Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARRETT DALE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 811815
 
            CRAMER BROTHERS BRIDGE        :
 
            CONSTRUCTION,                 :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 Defendants appeal from an arbitration decision awarding 
 
            permanent partial disability benefits as the result of an 
 
            alleged injury on December 10, 1985.  The record on appeal 
 
            consists of the transcript of the arbitration proceeding and 
 
            joint exhibits 1 through 13.  Both parties filed briefs on 
 
            appeal.  
 
            
 
                                      ISSUES
 
            
 
                 Defendants state the following issues on appeal:
 
            
 
                   I.  Whether the hearing officer erred in finding 
 
                 that Barrett Dale's description of his symptoms is 
 
                 accurate;
 
            
 
                  II.  Whether the hearing officer erred in finding 
 
                 that Dale is well motivated, that it is unlikely 
 
                 any work can be found for him within his 
 
                 qualifications and work restrictions, and that 
 
                 Dale does not have sufficient earning capacity to 
 
                 be self-supporting;
 
            
 
                 III.  Whether the hearing officer erred in finding 
 
                 that Barrett Dale has suffered a 75% loss of 
 
                 earning capacity as a result of the injury he 
 
                 sustained on December 10, 1985, and in finding 
 
                 that the injuries Barrett Dale sustained on 
 
                 December 10, 1985, were a proximate cause of the 
 
                 symptoms and disability with which he is presently 
 
                 afflicted. 
 
            
 
                              REVIEW OF THE EVIDENCE
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 The arbitration decision adequately and accurately 
 
            reflects the pertinent evidence and it will not be set forth 
 
            herein. 
 
            
 
                                  APPLICABLE LAW
 
            
 
                 The citations of law in the arbitration decision are 
 
            appro-priate to the issues and the evidence.     
 
            
 
                                     ANALYSIS
 
            
 
                 Initially, it is noted that although defendants raised 
 
            causal connection in their appeal issue 3, this issue was 
 
            not addressed in the briefs of the parties.  A review of the 
 
            record reveals that the medical testimony is consistent in 
 
            establishing that at least a portion of claimant's present 
 
            impairment is causally related to his work injury.
 
            
 
                 Claimant has suffered an injury to his back.  Claimant 
 
            has therefore suffered an injury to the body as a whole.  In 
 
            assessing claimant's industrial disability, claimant's 
 
            permanent physical impairment is a factor.  Claimant has 
 
            received a rating of ten percent permanent partial 
 
            impairment of the body as a whole.  However, Scott B. Neff, 
 
            D.O., has stated that five percent of claimant's permanent 
 
            impairment is due to his work injury, and five percent is 
 
            caused by claimant's preexisting degenerative disc disease.  
 
            
 
                 Claimant has also been given medical restrictions 
 
            against bending, stooping, twisting, standing for long 
 
            periods of time and sitting for long periods of time.  
 
            Claimant has a lifting restriction of 5-10 pounds.  Claimant 
 
            is not presently released to return to his work.
 
            
 
                 Contrary to claimant's appeal argument, only the five 
 
            percent impairment related to claimant's work injury can be 
 
            compensated.  The fact that claimant was able to continue 
 
            working with his prior five percent impairment and the fact 
 
            that a rating of impairment was not given until symptoms of 
 
            pain from the work injury appeared does not change the 
 
            medical testimony of Dr. Neff that only five percent is 
 
            related to the work injury.
 
            
 
                 Claimant's age is also a factor in the determination of 
 
            industrial disability.  Claimant was approaching retirement 
 
            age at the time of his injury.  This factor tends to reduce 
 
            claimant's industrial disability, as claimant's injury has 
 
            deprived him of less earning capacity than a similar injury 
 
            would cause a younger worker with more of his or her work 
 
            life ahead of them.  Claimant's subjective plans to retire 
 
            at a certain age carry little weight, as such plans, even if 
 
            announced to others prior to the injury, are always subject 
 
            to change according to numerous factors, and are therefore 
 
            speculative.  On the other hand, claimant's age does make 
 
            retraining or further education difficult. 
 
            
 
                 Claimant's education level limits his opportunities to 
 
            jobs involving physical labor.  Claimant's work experience 
 
            is also limited to jobs involving physical labor and truck 
 
            driving.  Claimant's medical restrictions prevent him from 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            returning to either physical labor or truck driving.  
 
            Claimant has lost earnings as a result of his work injury, 
 
            and is presently living on social security.
 
            
 
                 Claimant's motivation to work is also a factor.  The 
 
            vocational rehabilitation workers who testified both 
 
            described claimant as motivated to work.  Claimant's work 
 
            history over several years verifies this.  However, when 
 
            claimant was offered light duty work by his employer after 
 
            his injury, claimant declined the job.  Claimant testified 
 
            he did not want the position because it was part-time, and 
 
            because he was not sure he could perform the duties.  
 
            Claimant stated he did not know Dr. Neff had approved this 
 
            position for him.  
 
            
 
                 Claimant's unwillingness to accept this position does 
 
            reflect adversely on his motivation to work.  However, it is 
 
            noted that claimant was not offered a full-time light duty 
 
            position, and that this position was withdrawn at some point 
 
            after claimant declined it.  
 
            
 
                 It is also noted that claimant did not apply for any 
 
            jobs.  The vocational rehabilitation witnesses described job 
 
            categories fitting claimant's restrictions, but did not 
 
            investigate any specific jobs for claimant or conduct 
 
            vocational testing.  
 
            
 
                 Claimant has a relatively low impairment rating, yet 
 
            claimant has fairly severe restrictions.  Although jobs may 
 
            exist that claimant could do, such jobs would not be 
 
            numerous in light of these restrictions.  Contrary to the 
 
            deputy's analysis, the standard is not whether claimant is 
 
            able to earn enough to support himself.  The relevant 
 
            inquiry is claimant's loss of earning capacity.  In light of 
 
            claimant's age, education, prior work experience, physical 
 
            impairment, loss of earnings, and all other appropriate 
 
            factors for determining industrial disability, claimant is 
 
            found to have an industrial disability of 75 percent. 
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 1.  Claimant's description of his symptoms is accurate.
 
            
 
                 2.  Claimant's medical condition is accurately 
 
            described by Drs. Neff and Boulden.
 
            
 
                 3.  Claimant is well motivated to be gainfully 
 
            employed, but it is unlikely that any work can be found for 
 
            him, for which he would be qualified and which would fit 
 
            within the medical restrictions recommended by Drs. Neff and 
 
            Boulden.
 
            
 
                 4.  Claimant, at the time of injury, was approaching 
 
            normal retirement age.
 
            
 
                 5.  Claimant has suffered a 75 percent loss of his 
 
            earning capacity as a result of the injury he sustained on 
 
            December 10, 1985.
 
            
 
                                CONCLUSIONS OF LAW
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            
 
                 The injuries claimant sustained on December 10, 1985 
 
            were a proximate cause of the symptoms and disability with 
 
            which he is presently afflicted.
 
            
 
                 Claimant is entitled to receive 375 weeks of 
 
            compensation representing a 75 percent permanent partial 
 
            disability under the provisions of Iowa Code section 
 
            85.34(2)(u).
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed.
 
            
 
                                      ORDER
 
            
 
                 THEREFORE, it is ordered: 
 
            
 
                 That defendants pay claimant three hundred seventy-five 
 
            (375) weeks of compensation for permanent partial disability 
 
            at the stipulated rate of three hundred fourteen and 95/100 
 
            dollars ($314.95) per week payable commencing September 25, 
 
            1986 as stipulated by the parties.
 
            
 
                 That defendants receive credit for all amounts of 
 
            permanent partial disability previously paid and that any 
 
            remaining past due, accrued amounts be paid in a lump sum 
 
            together with interest pursuant to Iowa Code section 85.30.
 
            
 
                 That defendants pay the costs of this action pursuant 
 
            to Division of Industrial Services Rule 343-4.33.
 
            
 
                 That defendants file claim activity reports as 
 
            requested by this agency pursuant to Division of Industrial 
 
            Services Rule 343-3.1.
 
            
 
     
 
            
 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of February, 1990.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                 DAVID E. LINQUIST
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Channing L. Dutton
 
            Attorney at Law
 
            West Towers Office Complex
 
            1200 35th St., Suite 500
 
            West Des Moines, Iowa 50265
 
            
 
            Mr. Ross H. Sidney
 
            Ms. Iris J. Post
 
            Attorneys at Law
 
            222 Grand Ave.
 
            P.O. Box 10434
 
            Des Moines, Iowa 50306
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1803
 
            Filed February 28, 1990
 
            David E. Linquist
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            BARRETT DALE,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 811815
 
            CRAMER BROTHERS BRIDGE        :
 
            CONSTRUCTION,                 :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            UNITED STATES FIDELITY AND    :
 
            GUARANTY COMPANY,             :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant with a back injury and five percent permanent 
 
            partial physical impairment of the body as a whole, age 63, 
 
            with experience limited to truck driving, an inability after 
 
            his injury to return to truck driving, and severe 
 
            restrictions on lifting, bending, stooping, standing or 
 
            sitting, and lacking a high school education, was rated as 
 
            having an industrial disability of 75 percent. 
 
            
 
 
            
 
 
 
              
 
 
 
                   
 
         
 
         
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BARRETT DALE,
 
         
 
              Claimant,
 
         
 
         vs 
 
                                                     File No. 811815
 
         CRAMER BROTHERS BRIDGE
 
         CONSTRUCTION,                           A R B I T R A T I O N
 
         
 
              Employer,                             D E C I S I O N
 
         
 
         and
 
                                                         F I L E D
 
         UNITED STATES FIDELITY AND
 
         GUARANTY COMPANY,                              JAN 10 1989
 
         
 
              Insurance Carrier,                   INDUSTRIAL SERVICES
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Barrett Dale 
 
         against Cramer Brothers Bridge Construction, his former employer, 
 
         and United States Fidelity and Guaranty Company, the employer's 
 
         insurance carrier.  The case was heard and fully submitted on 
 
         March 25, 1988 at Des Moines, Iowa.  The record in the proceeding 
 
         consists of testimony from Barrett Dale, Mary Dale and Elizabeth 
 
         Barstad.  The record also contains jointly offered exhibits 1 
 
         through 13.
 
         
 
                                   ISSUES
 
         
 
              The issue presented by the parties for determination is the 
 
         degree of permanent disability, if any, that was proximately 
 
         caused by the injury claimant sustained on December 10, 1985.  It 
 
         was stipulated that all entitlement to compensation for healing 
 
         period had been paid and that any compensation for permanent 
 
         partial disability was due commencing September 25, 1986.  It was 
 
         stipulated that the rate of compensation is $314.95 per week.
 
         
 
                                 SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Of all the evidence received at the hearing, only that 
 
         considered most pertinent to this decision is discussed. 
 
         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.
 
                                                
 
                                                         
 
         
 
              Barrett Dale is a 63-year-old, married man who quit school 
 
         during the twelfth grade.  He attended no other formal education 
 
         and has not obtained a GED.  Dale grew up on a farm and performed 
 
         farmwork including care of livestock and crop production.  Dale 
 
         served in the Merchant Marines for four years where he worked as 
 
         a waiter and cook.  Upon his return from the Merchant Marines, 
 
         Dale reentered farming for five or six years, but left after 
 
         having two bad years.  Dale then obtained factory work at a 
 
         General Motors plant in Kansas City, but was laid off after three 
 
         or four years.
 
         
 
              Dale returned to Decatur County, Iowa and obtained a job 
 
         driving a truck transporting corn from bins to railroad cars.  
 
         The work involved scooping corn into an auger.  Dale then 
 
         obtained a job at an elevator in Leon, Iowa which he held from 
 
         1956 until 1965.  He hauled corn, fertilizer and feed.  The work 
 
         involved scooping and also carrying 50-pound bags of fertilizer.  
 
         Dale performed some maintenance work on the elevators and trucks 
 
         of the elevator business.  When the business declined, Dale left 
 
         and briefly obtained a job with the local school district where 
 
         he was lunchroom manager and drove a school bus.  He left that 
 
         job in 1967 because of low pay.
 
         
 
              Dale entered the construction industry in 1967 as part of a 
 
         road building crew.  He drove a CAT and scraper.  He also 
 
         performed maintenance on vehicles.  In 1970, he obtained a job 
 
         performing maintenance work on forklifts, air compressors, 
 
         elevators and a crane.  In 1971, he obtained a job with the Ruan 
 
         Company where he maintained trucks and trailers.
 
         
 
              In 1973, Dale began work for Cramer Brothers.  His work 
 
         duties included driving a truck and performing mechanical work 
 
         upon the employer's trucks, cranes and CATs.  The truck driving 
 
         function also included loading of heavy equipment, lumber, pumps, 
 
         timbers and other materials used in the business.  On one 
 
         occasion, Dale left the employ of Cramer Brothers for 
 
         approximately one year to manage an apartment house in Indianola 
 
         where he lives.  He also returned to work at Ruan Company.  He 
 
         was asked to return to Cramer Brothers and did so.
 
         
 
              Barrett Dale testified that he enjoyed his work with Cramer 
 
         Brothers and that he was in good standing with the employer.  He 
 
         stated that he had never been fired from any job except the 
 
         apartment manager job when he refused to serve alcoholic 
 
         beverages at a party.  Dale stated that he has never been 
 
         unemployed except for approximately one week when he went to 
 
         obtain work at Kansas City.  He has been laid off on three 
 
         occasions during the winters when he was employed by Cramer 
 
         Brothers.  Dale stated that the layoffs were the only times when 
 
         he obtained a vacation.
 
         
 
              Dale testified that he was guaranteed 50 hours of work per 
 
         week with Cramer Brothers and generally worked 50-70 hours per 
 
         week.
 
                                                
 
                                                         
 
         
 
              Dale testified that he had generally been in good health 
 
         throughout his life and was still in generally good health except 
 
         for his low back and some hearing loss.  His back trouble started 
 
         in approximately 1973 when unhooking a trailer from a tractor.  
 
         In 1979, he was attempting to lift a bundle of lumber and again 
 
         injured his back.  He was off work three months.  While off in 
 
         1979, he also had hernia repair surgery.  Dale had worked 
 
         continuously between the 1973 and 1979 injuries.  He again worked 
 
         continuously between the 1979 and 1985 injuries.  He related that 
 
         he had occasional discomfort in his back, but that it had not 
 
         prevented him from doing his job.
 
         
 
              Dale's third significant back injury occurred on December 
 
         10, 1985.  He was attempting to lift a spool of cable that had 
 
         frozen down to the ground.  While jerking and prying on it, he 
 
         injured his back.  When the condition did not resolve after 
 
         approximately three days of rest, he sought treatment from Ben F. 
 
         Gaumer, D.O., a general practitioner in Indianola, Iowa.  Dale 
 
         stated that he had pain in his lower back that ran down his right 
 
         leg.  He stated that the treatment from Dr. Gaumer did not 
 
         resolve his complaints and that he was then sent to Sinesio 
 
         Misol, M.D.  Dr. Misol released him to return to work on January 
 
         10, 1986.  Claimant stated that he did his job, but was not able 
 
         to do it well.  He stated that his right leg would get numb and 
 
         that, when he drove the truck, he had to use his left leg with 
 
         the brakes, clutch and accelerator.  He was then taken off work 
 
         again.  Claimant was contacted by Marla Torgerson, a 
 
         rehabilitation specialist with Intracorp.  He was sent to Scott 
 
         Neff, D.O., an orthopaedic surgeon.  Dr. Neff released him to 
 
         return to work in early March. Claimant stated that, when he 
 
         first returned, he had help with his job, but that as time 
 
         passed, the business got busy and he was on his own.  At times he 
 
         worked 12-15 hours per day.  On July 1, 1986, he was taken off 
 
         work again by Dr. Neff.
 
         
 
              Dale testified that his physicians have not actually 
 
         recommended surgery and that he is reluctant to have surgery 
 
         unless it is necessary.  Dale stated that he walks quite a bit to 
 
         keep his weight down and to maintain his ability to walk.  He 
 
         stated that, at times, he loses control of his leg and falls. 
 
         Dale stated that his condition seems to be getting worse.  He 
 
         stated that he would be unable to sit through a movie and that 
 
         driving is a particular problem.
 
         
 
              Dale testified that, prior to 1985, he was quite active and 
 
         did remodeling on his home, including building on a room for a 
 
         beauty shop to be operated by his wife.  He stated that he is 
 
         unable to do anything like that now and that his wife does all 
 
         the yard work.  Dale stated that he has been contacted by 
 
         rehabilitation counselors, but that they have not tested him or 
 
         retrained him.
 
         
 
              Dale testified that he decided to retire during the summer 
 
         of 1987.  He stated that he was unable to work and that, by 
 
                                                
 
                                                         
 
         retiring, he could obtain his retirement money.  Dale stated that 
 
         he has not received workers' compensation benefits since May, 
 
         1987.  Dale stated that he and his wife now live on his Social 
 
         Security disability of $750 per month and that the retirement 
 
         benefit was a lump sum of $19,000.
 
         
 
              Dale stated that he declined a light-duty job with Cramer 
 
         Brothers that was offered.  He stated that he understood the job 
 
         would be sweeping floors and sorting bolts.  It was his 
 
         understanding that the job would be only part-time and that he 
 
         would work only whenever requested.  He also questioned whether 
 
         he would be able to perform the job.  Dale stated that he has 
 
         continuous pain which impairs his mental abilities.  Dale stated 
 
         that, prior to the injury, he had considered retiring at age 65 
 
         and then performing part-time work helping on farms or helping 
 
         carpenters in the area.  Dale stated that he takes aspirin and 
 
         Advil daily and takes prescription pain medication approximately 
 
         once each week.
 
         
 
              Dale stated that he has not looked for a job since 1985.  He 
 
         was not aware that Dr. Neff had approved the part-time, 
 
         light-duty job with Cramer Brothers.
 
         
 
              Mary Dale, claimant's wife, stated that there has been a 
 
         considerable change in claimant's activities since 1985.  She 
 
 
 
                                   
 
                                                         
 
         stated that, prior to the injury, he was a workaholic and did 
 
         everything, including taking care of the yard.  She stated that 
 
         his work was his only hobby, that he liked it and that he never 
 
         tried to avoid work.
 
         
 
              Elizabeth Barstad, a qualified vocational consultant, 
 
         testified that she has evaluated claimant's case.  She felt that, 
 
         within the restrictions of 5-10 pounds on lifting and the other 
 
         activity restrictions imposed by Dr. Neff, there are jobs which 
 
         claimant could do including benchwork, mailroom work, cashier and 
 
         hotel/motel management.  She had not investigated to see if any 
 
         of those jobs were available, but from her experience, she 
 
         indicated that they are available.  Barstad also indicated that 
 
         claimant could return to school, but that his academic aptitudes 
 
         have not been tested.  Barstad agreed that it would take some 
 
         work to place claimant into a job.  She was uncertain with regard 
 
         to whether or not he could be placed.  Barstad stated that the 
 
         part-time, light-duty job with Cramer Brothers was a unique job 
 
         opportunity.
 
         
 
              Jo Ellen Parrott, a vocational consultant with Intracorp, 
 
         testified by way of deposition, exhibit 13, that she had been 
 
         involved in management of Dale's rehabilitation file.  Parrott 
 
         also believed that claimant could find work within Dr. Neff's 
 
         restrictions, but had no particular job with any particular 
 
         employer to recommend (page 23).  Parrott indicated that light 
 
         jobs within claimant's medical restrictions are most commonly 
 
         seen when an employer modifies a job in order to make 
 
         accommodations for one of its injured employees (page 32).  She 
 
         felt that claimant could work as a parking lot attendant.  She 
 
         was uncertain with regard to whether or not she could place him 
 
         in employment (page 39).
 
         
 
              Dale has been seen and evaluated by a number of physicians. 
 
         The primary recent physician in charge of his care is orthopaedic 
 
         surgeon Scott Neff, D.O. Dr. Neff has diagnosed claimant as 
 
         having degenerative disc disease with spinal stenosis at multiple 
 
         levels (exhibit 1, page 2; exhibit 8, page 386).  Dr. Neff has 
 
         recommended that claimant's restrictions include lifting in the 
 
         range of 5-10 pounds, avoidance of repetitive bending, stooping 
 
         and lifting with his back, and avoidance of prolonged sitting and 
 
         prolonged standing.  Dr. Neff felt that claimant would not be 
 
         able to return to his prior occupation of a truck driver (exhibit 
 
         1, pages 15 and 16; exhibit 8, pages 398 and 399)
 
         
 
              Dr. Neff has rated claimant as having a ten percent 
 
         permanent partial disability.  He characterized the rating as 
 
         conservative (exhibit 1, page 9; exhibit 8, page 398).  Dr. Neff 
 
         indicated that, of the ten percent rating, five percent was due 
 
         to the degenerative disc disease, but he also indicated that 
 
         degenerative changes shown by x-ray are not generally rated as a 
 
         permanent impairment unless they are symptomatic (exhibit 8, 
 
         pages 402 and 403).  Dr. Neff indicated that the restrictions he 
 
         has placed upon claimant are due to his most recent injury, 
 
         rather than the degenerative disc disease (exhibit 1, page 1).
 
                                                
 
                                                         
 
         
 
              William Boulden, M.D., another orthopaedic surgeon, 
 
         indicated that he is in agreement with Dr. Neff's assessment of 
 
         claimant's case (exhibit 1, pages 2-5).
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The appearance and demeanor of Barrett Dale and Mary Dale 
 
         was observed as they appeared and testified at the hearing.  
 
         Their testimonies regarding Barrett Dale's symptoms and 
 
         limitations are accepted as being correct.  The assessments of 
 
         claimant's medical condition as provided by Drs. Neff and Boulden 
 
         are likewise accepted as being correct.
 
         
 
              As 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).
 
         
 
              Industrial disability or loss of earning capacity is a 
 
         concept that is quite similar to impairment of earning capacity, 
 
         an element of damage in a tort case.  Impairment of physical 
 
         capacity creates an inference of lessened earning capacity.  The 
 
         basic element to be determined, however, is the reduction in 
 
         value of the general earning capacity of the person, rather than 
 
         the loss of wages or earnings in a specific occupation.  
 
         Post-injury earnings create a presumption of earning capacity.  
 
         The earnings are not synonymous with earning capacity and the 
 
         presumption may be rebutted by evidence showing the earnings to 
 
         be an unreliable indicator.  Carradus v. Lange, 203 N.W.2d 565 
 
         (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
         516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
         34th Biennial Report, 218 (1979): 2 Larson Workmen's Compensation 
 
         Law, sections 57.21 and 57.31.
 
         
 
              Barrett Dale was 63 years of age at the time of hearing and 
 
         is now 64 years of age.  He has a limited education.  The 
 
         restrictions that have been imposed by Drs. Neff and Boulden are 
 
         such that he is unable to perform jobs that require bending, 
 
         twisting, stooping, lifting of more than ten pounds, driving, 
 
         prolonged sitting or prolonged standing.  The testimony from the 
 
         vocational consultants that, in their opinion, such jobs are 
 
                                                
 
                                                         
 
         available was not convincing.  Neither could identify a place 
 
         where any job that would be consistent with Dale's restrictions 
 
         was available.  Dale has no demonstrated aptitude for retraining 
 
         or other academic pursuits.  At his age, substantial retraining 
 
         is not a viable option.  Dale has not sought employment, yet 
 
         neither Barstad nor Parrott could assure Dale that they could 
 
         place him even if a full attempt to obtain employment were made. 
 
          The only job that was found was a part-time job with the current 
 
         employer.
 
         
 
              Dale asserts that he is totally disabled.  His failure to 
 
         search for work, however, prohibits the odd-lot doctrine and 
 
         shifting of the burden of proof.  Emshoff v. Petroleum 
 
         Transportation Services, file number 753723, (Appeal Decision 
 
         March 31, 1987).
 
         
 
              There are few individuals in our society whose earning 
 
         capacity is zero.  There are numerous examples of individuals 
 
         with severe physical impairments who are able to produce some 
 
         level of earning.  The real test of total disability, from a 
 
         workers' compensation standpoint, is whether or not the person 
 
         has the ability to earn a living for himself.  There is no 
 
         evidence in this case that Barrett Dale, even if he had accepted 
 
         the part-time employment with Cramer Brothers, would have earned 
 
         sufficient amounts to support himself. It is probable that he 
 
         does not have sufficient residual earning capacity to support 
 
         himself.  Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 
 
         1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 181, 192 (Iowa 
 
         1980); Diederich v. Tri-City Railway, 219 Iowa 587, 594, 258 N.W. 
 
         899, 902 (1935).
 
         
 
              Claimant has retired.  Dr. Neff has indicated that claimant 
 
         can function in a retirement mode with minimal symptoms (exhibit 
 
         8, page 392).  The fact that a worker is of normal retirement age 
 
         can limit the amount of industrial disability which is caused by 
 
         an injury.  Brecke v. Turner-Bush, Inc., 34th Biennial Report, 34 
 
         (Appeal Decision 1979), Hainey v. Protein Blenders, Inc., file 
 
         number 708955, (Appeal Decision October 18, 1985); Cruz v. 
 
         Chevrolet Grey Iron, Division of General Motors, 247 N.W.2d 764, 
 
         775 (Mich. 1976).  Barrett Dale was 61 years of age at the time 
 
         of injury.  The evidence indicates that he intended to retire 
 
         from Cramer Brothers at approximately age 65 and to then perform 
 
         other part-time work.  The injury has required him to retire 
 
         earlier than age 65.  It has eliminated the possibility of 
 
         part-time work after retirement.
 
         
 
              When all the material factors of industrial disability are 
 
         considered, it is determined that Barrett Dale sustained a 75% 
 
         permanent partial disability as a result of the injuries he 
 
         sustained on December 10, 1985.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Barrett Dale's description of his symptoms is accurate.
 
         
 
                                                
 
                                                         
 
              2.  Dale's medical condition is accurately described by Drs. 
 
         Neff and Boulden.
 
         
 
              3.  Dale is well motivated to be gainfully employed, but it 
 
         is unlikely that any work can be found for him, for which he 
 
         would be qualified and which would fit within the medical 
 
         restrictions recommended by Drs. Neff and Boulden.
 
         
 
              4.  Barrett Dale, at the time of injury, was approaching 
 
         normal retirement age.
 
         
 
              5.  Barrett Dale does not have sufficient earning capacity 
 
         to be self-supporting.
 
         
 
              6.  Barrett Dale has suffered a 75% loss of his earning 
 
         capacity as a result of the injury he sustained on December 10, 
 
         1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The injuries Barrett Dale sustained on December 10, 1985 
 
         were a proximate cause of the symptoms and disability with which 
 
         he is presently afflicted.
 
         
 
              3.  Barrett Dale is entitled to receive 375 weeks of 
 
         compensation representing a 75% permanent partial disability 
 
         under the provisions of Iowa Code section 85.34(2)(u).
 
         
 
                                      ORDER
 
                                   
 
                                                         
 
              IT IS THEREFORE ORDERED that defendants pay claimant three 
 
         hundred seventy-five (375) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of three hundred 
 
         fourteen and 95/100 dollars ($314.95) per week payable commencing 
 
         September 25, 1986 as stipulated by the parties.
 
         
 
              IT IS FURTHER ORDERED that defendants receive credit for all 
 
         amounts of permanent partial disability previously paid and that 
 
         any remaining past due, accrued amounts be paid in a lump sum 
 
         together with interest pursuant to Iowa Code section 85.30.
 
         
 
              IT IS FURTHER ORDERED that defendants pay the costs of this 
 
         action pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              IT IS FURTHER ORDERED that defendants file Claim Activity 
 
         Reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 10th day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Channing L. Dutton
 
         Attorney at Law
 
         West Towers Office Complex
 
         1200 35th Street, Suite 500
 
         W. Des Moines, Iowa  50265
 
         
 
         Mr. Ross H. Sidney
 
         Ms. Iris J. Post
 
         Attorneys at Law
 
         2222 Grand Avenue
 
         P.O. Box 10434
 
         Des Moines, Iowa  50306
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
        
 
 
 
 
 
        
 
                                            1402.40, 1803, 1804, 4100
 
                                            Filed January 10, 1989
 
                                            MICHAEL G. TRIER
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        BARRETT DALE,
 
        
 
            Claimant,
 
        
 
        vs.
 
                                                  File No. 811815
 
        CRAMER BROTHERS BRIDGE
 
        CONSTRUCTION,                          A R B I T R A T I O N
 
        
 
            Employer,                            D E C I S I O N
 
        
 
        and
 
        
 
        UNITED STATES FIDELITY AND
 
        GUARANTY COMPANY,
 
        
 
            Insurance Carrier,
 
            Defendants.
 
        
 
        
 
        1402.40, 1803, 1804, 4100
 
        
 
             Claimant, who was 61 years of age at the time of injury and 
 
             63 at time of hearing, was awarded 75% permanent partial 
 
             disability as a result of a back injury. He had a limited 
 
             education and restrictions which would likely remove him from any 
 
             and all types of gainful employment. The only job found was a 
 
             part-time, light-duty job with the employer. His proximity to 
 
             normal retirement age, however, resulted in a 75% permanent 
 
             partial disability award rather than permanent total disability.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CARL EDWARD NATHANIEL,
 
         
 
              Claimant,
 
         
 
         vs.                                         File No. 811933
 
         
 
         GEORGE A. HORMEL & CO.,                  A R B I T R A T I O N
 
         
 
              Employer,                              D E C I S I O N
 
         
 
         and
 
                                                        F I L E D
 
         LIBERTY MUTUAL,
 
                                                       JUL 14 1989
 
              Insurance Carrier,
 
                                               IOWA INDUSTRIAL 
 
                                               COMMISSIONER
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is an arbitration proceeding brought by Carl Edward 
 
         Nathaniel, claimant, against the Second Injury Fund.  This case 
 
         was heard by the undersigned on December 21, 1988, in Ottumwa, 
 
         Iowa.
 
         
 
              The record consists of joint exhibits 1-8 and exhibit 9.  
 
         The record also consists of the testimony of claimant and the 
 
         testimony of Archie L. Buxton.
 
         
 
                                  ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on December 21, 1988, the issues presented by the 
 
         parties are:
 
         
 
              1.  Whether claimant sustained injuries on October 31, 1987 
 
         and December 3, 1985;
 
         
 
              2.  Whether the two alleged injuries are a cause of 
 
         permanent disability; and,
 
         
 
              3.  Whether the Second Injury Fund is liable for any 
 
         benefits.
 
         
 
                                 STIPULATIONS
 
         
 
              Prior to the hearing, the parties have entered into a number 
 
         of stipulations.  The stipulations are as follows:
 
                                                
 
                                                         
 
         
 
              1.  The existence of an employer-employee relationship 
 
         between claimant and employer at the time of the alleged injury; 
 
         and,
 
         
 
              2.  In the event of an award of weekly benefits, the rate of 
 
         weekly pay is stipulated to be $265.34 per week.
 
         
 
                            FACTS PRESENTED
 
         
 
              Claimant, at the time of the hearing, was 38-years-old.  He 
 
         is married with one child.  Claimant moved to Ottumwa from 
 
         Toledo, Ohio in 1984.  For approximately six months, claimant 
 
         remodeled homes for HUD.  On September 17, 1984, claimant was 
 
         hired by Hormel.  After a period of time, claimant was required 
 
         to engage in repetitive type activities where he was using a 
 
         whizzer knife.
 
         
 
              Claimant testified he developed problems.  He stated Jack W. 
 
         Brindley, M.D., performed surgery for a "trigger finger" problem 
 
         on claimant's left ring finger.  The surgery occurred on June 25, 
 
         1985.  Claimant stated the surgery rectified the situation.
 
         
 
              Claimant also testified he experienced pain in his left hand 
 
         and arm.  Claimant was again examined by Dr. Brindley in 1986.
 
         
 
              Claimant also testified he experienced problems with his 
 
         left foot once he was required by his employer to wear rubber 
 
         boots. Claimant reported he was again referred to Dr. Brindley.
 
         
 
              Dr. Brindley, an orthopedic surgeon, testified by way of 
 
         deposition.  He stated a nerve conduction study was done on the 
 
         left arm.  The study indicated there was a mild compression of 
 
         the ulnar nerve at the elbow.  Dr. Brindley determined there was 
 
         a five percent functional impairment of the left arm at that 
 
         time. Dr. Brindley testified he had no reason to change that 
 
         rating since then, but that a nerve conduction test only revealed 
 
         a borderline problem.  The third of three nerve conduction 
 
         studies indicated a normal conduction.  No surgery was ever 
 
         performed on claimant's left arm.  Dr. Brindley indicated under 
 
         cross-examination that the reasons he assessed a 5 percent 
 
         impairment rating were due to the positive nerve conduction test 
 
         and to the claimant's subjective complaints.
 
         
 
              Dr. Brindley also testified he saw claimant for a problem 
 
         with the left foot.  Dr. Brindley stated that he referred 
 
         claimant to a podiatrist, Russell Dan Luke, D.P.M., who performed 
 
         surgery on the foot for Morton's neuroma.  Dr. Brindley opined 
 
         that subsequent to the surgery, claimant suffered from reflex 
 
         sympathetic dystrophy.  Dr. Brindley described reflex sympathetic 
 
         dystrophy as:
 
         
 
              People, when they have an injury to their hands or their foot 
 
              or their knee, sometimes can get a funny phenomenon where the 
 
              sympathetic nervous system reacts in a different manner.  And 
 
                                                
 
                                                         
 
                   they'll get swelling and pain and stiffness and so forth.  
 
              And I thought he had that after his surgery.  And then he has 
 
              continued to complain of some foot pain, too, that he had 
 
              some trouble with his foot.
 
         
 
         (Exhibit 3, page 14, lines 17-24)
 
         
 
              Dr. Brindley could not state with any certainty whether 
 
         claimant's expressed pain would ever subside.
 
         
 
              Dr. Luke testified by deposition.  He indicated he treated 
 
         claimant for Morton's neuroma of the left foot and that surgery 
 
         was performed on February 25, 1986.  Dr. Luke stated standing on 
 
         hard surfaces was a contributing factor to the occurrence of 
 
         Morton's neuroma.  He also opined the wearing of rubber boots, as 
 
         required of claimant at work, could cause claimant's pain. 
 
         Subsequent to the surgery, Dr. Luke testified claimant complained 
 
         of severe pain in his left foot.  In June of 1986, Dr. Luke 
 
         indicated he x-rayed claimant's foot.  He opined claimant 
 
         suffered from osteoporosis as claimant had lost some of the 
 
         density in his foot.  Dr. Luke testified he also believed 
 
         claimant could be experiencing a stub neuroma.
 
         
 
              Dr. Luke indicated claimant's complaints of constant pain 
 
         were very unusual in cases where surgery for Morton's neuroma had 
 
         been performed.  Dr. Luke also opined the usual recovery period 
 
         was from three to eight weeks.  After the recovery period, Dr. 
 
         Luke stated a patient could stand on hard surfaces.  Dr. Luke 
 
         stated he did not place any limitations on claimant's 
 
         activities.
 
         
 
              David J. Boarini, M.D., testified by way of deposition.  He 
 
         stated he was certified by the American Board of Neurological 
 
         Surgery and by the National Board of Medical Examiners.  He 
 
         stated he saw claimant on two occasions.  The first time was in 
 
         October of 1986 and the second time was in July of 1988.  Dr. 
 
         Boarini testified he found claimant to have a normal neurological 
 
         examination.  Dr. Boarini opined claimant did not suffer from 
 
         reflex sympathetic dystrophy.  While Dr. Boarini did not find any 
 
         neurological problems, he did opine claimant suffered from 
 
         bursitis in his shoulder.  However, Dr. Boarini could not find 
 
         any functional impairment to the arm and shoulder.  Neither could 
 
         Dr. Boarini find any neurological problem with claimant's foot.  
 
         At best, Dr. Boarini opined claimant was experiencing a mild case 
 
         of epicondylitis to the left elbow.  Dr. Boarini stated he had no 
 
         explanation for claimant's complaints of pain.
 
         
 
                         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(1).
 
         
 
              In the instant case, the focus is whether the second injury 
 
         fund is applicable.  Iowa Code section 85.64 provides, in part:
 
                                                
 
                                                         
 
         
 
              If an employee who has previously lost, or lost the use of, 
 
              one hand, one arm, one foot, one leg, or one eye, becomes 
 
              permanently disabled by a compensable injury which has 
 
              resulted in the loss of or loss of use of another such 
 
              member or organ, the employer shall be liable only for the 
 
              degree of disability which would have resulted from the 
 
              latter injury if there had been no pre-existing disability. 
 
               In addition to such compensation, and after the expiration 
 
              of the full period provided by law for the payments thereof 
 
              by the employer, the employee shall be paid out of the 
 
              "Second Injury Fund" created by this division the remainder 
 
              of such compensation as would be payable for the degree of 
 
              permanent disability involved after first deducting from 
 
              such remainder the compensable value of the previously lost 
 
              member or organ.
 
         
 
              Under Iowa Code sections 85.63 through 85.69, three 
 
         requirements must be met in order to establish fund liability: 
 
         First, claimant must have previously lost or lost the use of a 
 
         hand, an arm, a foot, a leg or an eye; second, through another 
 
         compensable injury, claimant must sustain another loss or loss of 
 
         use of another member; and third, permanent disability must exist 
 
         as to both injuries.  If the second injury is limited to a 
 
         scheduled member, then the employer's liability is limited to the 
 
 
 
                         
 
                                                         
 
         schedule and the fund is responsible for the excess industrial 
 
         disability over the combined scheduled losses of the first and 
 
         second injuries.  Simbro v. DeLong's Sportswear, 332 N.W.2d 886 
 
         (Iowa 1983), and Fulton v. Jimmy Dean Meat Company, file number 
 
         755039, Nos. 87-1567/87-1518 (Affirmed by the Iowa Supreme Court 
 
         on February 22, 1989.)
 
         
 
              Claimant has failed to establish that the Second Injury Fund 
 
         is liable for benefits to him.  Claimant has not met the test 
 
         requirements set out in sections 85.63 through 85.69.
 
         
 
              Specifically, claimant has failed to prove there was an 
 
         initial injury where he had lost the use of his hand, his arm, 
 
         his foot, his leg or his eye.  Claimant, by his own admission, 
 
         stated his "trigger finger" surgery was successful and there were 
 
         no resulting complications.  Claimant has alleged a problem with 
 
         his left arm and shoulder.  However, there is little evidence to 
 
         indicate there was a loss of use of the arm, or that a permanent 
 
         disability exists.
 
         
 
              There is a dispute among the experts concerning the mild 
 
         compression of the ulnar nerve.  Dr. Boarini is board certified in 
 
         neurological surgery.  Yet, he found no abnormalities in the two 
 
         neurological examinations which he performed.  Dr. Brindley, on 
 
         the other hand, is not board certified in neurological surgery.  
 
         He is an orthopedic surgeon.  Dr. Brindley found the second of 
 
         three neurological examinations established there was a borderline 
 
         indication of a mild compression of the ulnar nerve.  Dr. Brindley 
 
         also determined claimant had a 5 percent functional impairment to 
 
         the left arm.  This rating was based upon the second neurological 
 
         exam coupled with claimant's subjective complaints.  Great weight 
 
         is accorded to the opinion of Dr. Boarini who is a specialist in 
 
         this area.  He is rendering an opinion in his field of expertise. 
 
         See:  Hemm v. Van Buren Community School District (Arbitration 
 
         Decision File No. 636036).  From a neurological perspective, Dr. 
 
         Boarini found no functional impairment to the left arm.  It is the 
 
         determination of the undersigned that claimant has no permanent 
 
         functional impairment to his left arm.
 
         
 
              Since claimant has not established that he sustained a 
 
         permanent functional impairment to the first alleged injury, 
 
         claimant has failed to meet the tests set out in sections 85.63 
 
         through 85.69.  As a consequence, claimant has not established 
 
         any entitlement to benefits from the Second Injury Fund.
 
         
 
                                FINDINGS OF FACT
 
         
 
              WHEREFORE, based on the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              1.  Claimant has no permanent functional impairment to the 
 
         left arm or left ring finger.
 
         
 
              2.  Claimant has no loss of use of the left arm.
 
         
 
                                                
 
                                                         
 
                              CONCLUSION OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
              A.  The Second Injury Fund is not liable for any benefits.
 
         
 
                                   ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from these proceedings.
 
         
 
              Costs of this action are assessed against claimant pursuant 
 
         to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 14th day of July, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            MICHELLE A. McGOVERN
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. H. Edwin Detlie
 
         Attorney at Law
 
         114 N. Market St.
 
         Ottumwa, Iowa  52501
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         111 W. Second St.
 
         P. 0. Box 716
 
         Ottumwa, Iowa  52501
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-3200
 
                                            Filed July 14, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CARL EDWARD NATHANIEL,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         GEORGE A. HORMEL & CO.,                     File No. 811933
 
         
 
              Employer,                           A R B I T R A T I 0 N
 
         
 
         and                                         D E C I S I 0 N
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         5-3200
 
         
 
              Claimant failed to establish any entitlement to benefits 
 
         from the Second Injury Fund.  Claimant was unable to prove any 
 
         permanency because of the alleged first injury.
 
         
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         RALPH K. MCGUIRE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                    File No. 811944
 
         PAGE COUNTY, IOWA,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         FREMONT INDEMNITY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration and for medical benefits 
 
         brought by the claimant, Ralph K. McGuire, against his employer, 
 
         Page County, and its insurance carrier, Fremont Indemnity 
 
         Company, to recover benefits under the Iowa Workers' Compensation 
 
         Act as a result of an injury sustained December 2, 1985.  This 
 
         matter came on for hearing before the undersigned deputy 
 
         industrial commissioner at Council Bluffs, Iowa on December 2, 
 
         1987.  A first report of injury was filed on December 18, 1985.  
 
         The parties stipulated that claimant has received 28 6/7 weeks of 
 
         temporary total disability benefits and 35 weeks of permanent 
 
         partial disability benefits, all of which were paid at the rate 
 
         of $176.73. The record in this case consists of the testimony of 
 
         claimant, of Alfred J. Marchisio, Jr., and of Virginia Stumbo as 
 
         well as of claimant's exhibits 1 through 4 and defendants' 
 
         exhibits A, B, and C.
 
         
 
                                      ISSUES
 
         
 
              Pursuant to the prehearing report, the parties stipulated 
 
         that claimant did receive an injury which arose out of and in the 
 
         course of his employment on the alleged injury date.  The issue 
 
         to be decided is payment for alternate care.  The parties were in 
 
         disagreement as to whether that issue included only the issue of 
 
         payment for past care provided or whether it included a 
 
         subsequent issue and application for future alternate care.
 
         
 
                            REVIEW OF THE EVIDENCE
 
         
 
              Claimant, Ralph K. McGuire, testified that he has gone 
 
         through the tenth grade in school, but is unable to read.  
 
         Claimant was employed as a custodian for Page County when injured 
 
         on December 2, 1985.  He subsequently received treatment from 
 
         John L. Greene, M.D., and James Eaves, M.D.  Claimant was 
 

 
         
 
         
 
         
 
         McGUIRE V. PAGE COUNTY, IOWA
 
         Page   2
 
         
 
         
 
         released for work on July 28, 1986.  He reported that he could 
 
         then "lift a little bit."  Claimant apparently worked from August 
 
         4, 1986 until he was terminated on September 17, 1986.  Claimant 
 
         characterized his termination as having been caused because he 
 
         could not do the work and because he had taken too much time 
 
         off.
 
         
 
              Claimant contacted Virginia Stumbo, workers' compensation 
 
         supervisor with Underwriters Adjusting Company, in December, 
 
         1986.  She told him to continue treating with Dr. Eaves.  
 
         Claimant reported that, as of that time, he could not sit, stand 
 
         or walk comfortably.  Claimant testified that Dr. Eaves told him 
 
         he should receive another doctor's opinion.  Claimant saw James 
 
         Conroy, M.D., and Maurice P. Margules, M.D., in December, 1986.  
 
         Apparently, claimant initially saw Dr. Conroy who then referred 
 
         him to Dr. Margules.  Claimant also retained counsel that month.
 
         
 
              Claimant reported that Dr. Margules performed a series of 
 
         tests and then advised claimant that he had a damaged disc for 
 
         which he needed surgery.  Claimant had surgery on January 2, 
 
         1987.  Claimant agreed he had not notified anyone with Page 
 
         County before that surgery, but stated that, to the best of his 
 
         knowledge, he had notified his counsel before his 
 
         hospitalization.  Claimant agreed he had not personally notified 
 
         defendants and stated he did not believe anyone had notified them 
 
         of his election to have the second surgery.  Claimant stated that 
 
         his counsel was aware of claimant's appointment with Dr. Conroy.  
 
         Claimant stated, however, that he himself did not even know he 
 
         was going into the hospital until after he got there.  Surgery 
 
         was scheduled for three days following the appointment with Dr. 
 
         Margules.  Claimant notified his counsel of the surgery after the 
 
         surgery had been completed.
 
         
 
              Claimant characterized the surgery by Dr. Margules as having 
 
         helped his condition and stated that he was 50% better than he 
 
         had been prior to that surgery.  He stated that he could now 
 
         walk, bend and stoop to some degree.  Claimant was visibly 
 
         uncomfortable at hearing and stood and moved about on occasion 
 
         while testifying.  Claimant reported that he is now working four 
 
         hours per day delivering parts for an auto supply house.  He 
 
         characterized that job as not requiring reading or writing and as 
 
         requiring driving only within a 20-mile radius.  Claimant opined 
 
         that he could not work more than four hours per day.
 
         
 
              Claimant reported that he has had tingling in his left leg 
 
         and hand for approximately the last three or four months and has 
 
         had tingling in his right hand for approximately three weeks.  He 
 
         reported that his back pain is at the belt line and radiates into 
 
         the buttocks over the width of the whole back.
 
         
 
              Alfred J. Marchisio, Jr., a vocational rehabilitation 
 
         counselor and consultant, characterized claimant as having low 
 
         literacy skills.
 
         
 
              Virginia Stumbo testified that she had been a claims 
 
         examiner for the insurance carrier's adjusting company when 
 
         claimant's claim opened.  She understood that Dr. Eaves had 
 
         treated claimant initially and had referred claimant to Dr. 
 
         Greene who had performed a microdiscectomy in March, 1986.  She 
 

 
         
 
         
 
         
 
         McGUIRE V. PAGE COUNTY, IOWA
 
         Page   3
 
         
 
         
 
         testified that the insurer had paid claimant's medical costs 
 
         until termination of his employment for all medical costs 
 
         submitted and had paid claimant for all time off work on account 
 
         of the injury.  She reported that the insurer had paid claimant 
 
         35 weeks of permanent partial disability benefits upon receipt of 
 
         Dr. Greene's permanent partial impairment rating of seven 
 
         percent.  Ms. Stumbo reported that claimant's counsel contacted 
 
         her on December 22, 1986 and that she then authorized an 
 
         independent medical examination with Dr. Margules, but confirmed 
 
         that Dr. Greene remained claimant's treating physician.  She 
 
         indicated that exhibit A, a letter of January 22, 1987 to 
 
         claimant's counsel, was a confirmation of the earlier telephone 
 
         conversation.  She reported that exhibit B, a letter dated 
 
         January 22, 1987 of claimant's counsel to the insurer, informed 
 
         her of claimant's surgery with Dr. Margules of January 2, 1987.  
 
         Ms. Stumbo reported that she subsequently conversed by phone with 
 
         claimant's counsel and again told him that Dr. Greene was the 
 
         treating physician and that care with Dr. Margules was 
 
         unauthorized.
 
         
 
              January 22, 1987 correspondence between Ms. Stumbo and 
 
         claimant's counsel indicates that the letter is a confirmation of 
 
         a phone conversation of December 22, (1986).  The letter advises 
 
         that claimant is entitled to an independent medical examination 
 
         (with Dr. Margules), but that Dr. Greene is the recognized 
 
         treating physician.  Ms. Stumbo also requested a copy of any 
 
         information received from Dr. Margules.  A January 22, 1987 
 
         letter of claimant's counsel to Ms. Stumbo reports that Dr. 
 
         Conroy had referred claimant to Dr. Margules who performed 
 
         surgery in the form of a repeat laminectomy.
 
         
 
              Ms. Stumbo agreed that she had not sent claimant for 
 
         treatment with Dr. Greene after August 7, 1986.  She could not 
 
         recall counsel reporting that claimant could barely walk when she 
 
         spoke with claimant's counsel in December, 1986.  She indicated 
 
         that they had not discussed surgery during that conversation.
 
         
 
              Ms. Stumbo testified that, had the insurer received medical 
 
         reports advising of the need for surgery, the insurer's medical 
 
         consultant would have reviewed such.  She indicated that the 
 
         insurer had no reason to question the accuracy of any medical 
 
         reports or any tests relative to claimant.  Ms. Stumbo advised 
 
         that the insurer would have had no problem with the second 
 
         surgery, had Dr. Greene been able to review claimant's medical 
 
         reports and had Dr. Greene subsequently agreed that another 
 
         surgery was necessary.
 
         
 
              Claimant has $11,115.40 in unpaid medical expenses including 
 
         the following charges:
 
         
 
         
 
              Jennie Edmundson Memorial Hospital    $4,743.10
 
                  December 28, 1986  through January 10, 1987
 
              James Conroy, M.D.                       211.50
 
                  December 26, 1986 through January 10, 1987
 
              Medical Anesthesia Assoc.                550.00
 
                   December 29, 1986 through January  2, 1987
 
              Maurice Margules, M.D.                 3,690.00
 
                  December 28, 1986 through August 3, 1987
 

 
         
 
         
 
         
 
         McGUIRE V. PAGE COUNTY, IOWA
 
         Page   4
 
         
 
         
 
              Clarinda Memorial Hospital             1,085.80
 
                  March 12, 1987 through March 17, 1987
 
               Clarinda Memorial Hospital               16.00
 
                  March 25, 1987
 
              Jennie Edmundson Memorial Hospital       775.00
 
                  April 17, 1987
 
              James E. Eaves, M.D.                      44.00
 
                  April 21, 1987 through April 22, 1987
 
         
 
         
 
              The March 25, 1987 charge with Clarinda Memorial Hospital 
 
         was designated as "PT"; the April 17, 1987 Jennie Edmundson 
 
         Hospital charge was designated as "MRI."  The evidence as a whole 
 
         reveals that charges submitted related to claimant's treatment 
 
         with Drs.  Conroy and Margules.
 
         
 
              On July 9, 1986, Dr. Eaves reported that claimant had not 
 
         responded well following surgery and that he had discussed such 
 
         with Dr. Greene and the head of the pain center at the University 
 
         of Nebraska Medical School.  He reported that, based upon the 
 
         recommendations of apparently the pain center, Dr. Eaves would 
 
         not recommend that claimant return to work.  Dr. Eaves further 
 
         recommended that claimant be evaluated at the pain center if the 
 
         insurer so agreed and that he be retrained.
 
         
 
              On July 25, 1986, Dr. Greene of Neurological Surgery, Inc., 
 
         reported that he had seen claimant on July 21, 1986 with 
 
         complaints of low back pain and left lower extremity pain.  Dr. 
 
         Greene reported that, upon examination, claimant walked with a 
 
         limp, but had no muscle spasm and straight leg raising tests were 
 
         negative.  He reported that claimant had no neurological 
 
         findings, but had good motor strength with deep tendon reflexes 
 
         and good sensation.  An EMG of the left lower extremity was 
 
         normal and a CT scan of the lumbar spine was much better than 
 
         pre-operatively with x-rays of the lumbar spine showing no 
 
         evidence of disc space.  The doctor stated that he "would not 
 
         expect the CAT scan findings to completely disappear.  There is 
 
         always going to be some bulging of the annulus.  However, I don't 
 
         think this is significant.  I cannot explain (claimant's) 
 
         symptoms on a discogenic basis.O
 
         
 
              On January 13, 1987, Dr. Conroy, who is board-certified in 
 
         internal medicine, reported that examination of claimant showed 
 
         loss of pin prick sensation over the lateral surface of his left 
 
         leg in a typical dermatone distribution as well as diminished 
 
         deep tendon reflexes indicative of nerve root injury on that 
 
         side.  The doctor reported that magnetic resonance image scan 
 
         (MRI) was consistent with persistent bulging of disc material in 
 
         the L5,Sl interspace and that claimant, therefore, was referred 
 
         to Dr. Margules who did additional studies and who eventually 
 
         performed a repeat laminectomy.  The doctor further reported that 
 
         claimant had some co-existent medical problems including features 
 
         of a peptic ulcer and mild reactive depression secondary to the 
 
         year-long distress and disability.
 
         
 
              J. Huddle, M.D., interpreted a CT scan of December 29, 1986 
 
         as revealing minimal bulging posteriorally to the left at the 
 
         L5-Sl disc with such causing a mild degree of foraminal stenosis 
 
         and mild stenosis on that side, but with no significant defect 
 

 
         
 
         
 
         
 
         McGUIRE V. PAGE COUNTY, IOWA
 
         Page   5
 
         
 
         
 
         seen against the spinal canal.  Nerve roots appeared to be in 
 
         normal position.
 
         
 
              An operative report of Dr. Margules of January 4, 1987 
 
         indicated that the L5-Sl disc was found to be compressing the Sl 
 
         root.  The disc was incised and a large amount of disc tissue 
 
         including two large necrotic fragments were removed.  After the 
 
         disc space had been cleaned of its disc material, no evidence of 
 
         disc material was found in the epidural space.  The root was 
 
         exposed and free of compression.
 
         
 
              In a discharge summary of January 10, 1987, Dr. Margules 
 
         reported claimant's pain as strictly radicular in type and 
 
         involving only the left lower extremity, described as the left 
 
         gluteal region, posterior aspect of the left thigh, and left 
 
         lower leg with paresthesia in the lateral aspect of the left 
 
         lower leg.  He reported that there was no involvement of the 
 
         right lower extremity and no involvement of the upper 
 
         extremities.  The doctor further reported that EMG studies and 
 
         nerve conduction studies of the left lower extremity were normal.  
 
         Myeloradiculography did not show evidence of abnormal findings.  
 
         The doctor reported that surgery was performed on the basis of 
 
         claimant's history, clinical findings of Sl root involvement and 
 
         CT scan studies.
 
         
 
              On September 23, 1987, Dr. Margules opined that claimant had 
 
         reached maximum medical improvement and that further treatment 
 
         could not be recommended.  He also assigned a permanent partial 
 
         Ophysical disability" rating.
 
         
 
              On November 1, 1987, Dr. Conroy reported that claimant had 
 
         returned to the office reporting perhaps 50% relief of left leg 
 
         symptoms, although still having some element of back pain and 
 
         painful paresthesia in the left leg.  Claimant's complaints were 
 
         then reported as including severe headaches, especially on the 
 
         right side, and left arm numbness which claimant related 
 
         chronologically back to the accident.  MRI scan did not reveal 
 
         cervical disc herniation or bony encroachment on nerve roots.  
 
         The head study did not show tumor, blood clot, or other 
 
         conditions which would account for claimant's complaints.  
 
         Elements of chronic sinusitis were present, but the doctor did 
 
         not relate them to claimant's headaches.  The doctor reported 
 
         that claimant was obviously depressed and needed supportive care, 
 
         counseling, and vocational rehabilitation.  Examination notes 
 
         indicate that claimant's severe headaches had been ongoing for 
 
         three or four months and were mostly in the right occipital 
 
         region, although to some degree in the right temporal region.  On 
 
         physical examination, claimant's neck was stiff to rotation and 
 
         he could tolerate only approximately one-half of normal rotation 
 
         and range of motion.  Neurological examination of the upper 
 
         extremities was normal with normal hand grasp and deep tendon 
 
         reflexes.  Claimant had some stiffness to forward flexion 
 
         involving his lower back.  Babinski's were down going.
 
         
 
              Dr. Margules testified by way of his deposition taken July 
 
         29, 1987.  The doctor is a neurological surgeon.  Dr. Margules 
 
         reported that claimant's history was of a microdiscectomy 
 
         performed followed by partial relief of pain for approximately 30 
 
         days and then return of pain unchanged with severe radicular pain 
 

 
         
 
         
 
         
 
         McGUIRE V. PAGE COUNTY, IOWA
 
         Page   6
 
         
 
         
 
         in the left lower extremity present continuously.  The doctor 
 
         indicated that claimant displayed a lot of problems and was 
 
         unable to really extend and flex his left lower leg.  He reported 
 
         that claimant undressed with great difficulty, walked with great 
 
         difficulty and had great difficulty in keeping his left leg 
 
         extended, stating that pressure on the lower extremity caused 
 
         pain in his lumbar region and left leg.
 
         
 
              Dr. Margules characterized claimant's as a difficult case in 
 
         that paraclinical findings were normal as to the myelography, but 
 
         abnormal as to MRI and CT scan, confirming that there was 
 
         compression of the Sl root.  The doctor stated that using those 
 
         in conjunction with the history and clinical findings and 
 
         claimant's obvious great difficulty, the doctor concluded that 
 
         claimant had residual disc tissue and compression of his nerve 
 
         root.  He reported that two options were available:  "One was to 
 
         forget about it, do nothing and send him home, or surgically 
 
         explore and try to decompress the root."  The doctor stated that 
 
         he saw no reason to think claimant would get better by himself in 
 
         December, 1986 as claimant had had a course of progressive 
 
         deterioration since March, 1986.  Dr. Margules described claimant 
 
         as somewhat despondent about his condition, stating claimant 
 
         "felt that he saw no areas for him, that he was hurting, that was 
 
         his main obsession, that he was hurting and something had to be 
 
         done for his pain.  It was very difficult to have a logical 
 
         discussion with him."
 
         
 
              The doctor reported that he found a large amount of tissue 
 

 
         
 
         
 
         
 
         McGUIRE V. PAGE COUNTY, IOWA
 
         Page   7
 
         
 
         
 
         left in the interspace compressing the root, including two large 
 
         fragments.  He characterized such as normal because claimant had 
 
         had a microdiscectomy before with a small disc removed during 
 
         that procedure.
 
         
 
              Dr. Margules opined that claimant's July 23, 1986 CT scan 
 
         probably reported essentially the same thing as his December 29, 
 
         1986 CT scan.  The doctor characterized as correct the statement 
 
         that Dr. Greene had gone in and was able to exercise 50% of 
 
         claimant's bulge at the disc and that he, Dr. Margules, had 
 
         removed as much as possible of the remaining 50%.
 
         
 
              Dr. Margules, as of the time of deposition, had seen 
 
         claimant on four occasions since his surgery.  He reported that 
 
         claimant had improved in that he did not have continuous, 
 
         relentless pain in his left leg, but had some residual pain in 
 
         his lumbar region, also felt to be definitely, markedly better.  
 
         The doctor reported he still has some difficulties with claimant 
 
         in discussing things on a very logical basis, but that that had 
 
         something to do with his level of education, with his 
 
         understanding of things.  The doctor reported that claimant would 
 
         likely improve, but that his course of recovery would be 
 
         approximately two years following the date of surgery.
 
         
 
              The doctor characterized fees for his services as fair and 
 
         reasonable in keeping with services of physicians in his medical 
 
         specialty in the city of Council Bluffs.  At hearing, the parties 
 
         had stipulated that providers of medical services would so 
 
         testify and that defendants would not offer contrary evidence.
 
         
 
              Dr. Margules indicated that Dr. Eaves had admitted claimant 
 
         to the Clarinda Hospital in March, 1987 when claimant "had a 
 
         problem when he was using the bathroom and had an increase in his 
 
         symptoms."
 
         
 
              Dr. Margules subsequently stated that, from observation of 
 
         claimant over the week that he was (hospitalized) he felt 
 
         claimant was a man of moderate intellectual ability and low level 
 
         of education, and therefore, that was the main part of his 
 
         problem.  He did not think claimant had any pathological 
 
         psychiatric trait.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Our first concern is whether claimant is entitled to payment 
 
         for past care received from or at the direction of Drs. Eaves, 
 
         Conroy, and Margules.
 
         
 
              Section 85.27 provides that the employer, for all 
 
         compensable injuries, shall furnish reasonable surgical, medical, 
 
         physical rehabilitation, nursing, and hospital services and 
 
         supplies.  The employer has the right to choose the care.  
 
         Treatment must be offered promptly and be reasonable suited to 
 
         treat the injury without undue inconvenience to the employee.  If 
 
         the employee is dissatisfied with the care offered, the employee 
 
         is to communicate the basis of that dissatisfaction to the 
 
         employer.  If the employer and employee cannot agree on alternate 
 
         care, application is to be made to the commissioner.  In an 
 
         emergency, the employee may chose the employee's care provided 
 

 
         
 
         
 
         
 
         McGUIRE V. PAGE COUNTY, IOWA
 
         Page   8
 
         
 
         
 
         the employer or the employer's agent cannot be reached 
 
         immediately.
 
         
 
              The employer has the duty to monitor the treatment being 
 
         provided.  Zimmerman v. L. L. Palling Co., Inc., II Iowa 
 
         Industrial Commissioner Report, 462 (App. Decn. 1982).
 
         
 
              An authorized physician's referral to another physician is 
 
         routinely found to be authorized.  Limoges v. Meier Auto Salvage, 
 
         I Iowa Industrial Commissioner Report, 207 (1981).
 
         
 
              Where evidence in the record reveals claimantOs condition 
 
         improves as a result of care provided by a physician whom the 
 
         employer did not authorize, that improvement not only helps 
 
         claimant, but may also mitigate the employer's ultimate 
 
         liability.  That mitigation, when considered with other relevant 
 
         factors, may result in a finding that the nonauthorized care was 
 
         reasonable and necessary treatment as contemplated by section 
 
         85.27.  Rittgers v. United Parcel Service, III Iowa Industrial 
 
         Commissioner Report, 210, 213 (1983).
 
         
 
              The California case of Zeeb v. Workmen's Compensation 
 
         --Appeals Board, 62 California Report 753, 432 P.2d 361 (1976) 
 
         discusses the philosophy behind charging the employer with 
 
         responsibility for providing medical care.  The opinion states at 
 
         364:
 
         
 
              It will ordinarily be in the interest of both the 
 
              employer and the employee to secure adequate medical 
 
              treatment so the employee may recover from his injury 
 
              and return to work as soon as possible.  Permitting the 
 
              employer to control the medical treatment permits the 
 
              employer, who has the burden to provide the medical 
 
              treatment, to minimize the danger of unnecessary 
 
              extravagant treatment, and in light of the employer's 
 
              interest in speedy recovery, the employer's control 
 
              should rarely result in a denial of necessary 
 
              treatment.
 
         
 
              Both claimant and Ms. Stumbo agree that, when Ms. Stumbo 
 
         spoke with claimant in December, 1986, she directed him to . 
 
         return to Dr. Eaves for treatment.  Dr. Eaves directed claimant 
 
         to see another physician.  It was at that point that claimant saw 
 
         Dr. Conroy, who subsequently referred claimant to Dr. Margules.  
 
         Claimant has low literacy skills and it was apparent at hearing 
 
         that claimant has difficulty thinking abstractly.  Under those 
 
         circumstances, it was not unreasonable for claimant to assume 
 
         that he could accept treatment from Drs. Conroy and Margules as 
 
         Dr. Eaves, with whom he was authorized to treat, had advised him 
 
         to see another doctor.  Defendants do not appear to have 
 
         appropriately monitored claimant's medical care beyond his work 
 
         termination.  Claimant's lack of sophistication is readily 
 
         apparent, such that it is reasonable to surmise that it could 
 
         have been gleaned even in the course of a telephone conversation.  
 
         Under those circumstances, if defendants had not intended that 
 
         claimant be permitted to seek other care if Dr. Eaves so advised, 
 
         that should have been clearly stated to claimant in the December, 
 
         1986 telephone conversation.  Nothing in this record suggests 
 
         that that was so.  While Ms. Stumbo testified that claimant did 
 

 
         
 
         
 
         
 
         McGUIRE V. PAGE COUNTY, IOWA
 
         Page   9
 
         
 
         
 
         not discuss surgery in the December, 1986 conversation, claimant 
 
         apparently did discuss medical care.  Defendants had a duty to 
 
         clearly advise claimant regarding such and clearly state at 
 
         claimant's level of understanding the care that would or would 
 
         not be considered authorized care.  As claimant acted reasonably 
 
         in seeing Dr. Conroy upon Dr. Eaves' direction and in seeing Dr. 
 
         Margules upon Dr. Conroy's direction, care and services provided 
 
         by those physicians or under their direction were authorized and 
 
         will be compensated.  The record reviewed as a whole supports 
 
         claimant's contention that all services for which he seeks 
 
         compensation, including physical therapy services and his March, 
 
         1987 and April, 1987 costs at Clarinda and Jennie Edmundson 
 
         Memorial Hospital, were within the purview of services Drs.  
 
         Conroy and Margules provided or directed.  Costs with Dr. Eaves, 
 
         of course, are compensable since defendants had advised claimant 
 
         that he could treat with that physician.
 
         
 
              We note that, on January 22, 1987, Ms. Stumbo advised 
 
         claimant's counsel that care by Dr. Margules, beyond an 
 
         independent medical exam, would not be authorized.  That letter 
 
         is reportedly a confirmation of Ms. StumboOs December 22, 1986 
 
         telephone conversation with claimant's counsel in which she 
 
         stated she advised counsel that independent medical examination 
 
         alone by Dr. Margules was authorized.  We find the letter 
 
         noncompelling in that a full month lapsed between the 
 
         testified-to phone conversation and the letter.  Primary medical 
 
         treatment, that being claimant's surgery, had been provided in 
 
         the meantime.  Had defendants wished to advise claimant to not 
 
         seek treatment on a timely basis, such a lapse likely would not 
 
         have occurred.
 
              
 
              Further, claimant has improved following Dr. Margules' 
 
         surgery and Drs. Margules' and Conroy's subsequent treatment.  
 
         Claimant describes himself as approximately 50% better in terms 
 
         of back and leg pain and medical records support such.  Dr. 
 
         Margules indicated that claimant's condition had deteriorated and 
 
         not improved following his microdiscectomy with Dr. Greene in 
 
         April, 1986.  Defendants will likely receive the benefit of 
 
         claimant's improved condition by way of a decrease in their 
 
         ultimate liability on account of claimant's injury.  Hence, for 
 
         that reason also, the unauthorized treatment is found to have 
 
         been reasonable and necessary treatment as contemplated,by 
 
         section 85.27.
 
         
 
              We consider the issue of whether further alternate care 
 
         should be authorized.
 
         
 
              Defendants argue that claimant's application for alternate 
 
         care should not be addressed.  The application was filed on 
 
         November 5, 1987 and a supplemental application was filed on 
 
         November 9, 1987.  This matter was pre-heard on November 13, 
 
         1987.  While notice as to the application for alternate care may 
 
         have been less than under some circumstances, defendants cannot 
 
         say they did not have notice of the application prior to hearing 
 
         in this matter.  At any rate, any such defense should have been 
 
         raised at the time of the pre-hearing conference and not at time 
 
         of hearing.  The pre-hearing assignment order indicates that the 
 
         issue is section 85.27 care and does not designate that such 
 
         relates only to past care.  For the above reasons, the 
 
         application will be considered at this time.  The law as stated 
 

 
         
 
         
 
         
 
         McGUIRE V. PAGE COUNTY, IOWA
 
         Page  10
 
         
 
         
 
         above is applicable.
 
         
 
              Claimant apparently seeks care for present complaints of 
 
         continuing low back and left leg pain as well as complaints of 
 
         headache and numbness and tingling in his left and right upper 
 
         extremities and feelings of despondency and depression.  Dr. 
 
         Margules, on September 23, 1987, released claimant, indicating he 
 
         had reached maximum medical improvement, and did not recommend 
 
         further treatment.  Dr. Conroy, on November 1, 1987, stated that 
 
         claimant had headache and left arm numbness which claimant 
 
         chronologically related to his injury.  In his discharge summary 
 
         of January 10, 1987, however, Dr. Margules had emphatically 
 
         stated that claimant's symptoms were radicular symptoms related 
 
         to the left lower extremity only and not involving either the 
 
         right lower extremity or either upper extremity.  Hence, Dr. 
 
         Conroy's history in November, 1987 is inconsistent with that of 
 
         Dr. Margules of January, 1987.  Claimant himself, at hearing, 
 
         testified that his left upper extremity problems had been present 
 
         only for approximately three or four months and that his right 
 
         upper extremity problems had been present only for approximately 
 
         three or four weeks.  Given the above, such problems cannot be 
 
         related to claimant's work injury and treatment for such will not 
 
         be authorized.  As Dr. Margules has indicated that further 
 
         treatment for claimant's back and left lower extremity condition 
 
         is not recommended, further treatment and alternate care for such 
 
         is not authorized.  Claimant, of course, remains free to seek 
 
         care as needed for that condition from authorized physicians, 
 
         understood to be Drs. Eaves and Greene.
 
         
 
              Both Dr. Conroy and Dr. Margules have opined over extended 
 
         time that claimant was despondent or depressed.  Dr. Conroy 
 
         related those conditions to claimant's work injury related 
 
         disability.  Depression is a recognized medical condition.  As it 
 
         has been related to claimant's compensable work injury, 
 
         defendants are required to provide suitable care for such.  In 
 
         his application, claimant has expressed a preference for such 
 
         treatment with Dr. David Winsor.  Dr. Winsor is identified as a 
 
         psychiatrist-internist.  It is well recognized that the rapport 
 
         between the patient and the physician is of particular import in 
 
         producing efficacious treatment for mental disorders.  Given 
 
         claimant's expressed preference for treatment with Dr. Winsor, 
 
         treatment with that practitioner would likely have a higher 
 
         degree of success than would treatment with a physician of the 
 
         employer's choice.  As stated above, defendants will ultimately 
 
         benefit from any amelioration of claimant's condition.  For the 
 
         above reasons, claimant is authorized to seek care for his 
 
         depressive condition with Dr. Winsor.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              WHEREFORE, IT IS FOUND:
 
         
 
              Claimant has completed tenth grade and has low literacy 
 
         skills.
 
         
 
              Claimant was employed as a custodian for Page County until 
 
         he received an injury arising out of and in the course of his 
 
         employment on December 2, 1985.
 
         
 

 
         
 
         
 
         
 
         McGUIRE V. PAGE COUNTY, IOWA
 
         Page  11
 
         
 
         
 
              Claimant subsequently received treatment with John L. 
 
         Greene, M.D., and James Eaves, M.D.
 
         
 
              Claimant was released for work on July 28, 1986.
 
         
 
              Claimant worked from August 4, 1986 until terminated on 
 
         September 17, 1986.
 
         
 
              The insurer's adjusting company paid claimant's medical 
 
         costs to his September, 1986 termination.
 
         
 
              A representative of the insurer's adjusting company advised 
 
         claimant in December, 1986 that claimant was to continue treating 
 
         with Dr. Eaves.
 
         
 
              Claimant subsequently saw Dr. Eaves who told claimant that 
 
         he should receive another doctor's opinion.
 
         
 
              Claimant subsequently saw James Conroy, M.D., who referred 
 
         him to Maurice Margules, M.D.
 
         
 
              Dr. Margules subsequently performed a laminectomy on January 
 
         2, 1987.
 
         
 
              Dr. Greene had performed a microdiscectomy in March or 
 
         April, 1986.
 
         
 
              Claimant is approximately 50% better in his low back and leg 
 

 
         
 
         
 
         
 
         McGUIRE V. PAGE COUNTY, IOWA
 
         Page  12
 
         
 
         
 
         pain subsequent to the laminectomy performed by Dr. Margules.
 
         
 
              The lamenictomy performed by Dr. Margules and related 
 
         services of Dr. Margules and Dr. Conroy, as well as support 
 
         practitioners, were reasonable and necessary care.
 
         
 
              On September 13, 1987, claimant had reached maximum medical 
 
         improvement as regards his low back and left lower extremity 
 
         condition.
 
         
 
              As of September 13, 1987, further treatment for the low back 
 
         and left lower extremity condition was not recommended.
 
         
 
              On November 1, 1987, claimant had complaints of left upper 
 
         extremity numbness and headache.
 
         
 
              As of hearing, claimant had complaints of right upper 
 
         extremity numbness and tingling as well as left upper extremity 
 
         numbness and tingling.
 
         
 
              Claimant's left upper extremity numbness and tingling had 
 
         had its onset within three or four months of hearing; his right 
 
         upper extremity numbness and tingling had had its onset within 
 
         three or four weeks of hearing.
 
         
 
              Claimant's complaints of headache, numbness and tingling in 
 
         his upper extremities do not relate to his work injury.
 
         
 
              Treatment with Dr. Conroy or Dr. Margules for such 
 
         conditions would not be reasonable and necessary treatment for 
 
         claimant's work injury.
 
         
 
              Claimant has had complaints of depression and despondency 
 
         documented throughout medical reports of Drs. Conroy and 
 
         Margules.
 
         
 
              Claimant's complaints of depression and despondency relate 
 
         back to his work injury and his subsequent disability.
 
         
 
              Treatment for claimant's depression is reasonable and 
 
         necessary treatment related to claimant's work injury.
 
         
 
              Claimant wishes treatment with Dr. David Winsor, a 
 
         psychiatrist-internist.
 
         
 
              Patient-physician rapport is an important factor in 
 
         treatment of mental conditions.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              THEREFORE, IT IS CONCLUDED:
 
         
 
              Claimant is entitled to payment of costs of medical 
 
         treatment related to services provided by Drs. Margules and 
 
         Conroy and for services provided by Dr. Eaves.  Costs for which 
 
         claimant is entitled to payment are as set forth in the above 
 
         review of the evidence.
 
         
 
              Claimant is not entitled to further treatment with Drs. 
 

 
         
 
         
 
         
 
         McGUIRE V. PAGE COUNTY, IOWA
 
         Page  13
 
         
 
         
 
         Margules or Conroy for his left lower extremity, low back or 
 
         upper extremity complaints or for his headache.
 
         
 
              Claimant is entitled to treatment with Dr. David Winsor for 
 
         his depressive condition.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants pay claimant's medical costs as set forth in the 
 
         above review of tho evidence.
 
         
 
              Defendants provide claimant with treatment with Dr. David 
 
         Winsor as necessary for proper resolution of claimant's 
 
         depressive disorder.
 
         
 
              Defendants pay interest pursuant to Iowa Code section 85.30 
 
         as amended.
 
         
 
              Defendants pay costs of this proceeding pursuant to Division 
 
         of Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 19th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                          HELEN JEAN WALLESER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Peter J. Peters
 
         Attorney at Law
 
         233 Pearl Street
 
         P.O. Box 938
 
         Council Bluffs, Iowa 51502
 
         
 
         Mr. Jon K. Swanson
 
         Attorney at Law
 
         900 Des Moines Building
 
         Des Moines, Iowa 50309
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 2500, 2700
 
                                                 Filed February 19, 1988
 
                                                 HELEN JEAN WALLESER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         RALPH K. MCGUIRE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     File No. 811944
 
         PAGE COUNTY, IOWA,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                     D E C I S I 0 N
 
         and
 
         
 
         FREMONT INDEMNITY COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         2500, 2700
 
         
 
              Claimant's treatment, upon advise of authorized physician 
 
         that claimant see another doctor, found compensable.
 
         
 
              Claimant permitted alternate care with psychiatrist of his 
 
         choice for work injury related depressive disorder.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     
 
                 BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEITH MOORE,
 
         
 
              Claimant,                               File No. 812059
 
         
 
         vs.                                       A R B I T R A T I O N
 
         
 
         CLOW CORPORATION,                            D E C I S I O N
 
         
 
              Employer,                                  F I L E D
 
         
 
         and                                            MAY 05 1989
 
         
 
         ROYAL INSURANCE COMPANY,                   INDUSTRIAL SERVICES
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Keith Moore, 
 
         claimant, against Clow Corporation, employer, and Royal Insurance 
 
         Company, insurance carrier, defendants for benefits as the result 
 
         of an injury that occurred on September 27, 1985.  A hearing was 
 
         held in Des Moines, Iowa, on March 24, 1989 and the case was 
 
         fully submitted at the close of the hearing.  The record consists 
 
         of the testimony of Keith Moore, claimant, and Tom Holmberg, 
 
         industrial relations manager, and joint exhibits 1 through 17.  
 
         Both attorneys submitted outstanding briefs.  The deputy ordered 
 
         a transcript of the hearing.
 
         
 
                                 STIPULATIONS
 
         
 
              The parties stipulated to employer-employee relationship; 
 
         injury arising out of and in the course of employment on 
 
         September 27, 1985; that claimant had been paid temporary 
 
         disability benefits from November 25, 1985 to December 2, 1985, 
 
         April 29, 1986 to May 4, 1986, and July 12, 1986 to March 20, 
 
         1987 and that temporary disability benefits are no longer a 
 
         disputed issue in this case; that the injury was the cause of 
 
         permanent disability; that the type of permanent disability is 
 
         industrial disability to the body as a whole; that the 
 
         commencement date for permanent partial disability benefits would 
 
         be March 21, 1987; that the proper rate of compensation is 
 
         $364.76 per week; that claimant's medical expenses have been or 
 
         will be paid by defendants; that defendants make no claim for 
 
         nonoccupational group health plan benefits paid prior to hearing; 
 
         that defendants are entitled to a credit for 50 weeks of 
 
         permanent partial disability benefits paid prior to hearing at 
 
         the rate of $364.76 per week; that there are no bifurcated 
 
         claims.
 
                                                
 
                                                         
 
         
 
                                  ISSUES
 
         
 
              The sole issue submitted for determination is whether 
 
         claimant is entitled to permanent disability benefits, and if so, 
 
         the extent of benefits to which claimant is entitled.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              Of all the evidence that was introduced, the following is a 
 
         summary of the evidence most pertinent to this decision.
 
         
 
              Claimant is 39 years old.  He is a high school graduate who 
 
         received average grades.  He did better in manual arts such as 
 
         shop, auto mechanics and drafting.  English and science were more 
 
         difficult subjects.  Claimant had no formal education after high 
 
         school and did not serve in the armed forces.  His chief past 
 
         employment was building windows for Rolscreen in Pella for one 
 
         year.
 
         
 
              Claimant testified that the Clow Corporation makes fire 
 
         hydrants and valves for water systems.  He said that he started 
 
         to work for employer on April 17, 1969 in the brass foundry 
 
         chipping and grinding off seams and parting lines.  He said that 
 
         he worked in the brass foundry for 15 of his 19 years with 
 
         employer.  He also worked one year in the iron foundry and he 
 
         worked in and out of the core room for approximately four years.  
 
         Claimant related that he was a supervisor for approximately six 
 
         months, but returned to production work because he could earn 
 
         more money doing piecework because of the piece rate incentive 
 
         (transcript, pages 10-20).
 
         
 
              Claimant told that he was injured on September 27, 1985 while 
 
         pouring and shifting weights and jackets in the melt department of 
 
         the brass foundry.  The jackets are steel sleeve molds that weigh 
 
         up to 60 pounds.  The weights are placed on the mold and they 
 
         weigh approximately 20 pounds.  At the time of this injury 
 
         claimant felt pain in his back, reported it to his supervisor and 
 
         asked to see a doctor because of his prior back problems.  
 
         Claimant said that he was earning $8.52 per hour, but with 
 
         piecework, his earnings were close to $16.00 per hour.  Claimant 
 
         acknowledged that he had previously suffered low back problems in 
 
         the 1975/1976 and 1978/1979 time frames.  He alleged that he had 
 
         not had any further trouble after 1979 until his injury which 
 
         occurred on September 27, 1985.  Claimant testified that he saw a 
 
         number of doctors. Eventually, surgery was performed by William 
 
         Boulden, M.D., an orthopaedic surgeon, on December 15, 1986 
 
         (transcript, pages 20-24).
 
         
 
              Claimant said that he was off work after the surgery for 
 
         approximately two and one-half months.  He said that he returned 
 
         to work in March or April of 1987.  He performed light duty for 
 
         approximately two days.  He was assigned to drive the forklift 
 
         for approximately two days.  The fork truck job aggravated his 
 
         back and he then became a core maker.  Dr. Boulden did not tell 
 
                                                
 
                                                         
 
         him that he could not go back to chipping and grinding, but he 
 
         recommended that claimant not do it.  Furthermore, there had been 
 
         a cutback in the brass foundry and two people that had more 
 
         seniority were ahead of him for chipping and grinding work.  
 
         There was one position as a floater, but in this job you might be 
 
         chipping or grinding or one day you might be doing stuff that 
 
         weighs ounces and the next day you may be doing something that 
 
         weighs as much 100 pounds.. The core maker job involves weights 
 
         of approximately eight pounds.  With the piece rate incentive, 
 
         claimant said he could earn approximately $12.00 per hour as a 
 
         core maker.  Claimant testified that he performed the core maker 
 
         job for approximately two months from late March or April of 1987 
 
         until May 7, 1987 at which time claimant went out on strike and 
 
         has never returned to work for this employer.  On August 15, 
 
         1988, claimant's union was decertified.  After the 
 
         decertification, the foundry work took a cut of approximately 
 
         $5.00-$6.00 per hour on incentive pay (transcript, pages 24-32, 
 
         55-58).
 
         
 
              Claimant testified that he has applied for numerous jobs in 
 
         foundries and factories since he left employer.  He testified 
 
         that he admitted on the application forms he had a workers' 
 
         compensation claim and that he was never contacted by these 
 
         employers.  He said that some of the employers were not taking 
 
         applications.  One prospective employer.rejected him due to his 
 
         surgery (transcript, pages 28-45).
 
         
 
              At the time of the hearing, claimant was employed for 
 
         approximately 10-25 hours per week in the occupation of selling 
 
         used cars for a ten percent commission.  The most he has earned 
 
         doing this job was $500.00 one month and the least that he has 
 
         earned was $60.00 in one month.  Claimant stated that he was 
 
         continuing to make job applications at other places (transcript, 
 
         pages 45-48).  His employer for used cars is a dear and close 
 
         friend (transcript, page 62).
 
         
 
              Claimant testified that currently his back still flares up. 
 
         He still has numbness in his left leg down to his foot which has 
 
         been there since 1985.  His pain seems to vary with the amount of 
 
         stress in his life.  Claimant testified that he no longer hunts, 
 
         mows the grass or works on his car (transcript, pages 49 and 
 
         50).
 
         
 
              Claimant testified that he last saw Dr. Boulden in March of 
 
         1988, approximately one year before this hearing, and that he has 
 
         not seen a doctor for any treatment since that time.  The left 
 
         leg numbness is more prominent than the back pain.  Aspirin 
 
         relieves the back pain in most cases.  The left leg is functional 
 
         (transcript, pages 52-55).
 
         
 
              Claimant reiterated that employer was good about helping 
 
         injured employees get back to work in work they could do.  
 
         Employer offered him several jobs and he chose the core machine 
 
         job (transcript, pages 55 and 56).
 
         
 
                                                
 
                                                         
 
              Claimant acknowledged that after the decertification, some 
 
         employees have returned to work for employer, but that he 
 
         personally had not chosen to do so (transcript, pages 58 and 59). 
 
         Claimant conceded that he told the prospective employers where he 
 
         had applied for work that his last employment ended due to a 
 
         labor dispute.  He further stated that, if he had been asked, he 
 
         would have admitted that he would return to Clow if and when the 
 
         union matter was settled because he had 19 years of employment 
 
         there (transcript, pages 59-61).
 
         
 
              Tom Holmberg testified that he has been the industrial 
 
         relations manager for employer for 14 years.  He verified that 
 
         there was a work stoppage on May 7, 1987 and that the union was 
 
         decertified in August of 1988.  The foundry then began to operate 
 
         in September of 1988.  All striking employees, including 
 
         claimant, were sent a written communication in which employer 
 
         made an offer to them to return to their former jobs.  Holmberg 
 
         testified that employer has been hiring qualified employees, but 
 
         that claimant had not applied for a job.  Holmberg stated that 
 
         employer would hire claimant if he applied for a job (transcript, 
 
         pages 65-72). He said that the core maker job paid $8.82 per hour 
 
         before the strike and $6.79 per hour after the strike.  With the 
 
         piece rate incentive, a core maker could earn approximately 
 
         $12.00 per hour before the strike and approximately $7.75 per 
 
         hour after the strike (transcript, pages 72-75).  A brass foundry 
 
 
 
                           
 
                                                         
 
         job would have declined in earnings from approximately $16.00 per 
 
         hour before the strike to approximately $7.00 per hour after the 
 
         strike (transcript, pages 72-76).
 
         
 
              The medical evidence shows that claimant has had a long and 
 
         difficult history with his back.  Claimant fell on the sidewalk 
 
         and injured his right hip on September 15, 1961 (exhibit 1, page 
 
         2; exhibit 2, page 1).  On January 7, 1974, he experienced pain 
 
         in his lower back while lifting a mold (exhibit 1, page 2).  
 
         Claimant testified that he encountered problems in the 1975/1976 
 
         time frame.  Claimant had severe episodes in 1978 and 1979 which 
 
         required hospitalization, myelogram, extensive treatment and some 
 
         time off work (exhibit 1, pages 5-7; exhibit 2, pages 5-13; 
 
         exhibit 4; exhibit 5; exhibit 6; exhibit 7).  Claimant's back 
 
         condition and the medical treatment for it prior to September 27, 
 
         1985 are very carefully detailed by claimant's attorney in his 
 
         brief (claimant's brief, pages 3 and 4).  Claimant testified that 
 
         he did not have any back problems after 1979 until this injury 
 
         which occurred on September 27, 1985.
 
         
 
              When claimant experienced back pain on September 27, 1985, 
 
         he was treated by his family physician, Randall C. Hart, D.O., 
 
         but not until November 18, 1985.  The reason for the delay in 
 
         treatment was not explained in the testimony.  Dr. Hart diagnosed 
 
         sciatica with left leg numbness (exhibit 1, page 9).  Claimant 
 
         returned to work on December 2, 1985 with a weight restriction of 
 
         50 pounds and a restriction of no repetitive bending at the waist 
 
         (exhibit 1, page 10).  On December 16, 1985, claimant saw Marc E. 
 
         Hines, M.D., a neurologist.  Claimant's EMG's were abnormal, but 
 
         Dr. Hines said it is difficult to correlate the accident with 
 
         this abnormality on EMG.  Dr. Hines stated:
 
         
 
              The only way in which I can relate this to his accident is 
 
              that through the stress of being ill, he has become prone to 
 
              viral brachial plexopathy.
 
         
 
         (Exhibit 8, page 4)
 
         
 
              Claimant was also examined and evaluated by Thomas Summers, 
 
         M.D., on January 13, 1986.  Dr. Summers found no evidence of 
 
         neurologic or orthopaedic defect.  He suspected mild myofascial 
 
         strain and saw no reason for definitive treatment or therapy 
 
         (exhibit 9).
 
         
 
              Claimant first saw Dr. Boulden on February 4, 1986.  Lumbar 
 
         spine films showed significant disc space narrowing at L5,S1.  
 
         Dr. Boulden's impression was degenerative disc disease L5,S1 
 
         probably causing some early spinal stenosis (exhibit 10, page 1).  
 
         A CAT scan on April 28, 1986 verified foraminal stenosis at L5,S1 
 
         (exhibit 10, page 2).
 
         
 
              On May 15, 1986, Dr. Boulden speculated that claimant may 
 
         some day need a decompression laminectomy (exhibit 10, page 3).  
 
         On June 3, 1986, Dr. Boulden felt that claimant would need 
 
         permanent light duty (exhibit 10, page 4).  On July 11, 1986, Dr. 
 
                                                
 
                                                         
 
         Boulden reported that the forklift job for three days tore his 
 
         back apart (exhibit 10, page 5).  Dr. Boulden speculated on a 
 
         decompression laminectomy again on July 24, 1986 (exhibit 10, page 
 
         6).  On August 8, 1986, Dr. Boulden felt that conservative 
 
         treatment and epidural steroid injections had reached maximum 
 
         benefit.  He proposed a decompression laminectomy and he 
 
         conjectured that there was an 80% chance it would help claimant's 
 
         condition (exhibit 10, page 7).
 
         
 
              Claimant saw Marvin H. Dubansky, M.D., an orthopaedic 
 
         surgeon, for a second opinion on September 8, 1986.  Dr. Dubansky 
 
         noted that claimant was 5', 11 1/2" tall and was somewhat 
 
         overweight at 239 pounds.  He found very little to explain his 
 
         symptoms except perhaps some disc degeneration and 
 
         posturomechanical backache with a possibility of a nerve root 
 
         compression, but he could not produce any objective findings of 
 
         nerve root compression to the left lower extremity.  Dr. Dubansky 
 
         instructed claimant on how to lift, prescribed exercises, 
 
         prescribed a light-weight back support and instructed claimant to 
 
         elevate one foot on a footstool while working (exhibit 13, pages 
 
         1-3).  On September 29, 1986, Dr. Dubansky suspected some degree 
 
         of psychological overlay because claimant's symptoms did not 
 
         follow a neurologic pattern.  Dr. Dubansky appeared to oppose 
 
         surgery (exhibit 13, page 4).  On October 8, 1986, Dr. Dubansky 
 
         said he could not see why claimant had so much difficulty and 
 
         said he had nothing further to recommend.  He capitulated that it 
 
         may be that claimant has an impingement syndrome as Dr. Boulden 
 
         had suggested and that he may need surgery at this time (exhibit 
 
         13, page 5).
 
         
 
              On November 20, 1986, Dr. Boulden again recommended a 
 
         decompression laminectomy which is not too aggressive as 
 
         claimant's best chance of getting.better (exhibit 10, page 8). 
 
         Claimant underwent a decompressive neural foraminotomy of L5,S1 
 
         bilaterally with fat grafts on December 5, 1986 for severe 
 
         degenerative disc disease of L5,S1 with spinal stenosis (exhibit 
 
         14, pages 3, 5, 6 and 13).
 
         
 
              On December 23, 1986, Dr. Boulden reported no further pain 
 
         and just a little numbness in his right leg (exhibit 10, page 9). 
 
         On January 20, 1987, claimant had no pain and was doing well 
 
         (exhibit 10, page 10).  On February 17, 1987, Dr. Boulden 
 
         recommended a functional capacities evaluation and work hardening 
 
         program (exhibit 10, page 11).
 
         
 
              Claimant began the work hardening program on February 24, 
 
         1987 (exhibit 15, page 1).  Initial tests disclosed a good deal 
 
         of leg weakness (exhibit 15, pages 2-5).  On March 17, 1987, it 
 
         was reported that claimant had done splendidly.  Claimant could 
 
         lift 65 pounds from floor to waist, 54 pounds from knee to chest, 
 
         55 pounds overhead, carry 52 pounds, push 39 pounds and pull 65 
 
         pounds.  These weights were also to be considered restrictions 
 
         according to Thomas W. Bower, licensed physical therapist, who 
 
         conducted the work hardening and performed the evaluation 
 
         (exhibit 15, page 8).  On March 17, 1987, Dr. Boulden stated that 
 
                                                
 
                                                         
 
         claimant had completed the work hardening program and functional 
 
         capacities evaluation and had doubled his output.  Claimant told 
 
         him that the maximum he has to lift at work is 70 pounds.  He 
 
         therefore released claimant to return to work with the proper 
 
         safeguards in writing from employer (exhibit 10, page 12).  Dr. 
 
         Boulden noted that the forklift job for two and one-half days was 
 
         too much bouncing and vibration and aggravated claimant's back 
 
         (exhibit 10, page 13).
 
         
 
              On June 8, 1987, Dr. Boulden reported only occasional aches 
 
         and pains in his back.  He awarded a ten percent permanent 
 
         impairment rating to the body as a whole due to the spinal 
 
         decompression laminectomy for spinal stenosis (exhibit 10, page 
 
         14).
 
         
 
              On February 22, 1988, claimant related to Dr. Boulden that 
 
         some days he feels really terrible.  Dr. Boulden diagnosed that 
 
         claimant had pain secondary to remaining degenerative changes of 
 
         the lower spine (exhibit 10, page 16).  A follow-up examination 
 
         on March 29, 1988 reported only aches and pains and Dr. Boulden 
 
         again assessed a ten percent permanent impairment rating (exhibit 
 
         10, page 15).
 
         
 
              Claimant's treatment and recovery was closely monitored by 
 
         Eischen Rehabilitation Services from August 24, 1986 to April 23, 
 
         1987.  They generally concurred with all that transpired.  They 
 
         commented on March 20, 1987 that claimant could lift 68 pounds 
 
         and that the maximum lift in his job was 70 pounds (exhibit 12, 
 
         pages 1-10).
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of September 27, 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).
 
                                                
 
                                                         
 
         
 
              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 (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 (1962).
 
         
 
              As 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 had a degenerative back condition for at least ten 
 
         years prior to this injury.  Donald D. Berg, M.D., an orthopaedic 
 
         surgeon, suspected a disc herniation on March 31, 1978 and ordered 
 
         a myelogram (exhibit 5, page 1), but no abnormalities were 
 
         detected at that time (exhibit 6, page 2).  Claimant's attorney 
 
 
 
                        
 
                                                         
 
         made an excellent summary of claimant's back problems prior to the 
 
         work injury of September 27, 1985 (claimant's brief, pages 3 and 
 
         4).  At the time of this injury, claimant was simply working and 
 
         experienced pain in his back.  He did not relate any particular 
 
         traumatic, accidental event or happening at that time.  
 
         Apparently, there were no witnesses to this incident.  Claimant 
 
         reported the incident to his supervisor and asked to see a doctor 
 
         because of his prior back problems (transcript, pages 22 and 23).  
 
         Defendants accommodated claimant's injury even though claimant did 
 
         not begin active treatment for it with his personal physician 
 
         until November 18, 1985, approximately two months later.  Dr. Hart 
 
         diagnosed sciatica and left leg numbness (exhibit 1, page 9).
 
         
 
              Dr. Hines said that claimant's abnormal EMG's did not 
 
         correlate with a work injury and could only be identified with it 
 
         from the stress of being ill (exhibit 8, page 4).
 
         
 
              Dr. Summers could find no evidence of neurologic defect or 
 
         orthopaedic deficit (exhibit 9).
 
         
 
              Dr. Boulden diagnosed degenerative disc disease with 
 
         possible early spinal stenosis from a narrowing of disc spaces at 
 
         L5,S1 (exhibit 10, page 1).  This was verified by CAT scan 
 
         (exhibit 10, page 2).  When conservative treatment and a number 
 
         of epidural steroid injections failed, Dr. Boulden then 
 
         recommended a decompression laminectomy as having an 80% chance 
 
         of helping claimant's condition (exhibit 10, pages 3, 6 and 7).
 
         
 
              Dr. Dubansky, another orthopaedic surgeon, reviewed Dr. 
 
         Boulden's CAT scan and his own x-rays and found little to explain 
 
         claimant's symptoms other than disc degeneration and 
 
         posturomechanical backache.  Dr. Dubansky acknowledged the 
 
         possibility of nerve root compression, but could produce no 
 
         objective evidence of nerve root compression (exhibit 13, page 
 
         3). Since there was no true objective neurologic pattern, he 
 
         suspected a degree of psychological overlay (exhibit 13, page 4).  
 
         He appeared to oppose surgery (exhibit 13, page 4).  Eventually, 
 
         when claimant continued to have complaints of pain, Dr. Dubansky 
 
         granted that claimant may have impingement as Dr. Boulden had 
 
         diagnosed and that he may need surgery (exhibit 13, page 5). 
 
         Claimant's surgery was for degenerative disc disease (exhibit 14, 
 
         pages 3, 5, 6 and 13).
 
         
 
              After the surgery, claimant returned to work as a core maker 
 
         from approximately late March of 1987 or April of 1987 until May 
 
         7, 1987 when claimant chose to go on strike with his union. 
 
         According to Dr. Boulden's records and claimant's own testimony, 
 
         he did well after the surgery.  Claimant had no pain and only 
 
         little numbness in his leg (exhibit 16, pages 9 and 10).  
 
         Claimant reported aches and pains again in February and March of 
 
         1988.  Dr. Boulden said that these aches and pains were secondary 
 
         to remaining degenerative changes of the lumbar spine (exhibit 
 
         10, page 16).
 
         
 
              Therefore, it appears that claimant had a long-standing 
 
                                                
 
                                                         
 
         degenerative back condition which was aggravated when he 
 
         experienced pain at work on September 27, 1985.  Defendants 
 
         provided claimant with excellent medical care, allowed claimant to 
 
         see his own personal physician and permitted or arranged for 
 
         claimant to see a neurologist and several orthopaedic specialists 
 
         who are respected in their field.  Claimant was provided with 
 
         excellent vocational rehabilitation assistance through Eischen 
 
         Rehabilitation Services (exhibit 12).  Claimant acknowledged that 
 
         employer was good to him and other injured employees by trying to 
 
         find work that they could do after they were injured (transcript, 
 
         pages 28, 55 and 56).  Claimant was allowed to choose the core 
 
         maker job from a number of opportunities presented by employer.  
 
         It is now well accepted that efforts by an employer to assist an 
 
         injured employee by providing good medical care, good vocational 
 
         rehabilitation assistance, a work hardening program and functional 
 
         capacities examination, and by providing employment for the 
 
         injured employee are measures to be taken into consideration in 
 
         the determination of industrial disability.
 
         
 
              Claimant testified that he could not return to chipping and 
 
         grinding because there had been a cutback in the brass foundry 
 
         and there were two people who had more seniority than he. There 
 
         was a floater job, but he did not take it because sometimes this 
 
         job called for lifting as much as 100 pounds (transcript, pages 
 
         29 and 30).  There was evidence that the maximum normal lift in 
 
         chipping and grinding was 70 pounds.  Dr. Boulden said that 
 
         claimant could return to this work on March 17, 1987 (exhibit 10, 
 
         page 12). Claimant testified that Dr. Boulden did not tell him he 
 
         was prohibited from performing the chipping and grinding job, but 
 
         did recommend against it.  There is no written evidence that Dr. 
 
         Boulden ever placed any restrictions or limitations on claimant. 
 
         Dr. Boulden was the only physician who treated claimant after the 
 
         surgery.
 
         
 
              Thomas Bower, the licensed physical therapist, determined 
 
         that claimant could safely lift 65 pounds from floor to waist, 54 
 
         pounds from knee to chest and 55 pounds overhead.  He said 
 
         claimant could carry 52 pounds, push 39 pounds and pull 65 pounds 
 
         (exhibit 15, page 8).  These restrictions were never formally 
 
         adopted or imposed by Dr. Boulden, even though he referred to the 
 
         work hardening program and functional capacities evaluation in 
 
         his letter of March 13, 1987 and in the same letter he said that 
 
         claimant told him the maximum he has to lift at work is 70 pounds 
 
         (exhibit 10, page 12).  Dr. Boulden released claimant to return 
 
         back to work, apparently provided the 70-pound lifting 
 
         restriction was in writing (exhibit 10, page 12).
 
         
 
              Claimant did return to work as a core maker earning $12.00 
 
         per hour with the piece rate incentive for this job.  He was able 
 
         to perform the core maker job from late March or April of 1987 
 
         until the time the strike occurred on May 7, 1987.  From the 
 
         foregoing evidence, it is determined that claimant has not 
 
         sustained a substantial loss of earning capacity.  The fact that 
 
         there were employees senior to claimant which prevented his return 
 
         to chipping and grinding is not a loss caused by this injury.  
 
                                                
 
                                                         
 
         With respect to the floater job, there is no evidence that 
 
         claimant had ever performed the floater job prior to the injury.  
 
         The fact that pay rates and incentive pay rates were less after 
 
         the strike than before the strike is an economic factor unrelated 
 
         to this injury. The strike itself is an economic factor which 
 
         affected all union employees and is unrelated to this injury.  
 
         Webb v. Lovejoy Construction Company, II Iowa Industrial 
 
         Commissioner Reports, 430 (App. Decn. 1981).
 
         
 
              Since the decertification, claimant has been invited to 
 
         return to work.  Holmberg testified that claimant would be put to 
 
         work if he applied for work.  The fact that claimant has chosen 
 
         to not apply for available work is a personal decision for which 
 
         employer should not be held liable and which is unrelated to the 
 
         injury to the back itself.  Claimant has impliedly indicated that 
 
         he is able to perform factory and foundry work because of the 
 
         large number of applications that he has made for factory and 
 
         foundry work after recovering from this injury.  At the worst, 
 
         claimant is foreclosed only from those heavier manual labor jobs 
 
         such as the floater job in chipping and grinding which requires 
 
         lifting over approximately 65 or 70 pounds.  Michael v. Harrison 
 
         County, 34th Biennial Report of Industrial Commissioner, 218, 220 
 
         (App. Decn., January 30, 1979); Rohrberg v. Griffin Pipe Products 
 
         Co., I Iowa Industrial Commissioner Report, 282 (1984).  In this 
 
         case, there is no evidence that claimant had ever performed 
 
         heavier manual labor jobs that required lifting more than 70 
 
         pounds.
 
         
 
              Claimant's injury did require back surgery.  The surgery 
 
         performed was a decompression laminectomy.  It was not a fusion. 
 
         Dr. Boulden awarded claimant a ten percent permanent impairment 
 
         rating.  This permanent functional physical impairment to the 
 
         body as a whole is the most substantial evidence of industrial 
 
         disability in this case.
 
         
 
              Added to that is the fact, however, that claimant is 39 years 
 
         old and should be near the high point of his earnings career.  
 
         This makes his loss more severe than it would in the case of a 
 
         younger or older employee.  Becke v. Turner-Busch, 34th Biennial 
 
         Report Industrial Commissioner, 34 (1979); Walton v. B & H Tank 
 
         Corporation, II Iowa Industrial Commissioner Report, 426 (1981); 
 
         McCoy v. Donaldson Company, Inc., Travelers Insurance Company, 
 
         and Second Injury Fund of Iowa, file numbers 752670 and 805200 
 
         (App. Decn, April 28, 1989).
 
         
 
              At age 39, claimant is young enough to be retrained.  The 
 
         feasibility of retraining is one of the considerations involved 
 
         in determining industrial disability.  Conrad v. Marquette 
 
         School, Inc., IV Iowa Industrial Commissioner Report, 74, 78 
 
         (1984). Claimant does have the benefit of a high school education 
 
         in which he received average grades.  Although he found academic 
 
         courses more difficult, he did find that he was gifted in the 
 
         manual arts. He has proven his ability to earn money through 
 
         application of the manual arts by doing well on his incentive pay 
 
         as a chipper.and grinder and as a core maker.
 
                                                
 
                                                         
 
         
 
              Some consideration should be given to the fact that an 
 
         employee that has sustained a back injury which required surgery 
 
         and involved a workers' compensation claim is less employable 
 
         than an employee who is not in this position.
 
         
 
              Consideration must be given to how much of claimant's 
 
         disability is due to this injury and how much of it is due to his 
 
         degenerative back condition which both preceded and followed his 
 
         recuperation from this injury.  The first time claimant saw Dr. 
 
         Boulden, the doctor diagnosed degenerative back condition.  The 
 
         last time Dr. Boulden saw claimant, he diagnosed it as continuing 
 
         aches and pains which were secondary to his remaining 
 
         degenerative back condition.
 
         
 
              Consideration must also be given to the fact that Dr. Berg, 
 
         a neurosurgeon, Dr. Hines, a neurologist, and Dr. Summers, whose 
 
         speciality is unknown, could not pinpoint the cause of claimant's 
 
         pain in his back.  Dr. Dubansky, looking at the same CAT scan 
 
         which Dr. Boulden looked at as well at as his own x-rays, could 
 
         not pinpoint the cause of claimant's back pain.  Because it did 
 
         not follow a neurologic pattern, he felt there was a certain 
 
         degree of psychological overlay.  Dr. Dubansky's only objective 
 
         finding was degenerative back disease.  Claimant seemed to be 
 
         having the same general type of back complaints when he saw Dr. 
 
         Boulden in February and March 1988 as he was having when he saw 
 
         Dr. Hart and Dr. Berg in 1978 and 1979.  Claimant testified at 
 
         the hearing that his chief complaint is leg numbness.  He has 
 
         occasional back pain, but it is relieved by aspirin.  Claimant 
 
         has testified that he has not sought medical treatment for his 
 
         back since he last saw Dr. Boulden in March of 1988, which was 
 
         approximately one year prior to the hearing.
 
         
 
                        
 
                                                         
 
              The fact that claimant is earning only between $60-$500 per 
 
         month selling used cars for a friend is not a loss of earning 
 
         capacity due to this injury, but is rather due to the fact that 
 
         he chooses to perform this work rather than accept the work which 
 
         has been offered to him by employer.
 
         
 
              The chief indicators of loss of earning capacity in this 
 
         case are:  (1) the physical and functional impairment rating of 
 
         ten percent to the body as a whole, (2) the fact that claimant is 
 
         foreclosed from doing heavier manual labor jobs in the employment 
 
         market, (3) the fact that claimant is near the peak of his 
 
         earnings career at age 39, and (4) the fact that as a job 
 
         applicant, claimant is a person that injured his back, received a 
 
         laminectomy and has claimed workers' compensation benefits.
 
         
 
              Therefore, based upon all of the foregoing factors and all 
 
         of the factors taken into consideration in order to determine 
 
         industrial disability and by applying agency experience, 
 
         technical competence and specialized knowledge (Iowa 
 
         Administrative Procedure Act 17A.14(5)], it is determined that 
 
         claimant has sustained an industrial disability of 20% of the 
 
         body as a whole and is entitled to 100 weeks of permanent partial 
 
         disability benefits.
 
         
 
                               FINDINGS OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant sustained a ten percent permanent impairment 
 
         as a result of the decompression laminectomy which was caused by 
 
         the injury of September 27, 1985.
 
         
 
              That claimant is physically capable of performing all of the 
 
         work he had done prior to this injury such as chipping and 
 
         grinding and making cores.
 
         
 
              That claimant is foreclosed from jobs which require lifting 
 
         weights in excess of approximately 65 or 70 pounds.
 
         
 
              That claimant was not placed under any formal permanent 
 
         restrictions or limitations by Dr. Boulden, his treating 
 
         orthopaedic surgeon.
 
         
 
              That claimant's current actual earnings as a part-time used 
 
         car salesman and his economic condition as a result of these 
 
         earnings is a matter of his own personal choices as they relate 
 
         to labor-management relations with employer and his actual loss 
 
         of earnings is not the result of the injury of September 27, 
 
         1985.
 
         
 
              That claimant has sustained an industrial disability of 20% 
 
         of the body as a whole.
 
         
 
                             CONCLUSIONS OF LAW
 
                                                
 
                                                         
 
         
 
              WHEREFORE, based upon the evidence presented and foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That the injury of September 27, 1985 was the cause of 
 
         permanent disability.
 
         
 
              That claimant is entitled to 100 weeks of permanent partial 
 
         disability benefits based upon a 20% industrial disability to the 
 
         body as a whole.
 
         
 
                                  ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant one hundred (100) weeks of 
 
         permanent partial disability benefits at the rate of three 
 
         hundred sixty-four and 76/100 dollars ($364.76) per week in the 
 
         total amount of thirty-six thousand four hundred seventy-six and 
 
         00/100 dollars ($36,476.00) commencing on March 21, 1987 as 
 
         stipulated to by the parties.
 
         
 
              That defendants are entitled to a credit of fifty (50) weeks 
 
         of permanent partial disability benefits paid to claimant at the 
 
         rate of three hundred sixty-four and 76/100 dollars ($364.76) per 
 
         week in the total amount of eighteen thousand two hundred 
 
         thirty-eight and 00/100 dollars ($18,238.00) which were paid to 
 
         claimant as workers' compensation benefits prior to hearing.
 
         
 
              That the remaining eighteen thousand two hundred 
 
         thirty-eight and 00/100 dollars ($18,238.00) in permanent partial 
 
         disability benefits is to be paid to claimant in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay the costs of this proceeding pursuant to 
 
         Division of Industrial Services Rule 343-4.33, including the cost 
 
         of the transcript of this hearing.
 
         
 
              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 5th day of May, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
                                                
 
                                                         
 
         Copies To:
 
         
 
         Mr. Fredd J. Haas
 
         Attorney at Law
 
         5001 SW 9th Street
 
         Des Moines, Iowa  50315
 
         
 
         Mr. Paul C. Thune
 
         Attorney at Law
 
         Suite 300, Fleming Building
 
         P.O. Box 9130
 
         Des Moines, Iowa  50306-9130
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.60, 1803
 
                                                 Filed May 5, 1989
 
                                                 WALTER R. McMANUS, JR.
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEITH MOORE,
 
         
 
              Claimant,
 
         
 
         vs.                                       File No. 812059
 
         
 
         CLOW CORPORATION,                      A R B I T R A T I 0 N
 
         
 
              Employer,                            D E C I S I 0 N
 
         
 
         and
 
         
 
         ROYAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1402.60, 1803
 
         
 
              Claimant had a long history of back complaints and a 
 
         degenerative back condition.  He experienced pain at work, which 
 
         resulted in time off work and a decompression laminectomy. 
 
         Permanent impairment was ten percent of the body as a whole. 
 
         Claimant was awarded 20% industrial disability.
 
         
 
              Employer provided:  (1) good medical care, (2) good 
 
         vocational rehabilitation assistance, (3) work hardening program 
 
         and functional capacity evaluation, and (4) found a job claimant 
 
         could do when he was released to return to work.
 
         
 
              No allowance made for economic factors caused by 
 
         labor-management problems due to a strike and lower wages of 
 
         employees after union was decertified.
 
         
 
              Primary factors used to make the award were:  (1) the 
 
         permanent impairment rating of ten percent, (2) the fact claimant 
 
         was foreclosed from performing lifting in the future over 65 or 
 
         70 pounds, (3) the fact claimant was at the peak of his earnings 
 
         career at 39 years of age and 19 years with this same employer, 
 
         and (4) that claimant as a job applicant is a person with a 
 
         work-related back injury that necessitated surgery and involved a 
 
         workers' compensation claim.