapids, IA  52404
 
         
 
         Mr. John M. Bickel
 
         Attorney at Law
 
         500 MNB Building
 
         P.O. Box 2107
 
                                                
 
                                                         
 
         Cedar Rapids, IA  52406
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            2600; 2500; 1802
 
                                            Filed February 22, 1989
 
                                            Bernard J. O'Malley
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         PAUL R. PETERSEN, JR.,
 
         
 
              Claimant,                              File No. 810986
 
         
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         FARMSTEAD FOODS,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         SENTRY INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2600
 
         
 
              Claimant injured wrist by use of a high pressure hose used 
 
         for cleaning equipment.  Claimant had carpal tunnel operation 
 
         unsuccessfully performed.  Greater weight of medical evidence 
 
         suggested further EMG test and possible second carpal tunnel 
 
         operation plus performing an earlier recommended "trigger finger" 
 
         operation to resolve a chronic tenosynovitis condition.
 
         
 
         2500
 
         
 
              Defendants authorized doctor was ready to perform a "trigger 
 
         finger" operation in his office when a call from defendant 
 
         insurance company was received instructing the doctor not to do 
 
         the operation.
 
         
 
              Claimant awarded an opportunity for EMG test and another 
 
         carpal tunnel operation if further advised plus a "trigger 
 
         finger" operation to be provided.by defendants.  Defendants were 
 
         instructed to obtain for claimant another medical specialist to 
 
         perform any further test and surgery.
 
         
 
         1802
 
         
 
              Healing period benefits awarded for time off from first 
 
         surgery.  No permanent partial disability awarded as permanent 
 
         partial disability cannot be awarded until the results from 
 
         additional surgery are determined.  Medical evidence indicated 
 
         the recommended surgery could reduce any permanent disability.
 
         
 
                                                
 
                                                         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN BECHTEL,
 
         
 
              Claimant,
 
                                                   File  nos. 811066
 
         vs.                                                  811723
 
         
 
         WILSON FOODS CORPORATION,              A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Steven 
 
         Bechtel, claimant, against Wilson Foods Corporation, employer and 
 
         self-insured defendant, for benefits as a result of an alleged 
 
         injury to his lower back on November 6, 1985, and an injury to 
 
         his left hand on December 3, 1985.  A hearing was held at 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 Steven Bechtel, claimant and joint exhibits 1 
 
         through 28.  Both attorneys submitted excellent briefs.
 
         
 
                 STIPULATIONS-ALLEGED INJURY OF NOVEMBER 6, 1985
 
         
 
              The parties stipulated to the following matters with regard 
 
         to the alleged back injury of November 6, 1985.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the alleged injury.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $262.38 per week.
 
         
 
              That defendant makes no claim for credit for employee 
 
         nonoccupational group health plan benefits paid prior to 
 
         hearing.
 
         
 
              That defendant is entitled to a credit for one week of 
 
         workers' compensation benefits paid prior to hearing at the rate 
 
         of $262.38 per week.
 
         
 
              That there are no bifurcated claims.
 
         
 
                   ISSUES-ALLEGED INJURY OF NOVEMBER 6, 1985
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of hearing with respect to the alleged back injury of 
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE   2
 
         
 
         November 6, 1985.
 
         
 
              Whether claimant sustained an injury on November 6, 1985, 
 
         which arose out of and in the course of employment with 
 
         employer.
 
         
 
              Whether the alleged injury of November 6, 1985, was the 
 
         cause of temporary or permanent disability.
 
         
 
              Whether claimant is entitled to temporary or permanent 
 
         disability benefits, and if so, the nature and extent of 
 
         benefits.
 
         
 
                     STIPULATIONS-INJURY OF DECEMBER 3, 1985
 
         
 
              The parties stipulated to the following matters with regard 
 
         to the left hand injury of December 3, 1985.
 
         
 
              That an employee-employer relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on December 3, 1985, which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of temporary and permanent 
 
         disability.
 
         
 
              That claimant is entitled to temporary disability benefits 
 
         from December 4, 1985 to July 19, 1987, and again from December 
 
         31, 1987 to January 11, 1988, that these benefits have been paid, 
 
         and that temporary disability benefits are not a matter in 
 
         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 scheduled member 
 
         disability to the left hand.
 
         
 
              That the commencement date of permanent partial disability 
 
         benefits, in the event such benefits are awarded, is July 20, 
 
         1987.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $262.38 per week.
 
         
 
              That defendant claims no credit for employee nonoccupational 
 
         group health plan benefits paid prior to hearing.
 
         
 
              That defendant has previously paid 88 weeks and three days 
 
         of workers' compensation benefits characterized as temporary 
 
         disability benefits, 26.6 weeks of workers' compensation benefits 
 
         characterized as permanent partial disability benefits (based 
 
         upon a 14 percent permanent impairment of the left hand) at the 
 
         rate of $262.38 per week and that defendant is entitled to a 
 
         credit for these amounts which had been paid prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                        ISSUES-INJURY OF DECEMBER 3, 1985
 
         
 
              The sole issue for determination on this injury is whether 
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE   3
 
         
 
         claimant is entitled to permanent disability benefits, and if so, 
 
         the extent of entitlement.
 
         
 
                                PRELIMINARY MATTER
 
         
 
              The parties stipulated that the issues of: (1) whether 
 
         claimant is entitled to an Iowa Code section 85.39 independent 
 
         medical examination, and (2) whether claimant is entitled to 
 
         vocational rehabilitation benefits under Iowa Code section 85.70, 
 
         which issues are shown on the hearing assignment order as hearing 
 
         issues, can be deleted from consideration in this case because 
 
         defendant has already paid these benefits prior to hearing.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              All of the evidence was examined and considered.  The 
 
         following is a summary of the evidence most pertinent to this 
 
         decision.
 
         
 
              Claimant is 32 years old.  He graduated from high school in 
 
         1974 with B grades.  He was very active in extracurricular 
 
         activities.  He acquired nine varsity letters in football, 
 
         wrestling, track and baseball.  Claimant started to work for 
 
         employer in May of 1974 as a production worker.  In the fall of 
 
         1974, claimant started college at the University of Northern Iowa 
 
         and completed two years or four semesters of work.  Claimant 
 
         worked for employer in the summers while attending college.  
 
         Claimant left UNI in the fall of 1976 and sold combined insurance 
 
         for approximately one year until 1977.  Claimant then worked on 
 
         general construction until 1978.  Claimant started back to work 
 
         for employer again in October of 1978.  He terminated his 
 
         employment for employer at the time of his injury on December 3, 
 
         1985.  Claimant testified that he worked in the sausage 
 
         department from approximately 1978 to 1981.  He performed heavy 
 
         work batching up hot dog formula for three years.  He then 
 
         transferred to the kill floor and worked there from approximately 
 
         1981 to 1985.  He took even harder jobs on the kill floor such as 
 
         the gamel table, chiseling heads and dropping heads.  Claimant 
 
         testified that he liked and sought out strenuous work.  In both 
 
         of these jobs he lifted 100 pounds or more as a matter of course 
 
         and it never seemed to bother him.
 
         
 
              Claimant denied any prior injuries or problems with his back 
 
         arising out of high school athletics or while he was working on 
 
         construction.  He passed a preemployment physical examination for 
 
         employer which included x-rays.  He stated that he quit employer 
 
         three times and was hired four times, which is evidence that he 
 
         was a good employee and able to perform his work for employer.
 
         
 
              In November of 1985, claimant was kill floor janitor.  He 
 
         had been doing this job approximately eight to nine months.  It 
 
         involved a lot of shoveling, scooping and bending.  It also 
 
         involved rolling, pulling and tipping barrels of meat which 
 
         weighed anywhere from 150 pounds to 300 pounds.  Claimant 
 
         testified that he was in the best shape that he had ever been in 
 
         at this time.  He said that he was in his prime.
 
         
 
              On November 6, 1985, claimant pushed up on the bottom of a 
 
         barrel to tip it, and felt a pain down his left leg.  Claimant 
 
         said that he finished working that day and that he also worked on 
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE   4
 
         
 
         the following day, but on the third day he got stiff over night 
 
         and could not work.  Claimant said he saw Keith 0. Garner, M.D., 
 
         the company physician, who sent him to a chiropractor.  Claimant 
 
         said he returned to work on November 18, 1985.  He said that he 
 
         lost a few days from work and was paid workers' compensation.  
 
         Just a few days after he returned to work he sustained the injury 
 
         to his left hand.
 
         
 
              On December 3, 1985, claimant was dumping a partial barrel 
 
         of lungs into an auger.  In order to avoid lifting the barrel 
 
         approximately two feet to dump the barrel into the top of the 
 
         auger, due to continuing back pain from the earlier injury, 
 
         claimant put the lungs in a door on the side of the auger near 
 
         the bottom.  Claimant said that he had been having trouble 
 
         performing his job because it was hard bending over and hard 
 
         lifting the barrels because of the previous back injury on 
 
         November 6, 1985.
 
         
 
              When he dumped the lungs into the auger, one of them 
 
         "jumped".  Claimant explained that this meant that it was not 
 
         going through the auger.  He then put his left hand into the 
 
         auger and swatted at it and grabbed at it.  The auger grabbed his 
 
         left hand and began to pull him into the machine.  As it 
 
         happened, there was a gap in the auger blade that allowed him to 
 
         get his hand out, but it was severely injured before he got his 
 
         hand from the auger.
 
         
 
              Claimant was taken by ambulance to Cherokee Clinic.  From 
 
         there he was sent to Marion Health Center in Sioux City, where he 
 
         was treated by K. M. Keane, M.D., an orthopedic surgeon, who 
 
         performed two or three surgeries on him.  Claimant stated that he 
 
         was then treated by Stanley A. Bloustine, M.D, a plastic surgeon. 
 
          Claimant testified that the two top tendons in his left hand 
 
         were destroyed.  He lost a lot of skin.  The wound became 
 
         infected.  They sewed his hand to his chest for 22 or 23 days for 
 
         a skin graft.  Claimant testified that he had four surgeries 
 
         during his first hospitalization and has had ten surgeries during 
 
         the entire course of his treatment.
 
         
 
              Claimant testified that Dr. Bloustine told him that he could 
 
         play golf while recuperating as a form of physical therapy.  
 
         Claimant stated that when he did so he snapped one of the 
 
         tendons.  As a result his hand was in a cast for six months.  
 
         Claimant stated that after the tendon snapped, he did not trust 
 
         Dr. Bloustine.  Claimant testified that Dr. Garner then assigned 
 
         him to see Thomas P. Ferlic, M.D., an orthopedic surgeon.  
 
         Claimant testified that Dr. Ferlic installed a plastic tendon in 
 
         his hand at first to form a tunnel and then later performed a 
 
         tendon transplant and graft from his leg.
 
         
 
              Claimant testified that he was having so much trouble with 
 
         his hand that he forgot to mention his back trouble to the 
 
         doctors.
 
         
 
              Claimant testified that he has been attending Western Iowa 
 
         Tech since the fall of 1987 as a full-time student.  He said that 
 
         he is learning to write computer programs for businesses in a 
 
         computer programming course.  Claimant stated he had completed 
 
         five quarters and has two more quarters to complete before 
 
         graduating with an associate of arts (AA) degree in computer 
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE   5
 
         
 
         programming.  Claimant testified that he sits in chairs, types 
 
         and reads in order to perform the programming job.  Claimant 
 
         alleged that because of his left hand he received a D grade in 
 
         typing and that his left hand prevented him from getting a 4.0 
 
         grade point average.  Claimant asserted that if he lifts with his 
 
         left hand his wrist swells up.  Claimant demonstrated that he 
 
         cannot bend his first, second and third fingers individually.  
 
         They bend only as a group.  Claimant said that he uses his left 
 
         hand primarily as a guide.  He is trying to train himself to use 
 
         his left hand in more and more endeavors.  Extended sitting 
 
         causes his low back to ache and his left hip to ache.  He can no 
 
         longer play softball because he cannot slide.  He can no longer 
 
         exercise on his rowing machine or exercise machine.  He can no 
 
         longer bowl.  He said his back nags everyday and sometimes it 
 
         interrupts his sleeping.  Back in November of 1985, he had 
 
         radicular pain down his leg, but by 1987 the pain was 
 
         concentrated mostly in the left side of his low back.
 
         
 
              Claimant stated that he is not taking any medication at the 
 
         present time for either of his injuries.  His last doctor 
 
         appointment was when he saw Dr. Ferlic for the last time.  
 
         Claimant told that he was examined and evaluated by A. J. 
 
         Wolbrink, M.D., an orthopedic surgeon.  Claimant said he felt 
 
         that Dr. Wolbrink did a more thorough job of testing and 
 
         measuring and examining him than Dr. Ferlic.  He did concede, 
 
         however, that Dr. Ferlic used a physical therapist to do 
 
         practically the same thing for him.  Claimant said he did not 
 
         return to work for employer because with the limitations of his 
 
         left hand, his pay would not be as good as it was previously and 
 
         he did not know whether he would have trouble with his back 
 
         again.
 
         
 
              Claimant displayed a number of scars in and around his palm 
 
         of his left hand.  There was a large scar in the palm of his left 
 
         hand that was approximately three or four inches long and another 
 
         prominent scar on the inner aspect of his left arm just above the 
 
         wrist that was approximately three or four inches long.  There 
 
         was another scar on the back of the left hand behind the index 
 
         finger which appeared to be approximately three inches long.  
 
         Claimant demonstrated that his left index finger and long finger 
 
         did not bend individually.
 
         
 
              The medical evidence shows that Dr. Keane treated claimant 
 
         on December 3, 1985, for an auger injury to the left hand, with 
 
         severed tendons on the dorsum of the hand, a fractured proximal 
 
         phalanx of the left long finger and a triangular flap on the 
 
         dorsum of the left hand based distally (Exhibit 22, page 2).
 
         
 
              Dr. Bloustine saw claimant approximately 25 times from 
 
         December 3, 1985 until June 6, 1986, for several surgeries, skin 
 
         grafting, infections and to remove necrotic material from the 
 
         wound (Exs. 1-11).  On January 27, 1986, Dr. Bloustine reported:
 
         
 
              I have been following Mr. Bechtel since soon after his 
 
              injury on December 3, 1985.  He had extensive injury to 
 
              his left hand.  This required removal of several 
 
              tendons and coverage of a very large open area with 
 
              tissue from his upper abdomen.  His fractures are 
 
              healing well and this area is also healing.  However, 
 
              he has significant swelling and stiffness of the 
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE   6
 
         
 
              fingers of his left hand, especially the index and long 
 
              fingers.  He is going to require extensive therapy and 
 
              further reconstructive surgery in the future.
 
         
 
         (Ex. 5)
 
         
 
              Dr. Bloustine reported again on June 6, 1986, in the 
 
         following words:
 
         
 
              His problem still relates to full extension of his 
 
              index and long fingers and to flexion of his long 
 
              finger.  I plan to explore these areas again to try to 
 
              release scar tissue and get him better range of motion.  
 
              At the same time I also plan to excise as much of his 
 
              chest skin graft as possible to make that look better.
 
         
 
              I know he has been out of work a long time, but he did 
 
              have a serious injury ....
 
         
 
         (Ex. 10)
 
         
 
              Dr. Bloustine updated Dr. Garner again on June 23, 1986, as 
 
         follows:
 
         
 
              Mr. Bechtel underwent tenolysis of his index and long 
 
              finger on June 6.  I also excised the skin graft of his 
 
              right chest to give him a better appearance of that 
 
              area.
 
         
 
              Even though the operative area looks quite clean and I 
 
              released a lot of scar tissue, he got another 
 
              post-operative infection and breakdown of the part of 
 
              the dorsum of his hand.
 
         
 
         (Ex. 11)
 
         
 
              Dr. Bloustine reported for the last time on September 26, 
 
         1986, with the following statement:
 
         
 
              Steven is making very slow, but definite, progress.  
 
              The open area on the dorsum of his hand is healing in.  
 
              He still has minimal active motion of the DIP joint of 
 
              his long finger.  Hopefully therapy and time will 
 
              improve the situation and make him more, employable.  
 
              As per my previous letter, I hope there will be some 
 
              opportunity for him to go back to some sort of light 
 
              duty after things settle down a little more.
 
         
 
         (Ex. 16)
 
         
 
              Dr. Bloustine did not assess a permanent functional 
 
         impairment rating for claimant.
 
         
 
              Dr. Garner transferred claimant to Dr. Ferlic in July of 
 
         1986 (Ex. 13, p. 2).  Claimant saw Dr. Ferlic from August 12, 
 
         1986 to January 14, 1988, on approximately 14 different dates 
 
         (Ex. 16).  On September 16, 1986, Dr. Ferlic inserted a silastic 
 
         tendon rod into his left hand, long finger (Ex. 14).  On January 
 
         6, 1987, he removed the Hunter rod and performed a flexor tendon 
 
         graft of the long finger of the left hand from the plantaris 
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE   7
 
         
 
         tendon in his leg (Ex. 17).  On June 29, 1987, Dr. Ferlic 
 
         reported:  "As you know he has been seen extensively in this 
 
         office.  His history is well known to you.  I feel that the 
 
         patient has a 14 percent disability of his hand.  No disability 
 
         is anticipated in his leg where he had his tendon harvested 
 
         from." (Ex. 19).
 
         
 
              Claimant had additional trouble when on December 31, 1987, 
 
         Dr. Ferlic operated again to remove a foreign body from the left 
 
         long finger.  A wire as well as a nonabsorbable suture were 
 
         removed (Ex. 20).  Dr. Ferlic said on January 14, 1988:
 
         
 
              Just a note on Steven Bechtel.  He did grow out 
 
              staphylococcus from his wound, although I believe that 
 
              this was an abscess in terms of soft tissue only.  It 
 
              may also involve bone.  There is no accurate way of 
 
              telling at this time.  I would simply like to treat him 
 
              with oral antibiotics which I have done.
 
         (Ex.21)
 
              Claimant was examined and evaluated by Dr. Wolbrink on 
 
         November 12, 1987.  Dr. Wolbrink rather succinctly summarized 
 
         claimant's treatment and condition as follows:
 
         
 
              Mr. Bechtel suffered an auger injury to the dorsum of 
 
              his left hand on December 3, 1985.  Over the subsequent 
 
              months he has had nine surgical procedures for initial 
 
              treatment and reconstruction of his injury.  This 
 
              initially included debridement of the area and then a 
 
              skin flap was transferred from the right chest wall in 
 
              order to get skin coverage from it.  This flap needed 
 
     
 
         
 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE   8
 
         
 
              to be defatted and the extensor tendon needed to be 
 
              repaired in order to get extension in the index finger.  
 
              In the process, stiffness developed in the long finger 
 
              and, therefore, a tenolysis was done of the flexor 
 
              tendon.  This later ruptured while he was doing some 
 
              golfing which he had been instructed to do as part of 
 
              the therapy program.  He, therefore, underwent staged 
 
              flexor tendon graft replacement using a flexor tendon 
 
              from the right leg.
 
         
 
              At the present time he has regained a fair amount of 
 
              function in his hand.  However, he continues to have 
 
              purulent drainage from underneath the long finger 
 
              fingernail and occasionally will develop more 
 
              inflammation there.  He notices the weakness, so that 
 
              when he attempts to carry his briefcase he will get 
 
              cramping in his hand.  He has normal touch sensation 
 
              but has noticed that he cannot feel cold quite 
 
              normally.
 
         
 
         (Ex. 23, p. 1)
 
         
 
              Dr. Wolbrink found that claimant had sustained a 26 percent 
 
         permanent impairment of the left hand due to the limited motion 
 
         and strength as a result of the injury of December 3, 1985, based 
 
         on the Guides to the Evaluation of Permanent Impairment, second 
 
         edition published by the American Medical Association.  Dr. 
 
         Wolbrink then added these comments:  "Mr.  Bechtel has had 
 
         extensive and excellent treatment for his severe hand injury.  It 
 
         is quite functional at present, although it does limit him from 
 
         doing well in the typing class lie is taking at present. There 
 
         are no suggestions for treatment of his hand." (Ex. 23, p. 2).
 
         
 
              Dr. Wolbrink then added these comments on December 1, 1987: 
 
         "Mr.  Bechtel could not tolerate excessively repetitive work with 
 
         his left hand and could not tolerate a cold, damp environment due 
 
         to residuals of a traumatic injury to his hand." (Ex. 24).
 
         
 
              As to claimant's alleged low back injury of November 6, 
 
         1985, Dr. Garner noted that it occurred to the right low back 
 
         (Ex. 13, pp. 1 & 3).  However, claimant testified at the hearing 
 
         that he saw Dr. Garner for pain in his left low back in November 
 
         of 1985.  Both claimant and Dr. Garner agreed that claimant saw a 
 
         chiropractor and then returned to work a few days later.  After 
 
         that, there is no mention or any evidence of a problem or 
 
         treatment for the back injury until claimant saw Dr. Wolbrink on 
 
         November 12, 1987.  Dr. Wolbrink summarized claimant's back 
 
         problem as follows:
 
         
 
              Mr. Bechtel related to me that he initially noticed 
 
              pain in his back one month prior to his hand injury.  I 
 
              should note that this is confirmed by clinical notes 
 
              from the local physician who he saw at that time.  He 
 
              had been on the clean-up crew on the kill floor at the 
 
              time, and this required the lifting or tilting of some 
 
              very heavy buckets.  He developed back pain at one 
 
              point while lifting one of these and over the next 
 
              couple of days this progressed to some pain in his left 
 
              leg.  He was under the care of his local physician and 
 
              also a local chiropractor and actually received a 
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE   9
 
         
 
              chiropractic treatment on December 2.  This then was 
 
              overshadowed by his more significant hand injury.  
 
              However, he does continue to have discomfort in the 
 
              lower part of his back, especially with sitting for too 
 
              long at one time.  He does not have very much leg pain 
 
              any longer.  This was evaluated by Dr. Neff in Des 
 
              Moines and a CT scan obtained.  The report of the CT 
 
              scan says that he has a spondylolysis with 
 
              spondylolisthesis.
 
         
 
         (Ex. 23, p. 1)
 
         
 
              Dr. Wolbrink continued to describe the back situation as 
 
         follows:
 
         
 
              Mr. Bechtel has a grade I spondylolisthesis of the 
 
              lumbar spine.  He is having mild residual muscle spasm 
 
              and pain which had its onset while working in November 
 
              1985.  He has no limitation of motion from this.  
 
              However, the "Guides to the Evaluation of Permanent 
 
              Impairment" state that "grade I or II spondylolysis and 
 
              spondylolisthesis with aggravation, persistent muscle 
 
              spasm, rigidity, and pain resulting from trauma" gives 
 
              a permanent impairment of 200 of the whole person.  Mr. 
 
              Bechtel did have the spondylolisthesis prior to his 
 
              injury of 1985.  However, that was a factor aggravating 
 
              his pre-existing condition.  He has no significant 
 
              limitation of motion, but does continue to have mild 
 
              pain and spasm.  Therefore, it would be my opinion that 
 
              based on these factors, he has a permanent impairment 
 
              of about 3 percent of the whole person due to his back 
 
              injury of November 1985.
 
         
 
         (Ex. 23, p. 2)
 
         
 
              In his final follow-up letter Dr. Wolbrink made this comment 
 
         on December 1, 1987: "Mr. Bechtel has spondylolisthesis of the 
 
         lumbar spine.  Excessive lifting or bending and twisting may 
 
         increase his back problem." (Ex. 24).
 
         
 
              Claimant was examined for an evaluation by Scott B. Neff, 
 
         D.O., on August 13, 1987.  Dr. Neff accepted claimant's version 
 
         of how the back injury occurred on November 6, 1985.  He said 
 
         that x-rays obtained elsewhere were normal.  It is believed that 
 
         Dr. Neff was referring to the x-ray report of July 30, 1987, from 
 
         the Sioux Valley Memorial Hospital which showed that claimant had 
 
         a normal lumbosacral spine series (Ex. 28).  Dr. Neff stated that 
 
         claimant simply had a muscle strain on November 6, 1985, which 
 
         has long since been resolved.  Dr. Neff had difficulty relating 
 
         claimant's left side low backache with his work because claimant 
 
         had not worked for approximately two years.  Dr..Neff ordered a 
 
         CT scan (Ex. 26).
 
         
 
              Dr. Neff saw claimant again on August 17, 1987.  X-rays 
 
         which claimant brought from Cherokee Hospital showed 
 
         spondylolysis defect as L-5.  Dr. Neff said it was a blunt defect 
 
         and had been there a long time.  The CT scan which Dr. Neff 
 
         ordered showed spondylolysis at L-5 bilaterally which was 
 
         developmental and not acute.  Claimant's neurologic examination 
 
         was normal.  He did not need a fusion at the time of the 
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE  10
 
         
 
         examination.  If his symptoms worsened then decompression could 
 
         be considered.  He concluded by saying that the spondylolysis was 
 
         a degenerative-developmental condition which had not been 
 
         aggravated, caused or worsened by his minimal work exposure (Ex. 
 
         27).
 
         
 
              For reasons of their own choosing, defendant did not have 
 
         the left hand examined or evaluated by Dr. Neff.  At least there 
 
         is no examination or evaluation by Dr. Neff in the medical 
 
         exhibits introduced at the hearing.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              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(l).
 
         
 
              Claimant has the burden of  proving  by  a  preponderance of 
 
         the evidence that he received an injury on November 6, 1985, 
 
         which arose out of and in the course of his employment.  McDowell 
 
         v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
         Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124  N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2nd 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v Davenport Produce Co., 254 Iowa 130, 115 N.w.2d 
 
         812, 815 (1962).
 
         
 
              As to the low back injury of November 6, 1985, claimant has 
 
         sustained the burden of proof by a preponderance of the evidence 
 
         that he sustained a temporary aggravation of his preexisting 
 
         spondylolysis condition.  He lost a few days from work.  He was 
 
         paid workers' compensation for this time off.  There is no 
 
         evidence of any other medical treatment or care for this back 
 
         strain after claimant saw the chiropractor in November or 
 
         December of 1986.  The back injury is not mentioned again until 
 
         the evaluation examination by Dr. Wolbrink on November 12, 1987-- 
 
         a full two years later.  Dr. Neff's opinion is preferred over Dr. 
 
         Wolbrink's opinion with respect to the back.  It is determined 
 
         that claimant sustained only a temporary aggravation of a 
 
         preexisting condition, but this is sufficient to say that 
 
         claimant did sustain an injury on November 6, 1985, which arose 
 
         out of and in the course of his employment with employer.  It is 
 
         further determined that the injury was the cause of temporary 
 
         disability for a few days and that claimant was paid his 
 
         entitlement for permanent disability benefits prior to hearing.  
 
         It is also determined that claimant did not sustain a permanent 
 
         functional impairment as a result of the injury of November 6, 
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE  11
 
         
 
         1985.  It is determined that claimant is not entitled to 
 
         permanent partial disability benefits for the injury of November 
 
         6, 1985.
 
         
 
              The next matter to be discussed is the causal connection and 
 
         extent of permanent partial disability to claimant's left hand as 
 
         a result of the injury of December 3, 1985.
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of December 3, 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 right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Iowa Code section 85.34(2)(1) provides: "for the  loss of a 
 
         hand, weekly compensation during one hundred ninety  weeks."
 
         
 
              Claimant sustained an extremely serious injury to his left 
 
         nondominant hand.  Tendons were severed on the dorsum of the left 
 
         hand.  The proximal phalanx of the long finger of the left hand 
 
         was fractured.  There was a triangular flap on the dorsum of the 
 
         hand.  Claimant testified that he had four surgeries initially 
 
         and ten surgeries all together before his treatment was 
 
         completed.  This is supported by the medical evidence.  Claimant 
 
         had several infections.  Necrotic material was removed on a 
 
         number of occasions.  Dr. Wolbrink found as late as November 13, 
 
         1987, that there was still purulent drainage in the long finger 
 
         of the left hand.  The tendon in claimant's long finger of the 
 
         left hand was destroyed, a rod was inserted for several months to 
 
         form a tunnel and a tendon graft and transplant was made from the 
 
         plantaris tendon of his right leg to the long finger of the left 
 
         hand.  Claimant was off work and paid workers' compensation 
 
         benefits for a total of 88 weeks and three days due to this 
 
         injury.
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE  12
 
         
 
         
 
              Claimant testified that his current disability is  that if 
 
         he lifts with his left hand then his left wrist swells ups.  
 
         Claimant testifies that he cannot bend his index finger, long 
 
         finger and ring finger individually, but they only bend (flex) as 
 
         a group.  He stated that he only uses his left hand as a guide.  
 
         It is not dependable enough to use alone because he lacks 
 
         strength in the left hand.  Due to the injury to his left hand he 
 
         cannot type well.  His inability to type prevented him from 
 
         receiving a 4.0 grade point average in college.
 
         
 
              Dr. Wolbrink verified that claimant still has  purulent 
 
         drainage from the long finger of the left hand and that 
 
         occasionally it will develop inflammation.  Dr. Wolbrink added 
 
         that claimant cannot feel cold normally.  He cannot perform 
 
         excessively repetitive work with his left hand and could not 
 
         tolerate to work in a cold environment due to the residuals of 
 
         the traumatic injury to the left hand.  The left hand and arm 
 
         exhibit several prominent scars and claimant demonstrated the 
 
         lack of ability to bend the first, second and third fingers 
 
         individually.
 
              Dr. Keane, Dr. Bloustine and Dr. Neff did not rate the left 
 
         hand.  Dr. Ferlic rated the left hand with a 14 percent permanent 
 
         functional impairment.  Dr. Wolbrink rated the left hand with a 
 
         26 percent permanent functional impairment.  Based on all of the 
 
         foregoing evidence, the appearance of the left hand and 
 
         claimant's demonstrated function of the left hand in the court 
 
         room and based upon all of the evidence presented in this case, 
 
         coupled with agency expertise [Iowa Administrative Procedure Act 
 
         17A.14(5)], it is determined that claimant has sustained a 
 
         permanent impairment to the left hand of 25 percent.  Based upon 
 
         the evidence summarized above it is determined that Dr. 
 
         Wolbrink's evaluation is much more accurate than Dr. Ferlic's 
 
         evaluation.  Dr. Wolbrink's rating is more consistent with the 
 
         evidence presented by claimant in this case.  Rockwell Graphics 
 
         Systems, Inc. v. Prince, 366 N.W.2d 187, 192 (Iowa 1985).  
 
         Although claimant's treating orthopedic surgeon, Dr. Ferlic, gave 
 
         claimant a permanent impairment rating, he did not explain how he 
 
         arrived at this rating, whether he used the AMA Guides, whether 
 
         he used the orthopedic surgeon's guide, whether he used some 
 
         other guides, or whether he used no guides at all.  Porter v. 
 
         IBP, Inc., file no. 674250, appeal decision December 29, 1986.  
 
         Claimant's testimony and demonstrated difficulties may be 
 
         considered in determining the actual loss of use which is 
 
         compensable so long as earning capacity is not one of the factors 
 
         considered.  Soukup, 222 Iowa 272, 268 N.W. 598 (1936); Pizza Hut 
 
         of Washington, Inc. v. St. Paul Fire and Marine Ins. Co., II Iowa 
 
         Industrial Commissioner Report 317 (1979); Langrehr v. Warren 
 
         Packaging Corp., Thirty-fourth-Biennial Report of the Industrial 
 
         Commissioner, 179 (1980); Conyers v. Ling-Casler Joint Venture, 
 
         Vol. I, No. 2 State of Iowa Industrial Commissioner Decisions, 
 
         309 (1984).
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented the following 
 
         findings of fact are made.
 
         
 
              That claimant did sustain an injury to his low back on the 
 
         left side on November 6, 1985, while working as an employee for 
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE  13
 
         
 
         employer when he strained his back while tipping a barrel; that 
 
         this injury was the cause of claimant being off work for a few 
 
         days; that claimant received one chiropractic treatment for this 
 
         injury; that claimant received temporary disability benefits 
 
         while off work for this injury; and that claimant returned to 
 
         work and was never treated again for this low back injury.
 
         
 
              That Dr. Neff's finding that claimant temporarily aggravated 
 
         his preexisting condition of spondylolysis and spondylolisthesis 
 
         is a correct finding.
 
         
 
              That claimant caught his left hand in an auger on December 
 
         3, 1985, and received a very severe injury to the left hand.
 
         
 
              That the injury resulted in severed tendons, a fractured 
 
         proximal phalanx on the left long finger and a triangular partial 
 
         flap on the dorsum of the left hand.
 
         
 
              That claimant received ten surgeries including a major skin 
 
         graft, a tendon release, a tendon graft and transplant from his 
 
         right leg to his long finger on the left hand, surgery for 
 
         removal of necrotic tissue, surgery for infections, and surgery 
 
         for the removal of foreign bodies such as wire and nonabsorbable 
 
         sutures.
 
         
 
              That claimant has sustained limited motion and strength in 
 
         his left hand.  That claimant's left hand is susceptible to cold 
 
         temperatures.
 
         
 
              That claimant cannot perform excessively repetitive work 
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE  14
 
         
 
         with his left hand.
 
         
 
              That Dr. Ferlic assessed a 14 percent permanent impairment 
 
         rating, but gave no explanation at how he arrived at this 
 
         rating.
 
         
 
              That Dr. Wolbrink gave a 26 percent impairment rating, 
 
         stating that he used the AMA Guides and showed his measurements 
 
         and the results of his testing, which were the basis for his 
 
         determination.
 
         
 
              That claimant has sustained a 25 percent permanent 
 
         functional impairment to the left hand.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and foregoing 
 
         principles of law the following conclusions of law are made.
 
         
 
              That claimant did sustain an injury on November 6, 1985, 
 
         which arose out of and in the course of his employment with 
 
         employer.
 
         
 
              That the injury of November 6, 1985, was the cause of 
 
         temporary disability and that claimant has been fully paid for 
 
         his entitlement to temporary disability benefits.
 
         
 
              That the injury of November 6, 1985, was not the cause of 
 
         any permanent impairment or disability.
 
         
 
              That claimant is not entitled to permanent disability 
 
         benefits for the injury of November 6, 1985.
 
         
 
              That the injury of December 3, 1985, was the cause of a 25 
 
         percent permanent functional impairment of the left hand.
 
         
 
              That claimant is entitled to 47.5 weeks of permanent partial 
 
         disability based upon a 25 percent permanent impairment of the 
 
         left hand (190 x .25 = 47.5).
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant forty-seven point five (47.5) 
 
         weeks of permanent partial disability benefits at the stipulated 
 
         rate of two hundred sixty-two and 38/100 dollars ($262.38) per 
 
         week in the total amount of twelve thousand four hundred 
 
         sixty-three and 05/100 dollars ($12,463.05) commencing on the 
 
         stipulated commencement date of July 20, 1987.
 
         
 
              That these benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendant is entitled to a credit for twenty-six point 
 
         six (26.6) weeks of permanent partial disability benefits paid 
 
         prior to hearing at the rate of two hundred sixty-two and 38/100 
 
         dollars ($262.38) per week in the total amount of six thousand 
 
         nine hundred seventy-nine and 31/100 dollars ($6,979.31).
 

 
         
 
         
 
         
 
         BECHTEL V. WILSON FOODS CORPORATION
 
         PAGE  15
 
         
 
         
 
              That defendant pay the costs of this action 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 30th day of November, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR.
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Harry Smith
 
         Attorney at Law
 
         P.O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. David Sayre
 
         Attorney at Law
 
         233 Pine St.
 
         P.O. Box 535
 
         Cherokee, Iowa 51012
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          1106; 1108.50; 1401; 1402.20;
 
                                          1402.30; 2206; 1801; 1402.40;
 
                                          1803
 
                                          Filed November 30, 1988
 
                                          WALTER R. McMANUS, JR.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         STEVEN BECHTEL,
 
         
 
              Claimant,
 
                                                  File nos. 811066
 
         vs.                                                811723
 
         
 
         WILSON FOODS CORPORATION,             A R B I T R A T I 0 N
 
         
 
              Employer,                           D E C I S I 0 N
 
              Self-Insured
 
              Defendant.
 
         
 
         
 
         
 
         1106; 1108.50; 1401; 1402.20; 1402.30; 2206
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that he sustained a temporary aggravation of his 
 
         preexisting back condition.
 
         
 
         1402.40; 1801
 
         
 
              He was temporarily totally disabled for a few days and was 
 
         paid all benefits due him prior to hearing for temporary total 
 
         disability.
 
         
 
         1402.40; 1803
 
         
 
              Claimant failed to prove permanent partial disability caused 
 
         by this injury.  He saw a chiropractor once or twice, returned to 
 
         work and was never treated again.  Claimant's physician awarded 3 
 
         percent.  Defendant's physician awarded 0 percent.  Defendant's 
 
         physician said temporary aggravation of preexisting spondylolysis 
 
         and spondylolisthesis.
 
         
 
         1401; 1402.40; 1803
 
         
 
              Claimant awarded 25 percent of the left hand from an 
 
         extremely severe injury when his hand got caught in an auger.  He 
 
         lost almost two years from work, had ten surgeries, and several 
 
         limitations and restrictions imposed.  Treating physician awarded  
 
         14 percent; evaluating physicial awarded 26 percent; deputy 
 
         awarded 25 percent.