BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL HARMON,
 
         
 
              Claimant,
 
                                                    File No. 818287
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         CONTROL SERVICES, INC.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and                                           F I L E D
 
         
 
         BITUMINOUS INSURANCE CO.                     MAR 14 1988
 
         
 
              Insurance Carrier,             IOWA INDUSTRIAL COMMISSIONER
 
              Defendants.
 
         
 
         
 
                                INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Michael 
 
         Harmon, claimant against Control Services, Inc., employer, and 
 
         Bituminous Insurance Co., insurance carrier, defendants, for 
 
         benefits as a result of an injury that occurred on February 25, 
 
         1986.  A hearing was held in Council Bluffs, Iowa on July 13, 
 
         1987 and the case was fully submitted at the close of the 
 
         hearing.  The record consists of joint exhibits one through 27, 
 
         the testimony of Michael Harmon (claimant) and John Earl Jones 
 
         (employer's manager).  Defendants provided a copy of the 
 
         transcript for the industrial commissioner's file.  Both 
 
         attorneys submitted excellent briefs.
 
         
 
                                STIPULATIONS
 
         
 
              The parties stipulated to the following matters.
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on February 25, 1986 which 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury is the cause of temporary disability during 
 
         a period of recovery and claimant is entitled to temporary 
 
         disability benefits from February 26, 1986 to July 11, 1986.
 
         
 
              That the type of permanent disability, if the injury is 
 
         found to be a cause of permanent disability, is industrial 
 
         disability to the body as a whole.
 
         
 
              That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is July 11, 
 
                                                
 
                                                         
 
         1986.
 
         
 
              That the rate of compensation, in the event of an award of 
 
         weekly benefits, is $350.62 per week.
 
         
 
              That the fees charged for medical services or supplies are 
 
         fair and reasonable and defendants are not offering contrary 
 
         evidence.
 
         
 
              That the medical services and supplies were necessary and 
 
         reasonable medical treatment and defendants are not offering 
 
         contrary evidence.
 
         
 
              That defendants claim no credit under Iowa Code Section 
 
         85.38(2) for previous payment of benefits under an employee 
 
         nonoccupational group plan.
 
         
 
              That defendants are entitled to a credit for workers' 
 
         compensation permanent partial disability benefits paid to 
 
         claimant prior to hearing for 26 and 1/7 weeks at the rate of 
 
         $350.62 per week.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That the amount of claimant's costs for Dr. Margules' 
 
         deposition and testimony is $200.00 and that the court reporter 
 
         fee of Rex Blair and Associates to report and transcribe his 
 
         testimony is $129.00.
 
         
 
                                     ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing.
 
         
 
              Whether the injury was the cause of any permanent 
 
         disability.
 
         
 
              Whether claimant is entitled to permanent partial disability 
 
         benefits as industrial disability.
 
         
 
              Whether claimant is entitled to medical benefits under Iowa 
 
         Code section 85.27, more specifically, whether claimant's surgery 
 
         was caused by the work injury or whether it was caused by his 
 
         preexisting congenital back condition.
 
         
 
                           SUMMARY OF THE EVIDENCE
 
         
 
              Claimant was 36 years old at the time of the injury and 37 
 
         years old at the time of the hearing.  He is single and has no 
 
         dependents.  He graduated from high school, attended junior 
 
         college approximately one year and took college correspondence 
 
         courses after that for several months.  He took general subjects 
 
         and received C and D grades.  He was in the army for three years 
 
         where he completed basic training, advanced individual training 
 
         and military police training.  After that he cut trees, clerked 
 
                                                
 
                                                         
 
         in 7-11 stores and installed drywall.  He has also lugged beef 
 
         for a packing house and performed outdoor construction work as a 
 
         laborer and has laid concrete blocks.  Claimant entered the sheet 
 
         metal trade and attended evening classes for four years as an 
 
         apprentice before he became fully qualified as a sheet metal 
 
         worker.  Sheet metal work requires heavy lifting and due to back 
 
         problems, claimant learned to be an air balancer, balancing the 
 
         flow of heating and air conditioning.  Air balancing is not heavy 
 
         work. Claimant said 50 percent of it is paperwork (Transcript 
 
         page 22). Air balancing does require climbing ladders and being 
 
         able to bend and twist and stoop and to work in very awkward 
 
         bodily positions in high places in the upper portions of a room.  
 
         Balancing is a separate specialty within the sheet metal trade.  
 
         At the same time, since sheet metal work is seasonal, claimant 
 
         also purchased a truck and drove as an over the road trucker.  
 
         This business eventually failed.  Claimant also studied a year 
 
         and received a certificate in advanced heating and air 
 
         conditioning (Exhibit 27, pages 1-25).
 
         
 
              Prior to this injury, claimant was previously injured on 
 
         September 26, 1978 while doing heavy sheet metal work for another 
 
         employer.  At that time, he was installing fabricated metal and 
 
         insulated panels at the power slant in Council Bluffs.  His back 
 
         simply gave out due to the position he was working in on that 
 
         job. Claimant was treated by Cemal M. Adli, M.D., and Maurice P. 
 
         Margules, M.D.  As a result of that injury claimant was off work 
 
         about two weeks and received 75 weeks of permanent partial 
 
         disability benefits pursuant to a compromise settlement.  
 
         Claimant was treated conservatively for this injury and received 
 
         no surgery.  Claimant testified that Dr. Margules returned him to 
 
         work and simply told him to use his own discretion about the type 
 
         of activities that he engaged in.  Claimant admitted that he had 
 
         a preexisting congenital back condition prior to that injury (Ex. 
 
         27, pp. 32-37).  Claimant also said that following that injury he 
 
         had a little tightness and discomfort in his lower back and a 
 
         little bit of numbness in his leg (Ex. 27, p. 40).
 
         
 
              Dr. Adli reported that he saw claimant at the emergency room 
 
         at Jennie Edmundson Hospital on September 27, 1978 for pain in 
 
         his low back and down into his left foot.  He reported that 
 
         claimant told him that approximately five days before this his 
 
         back went out while bending over and pulling panels up into 
 
         position.  His back became worse and he could not work.  X-rays 
 
         disclosed a spondylolisthesis at L-5 (1st degree).  Claimant was 
 
         treated conservatively and returned to work a week later.  Dr. 
 
         Adli reported again on December 6, 1978 that claimant continued 
 
         to have problems off and on when he lifts or bends.  The doctor 
 
         added that this was the first time claimant had reported symptoms 
 
         from his congenital defect but he predicted claimant would 
 
         continue to have problems with his back.  Dr. Adli noted that 
 
         claimant was a sheet metal worker and advised him that he should 
 
         probably change his occupation (Ex. 17).
 
         
 
              Claimant then saw Dr. Margules on March 28, 1979.  Dr. 
 
         Margules said the injury x-rays on September 26, 1978 disclosed 
 
                                                
 
                                                         
 
         spondylolysis of L-5 and very minimal spondylolisthesis of L-5 
 
         over S-1.  A myelogram was performed on April 2, 1979.  It 
 
         disclosed spondylolysis of L-5 and very minimal spondylolisthesis 
 
         of L-5 over S-1.  Dr. Margules stated that these were preexisting 
 
         congenital conditions of the lumbar spine aggravated by the 
 
         injury of September 26, 1978.  Dr. Margules wrote a letter on 
 
         March 12, 1979 and another letter on March 21, 1979 in which he 
 
         recommended that claimant discontinue his present occupation, 
 
         seek employment of a sedentary nature and that he should seek 
 
         retraining through the vocational rehabilitation facilities of 
 
         the state of Iowa.  On July 27, 1979, Dr. Margules wrote "It is 
 
         our opinion that as a result of the injuries sustained on 
 
         September 26, 1978 Mr. Harmon has a partial permanent physical 
 
         disability which is rated at 10-15% of the body as a whole." (Ex. 
 
         15).
 
         
 
              Claimant related that he had some back problems in 1983 and 
 
         again in 1984 when he was driving as an over the road trucker.  
 
         He collected workers' compensation benefits on one of these 
 
         incidents but not on the other one.
 
         
 
              Claimant admitted that he had some continuing back problems 
 
         on August 16, 1984 when he saw R. Schuyler Gooding, M.D., because 
 
         he hurt his back working on his truck.  His back was "snapping" 
 
         and his legs were giving way.  Dr. Goading reported that claimant 
 
 
 
                           
 
                                                         
 
         had recurring old back pain with numbness of the left leg, and 
 
         occasional numbness of the right leg.  Dr. Gooding said "X-rays 
 
         of the lumbar spine revealed a first degree L5 and S1 
 
         spondylolisthesis secondary to spondylosis, a condition of the 
 
         lower back, that is usually congenital in nature, and which can 
 
         become symptomatic in physically active people." (Ex. 14).
 
         
 
              Dr. Gooding recommended no specific treatment other than to 
 
         avoid overstressing his lower back.
 
         
 
              The injury under consideration in this case occurred on 
 
         February 25, 1986 when claimant fell approximately eight feet 
 
         from a ladder and landed on his back on the concrete floor while 
 
         working for this employer at the dog track in Council Bluffs. 
 
         Claimant was balancing air at the time of the injury.  Claimant 
 
         said that he never returned to heavy sheet metal work after his 
 
         first injury at the power plant of September 26, 1978 (Tran. pp. 
 
         27 & 28).  Claimant further testified that the instant injury was 
 
         worse than anything else that had ever happened before.  It 
 
         caused excruciating pain in his lower back, down into his legs 
 
         and up into his neck.  He reported this injury to employer.  
 
         Employer indicated that he could see the doctor he had seen 
 
         before so claimant recontacted Dr. Margules.  The pain became 
 
         worse.  Claimant testified that he can take pain but that he 
 
         could not take this pain.  Claimant was admitted to Jennie 
 
         Edmundson Hospital again and Dr. Margules performed surgery on 
 
         March 17, 1986 (Tran. pp. 30-33).
 
         
 
              The surgery relieved the excruciating pain but claimant said 
 
         that he still has discomfort from the surgery and developed new 
 
         complaints in the right side of his back (Tran. p. 37).  Claimant 
 
         returned to work and did office work, computer work and blueprint 
 
         work for five weeks and was then laidoff.  Claimant testified 
 
         that he was laidoff because he had retained an attorney and 
 
         presented a workers' compensation claim (Tran. pp. 38-41).  John 
 
         Earl Jones, employer's manager, testified that claimant was 
 
         laidoff because the work was completed (Tran. p. 78).  Jones also 
 
         verified that claimant was never called back to work as a 
 
         balancer (Tran. p. 81).  He said that it was tacitly agreed 
 
         between he and claimant that if claimant returned to work as a 
 
         balancer it might hurt his back.  Jones also testified that 
 
         claimant did not reapply for the job of balancer (Tran. p. 79).
 
         
 
              The medical evidence reveals that claimant was admitted to 
 
         Jennie Edmundson Hospital on February 26, 1986 for pain in the 
 
         lumbar spine and into the left lower extremity after an eight 
 
         foot fall to the concrete floor (Exs. 11, 12, & 13).  Dr. 
 
         Margules verified that claimant had not returned to heavy sheet 
 
         metal work after the 1978 injury but had been working as a 
 
         balancer instead which entails less heavy lifting.  Dr. Margules 
 
         reported that claimant's back was severely bruised in two places.  
 
         A myelogram produced no evidence of any new abnormality (Ex. 10).  
 
         X-rays also showed that claimant's back condition remained 
 
         unchanged (Ex. 9(l)].  Electromyogram and nerve conduction 
 
         studies were normal [Ex. 9(2)].  On March 2, 1986 claimant was 
 
                                                
 
                                                         
 
         discharged with the following diagnosis.
 
         
 
              FINAL DIAGNOSIS;  Sprain contusion of the lumbar
 
                                spine due to trauma sustained in
 
                                an accidental fall February 25, 1986.
 
                                Pre-existing spondylolisthesis of L5 over 
 
                                S1, possibly aggravated by trauma sustained 
 
                                as in #I.
 
         
 
         [Ex. 9(2)]
 
         
 
              Claimant was readmitted on March 16, 1980.  (Ex. 8).  Dr. 
 
         Margules performed an excision of the posterior arch of L5 and 
 
         disarticulation at the false joints on March 17, 1986  (Ex. 6). 
 
         Claimant was discharged on March 24, 1986 (Ex. 5).  Dr. Margules 
 
         reported on June 16, 1986, it was his opinion that at that time 
 
         claimant could return to any schooling activities in order to 
 
         obtain a sedentary type of employment (Ex. 3).  Dr. Margules 
 
         finally wrote on June 19, 1986:
 
         
 
              It was our opinion, at this time, that as the result of the 
 
              injury sustained in the accidental fall of February 25, 1986 
 
              which aggravated a pre-existing condition at the L5 level, 
 
              the patient has a partial permanent physical disability 
 
              which is rated at 10 to 15% of the body as a whole.
 
         
 
         (Ex. 2)
 
         
 
              Dr. Margules, a neurosurgeon, testified by deposition that 
 
         claimant suffered two things from the fall of February 25, 1986 
 
         (1) a contusion of his musculature (2) possible change in his 
 
         bony structure at the level of the spondylolisthesis (Ex. 26, p. 
 
         16). When claimant reported to Dr. Margules that his pain was 
 
         intolerable, Dr. Margules then performed the surgery (Ex. 26, pp. 
 
         17 & 18).
 
         
 
              There is an issue in this case as to whether the surgery was 
 
         caused by the fall of February 25, 1986 or whether it was caused 
 
         by claimant's preexisting congenital back condition.  Dr. Margules 
 
         testified at one point in his deposition that he felt there was a 
 
         possible change in claimant's bony structures (Ex. 26, p. 16) and 
 
         at another point that claimant had physical anatomical change (Ex. 
 
         26, p. 19).  Yet, in response to defense counsel's question as to 
 
         what objective changes he observed, Dr. Margules replied that the 
 
         x-rays showed no change in the bone structures.  He added that he 
 
         proceeded clinically because of the persistent complaint of severe 
 
         pain in the lumbar region and the paresthesia in the lower 
 
         extremities, which is more subjective.  He repeated that he 
 
         decided to do the surgery because the patient indicated he had a 
 
         pain which he did not feel he could tolerate (Ex. 26, pp. 24 & 
 
         25).  Dr. Margules added that he also performed the surgery to 
 
         avoid dysfunction of the cauda equina due to mechanical trauma.  
 
         If severe pressure is applied to the cauda equina it can cause 
 
         drastic complications such as bladder, rectal and sexual 
 
         dysfunction (Ex. 26, pp. 26 & 27).
 
                                                
 
                                                         
 
         
 
              Even though it appears that Dr. Margules' testimony was 
 
         inconsistent about whether there were or were not objective 
 
         changes in the bony structures, nevertheless, Dr. Margules 
 
         testified that the fall on February 25, 1986 was a material and 
 
         substantial factor in causing the aggravation of claimant's 
 
         spondylolisthesis and resulting in his surgery on March 17, 1986 
 
         for resection of the posterior arch at the level of L-5 (Ex. 26, 
 
         pp. 18 & 19).
 
         
 
              Claimant had residual pain after the surgery shown by the 
 
         office notes of July 11, 1986 and September 22, 1986 which Dr. 
 
         Margules said would come and go and probably continue 
 
         indefinitely.  Again, Dr. Margules recommended sedentary work 
 
         (Ex. 26, pp. 20-22).  The doctor clarified that the ten to 15 
 
         percent impairment rating that he made on June 19, 1986 was not 
 
         in addition to the earlier rating on July 27, 1979, but rather it 
 
         was part of the same disability (Ex. 26, p. 23).
 
         
 
              There is evidence that the economy had an impact on the 
 
         sheet metal trade.  Claimant testified that union membership 
 
         declined from 600 to 300 people (Ex. 27, p. 22).  Jones testified 
 
         that employer employed two balancers, instead of three balancers 
 
         at one time after claimant fell and that they did not work full 
 
         time. Employer employed five balancers at the time of the hearing 
 
         (Tran. pp. 79 & 80).
 
         
 
              Claimant admitted that after he was laidoff by employer, he 
 
         did not go out and try to find a job (Ex. 27, p. 6 & 7).  
 
         Instead, he drew unemployment compensation from July of 1986 
 
         until the time of his deposition on December 2, 1986 (Ex. 27, p. 
 
         8: Tran. pp. 61 & 62).  Either this is not true or claimant then 
 
         drew unemployment compensation at the same time he was earning 
 
         weekly wages from his UPS job because the record shows that he 
 
         was paid on November 15, 1986, which would mean he started to 
 
         work on November 8, 1986 because he was paid weekly [Ex. 25(2)].  
 
         Claimant was actually working at the time of the deposition.  
 
         Claimant testified that he was earning $10.00 per hour or more at 
 
         the time of the hearing (Tran. p. 44).  His current employer 
 
         reported however, that he earns $12.62 per hour [Ex. 25(2)].  
 
         Defense counsel pointed out a number of other material 
 
         inconsistencies between claimant's testimony at the hearing and 
 
         the time of his earlier deposition which reflect on claimant's 
 
         credibility (Tran. pp. 49-65). Claimant testified that he was 
 
         earning close to $18.00 per hour from employer at the time of his 
 
         injury but on the paycheck it shows $16.11 per hour.
 
         
 
              At the hearing, claimant testified that he started to work 
 
         for UPS just before Christmas (Tran. p. 42).  The UPS record, 
 
         however, indicates that claimant started to work on approximately 
 
         November 8, 1986 [Ex. 25(2)].  After Christmas, he was off but, 
 
         claimant was rehired by UPS and has continued to work there as a 
 
         feeder driver, but he does not do any loading or unloading.  He 
 
         hooks and unhooks the trailer from the tractor by mechanical 
 
         means (Tran. p. 43).  Driving does present a problem with his 
 
                                                
 
                                                         
 
         neck and the right side of his back from sitting and bouncing in 
 
         the truck. He said that his job is only probationary to see if he 
 
         can handle it with his back (Tran. p. 45).  Also, he could get 
 
         bumped by an employee with more seniority (Tran. pp. 46 & 47).
 
         
 
              Claimant presented a medical bill from Medical Anesthesia 
 
         Associates in the amount of $525.00 (Ex. 23).  There are two 
 
         bills from Dr. Margules.  One of them shows that claimant owes 
 
         $3,170.00 [Ex. 24(l)].  The other one shows that claimant owes 
 
         $20.00 [24(3)].
 
         
 
                          APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of February 25, 1986 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 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.2d 56, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815 (1962).
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. Sch., 
 
         266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles Co., 158 
 
         N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 N.W.2d 
 
         704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963); Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); Ziegler v. United States Gypsum 
 
         Co., 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 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, 
 
         25
 
         
 
              Claimant did prove that the fall of February 25, 1986 was 
 
         the cause of permanent disability.  The letter of Dr. Margules 
 
         dated July 19, 1986 stated that the accidental fall of February 
 
         25, 1986 aggravated a preexisting condition at the L-5 level and 
 
         that claimant had a permanent partial physical disability which 
 
         he rated at ten to 15 percent of the body as a whole (Ex. 2).  In 
 
         his deposition Dr. Margules said that the injury was a material 
 
         and substantial contributing factor to the surgery which he 
 
         performed on March 17, 1986 (Ex. 26, pp. 18 & 19).
 
         
 
              Claimant did prove a slight increase in his industrial 
 
         disability due to the injury of February 25, 1986.  It is true 
 
                                                
 
                                                         
 
         that the permanent functional impairment ratings after both 
 
         injuries, September 26, 1978 and February 25, 1986, were the 
 
         same, ten to 15 percent, and that these ratings were made by the 
 
         same doctor.  It is also true that after both injuries it was 
 
         recommended that claimant perform sedentary work.  Therefore, 
 
         defendants argue that there is no change after the second injury 
 
         that was not already present after the first injury.  There are 
 
         some distinctions or differences that increase claimant's 
 
         industrial disability as distinguished from his permanent 
 
         functional impairment.
 
         
 
              In the first injury, there was only a strain.  In the second 
 
         injury, there was severe trauma from an eight foot fall that 
 
         caused two large contusions to claimant's back.  The first 
 
         injury, a strain, was treated only with conservative measures and 
 
         claimant recovered.  The second injury, a traumatic accident, 
 
         required major back surgery.
 
         
 
              On one hand, it could be argued that claimant may be better 
 
         off after the surgery than before the surgery because his 
 
         lifelong congenital defects which were a threat to his earning 
 
         capacity are corrected.  On the other hand, claimant returned to 
 
         the competitive labor market with not only a history of back 
 
         injury but also a major back surgical procedure.  Workers in this 
 
         category, including claimant, find that physical and manual labor 
 
         type of jobs are foreclosed to them.  Michael v. Harrison County, 
 
         thirty-fourth Biennial Report of the Industrial Commissioner 218, 
 
         220 (Appeal Decision 1979).  Although claimant had previously 
 
         abandoned heavy sheet metal work, he was still able to perform 
 
         the job of air balancer, which was not heavy work but, 
 
         nevertheless, required a fair amount of agility.  Jones testified 
 
         that both he and claimant agreed that claimant might get hurt if 
 
         he tried to perform the balancing job again.  Therefore, the 
 
         balancing job seems to be foreclosed to claimant since the fall 
 
         of February 25, 1986 and the resulting surgery.
 
         
 
              Also, agency expertise includes the knowledge that many 
 
         employers prefer to hire job applicants without a previous 
 
         history of back surgery for any kind of work, even light work, if 
 
         it might predispose a back injury.
 
         
 
              Claimant could possibly be a balancer again, but it is not 
 
         likely that he would be hired with this surgical history and it 
 
         probably would not be wise for him to endeavor to try it.  
 
         Claimant testified that although balancing is not heavy work, it 
 
         is done at ceiling heights on ladders with much twisting, bending 
 
         and getting into awkward positions.  Dr. Margules testified that 
 
         if claimant were to bend, lift or crawl it would be a recipe for a 
 
         catastrophe and further recurrence of his problems (Ex. 26, p. 
 
         22).
 
         
 
              Despite Dr. Margules' admonition to do sedentary work after 
 
         the injury of September 25, 1978, claimant did demonstrate that 
 
         he could perform the job of balancing air.  However, whether his 
 
         fall on February 25, 1986 was due to his congenital back 
 
                                                
 
                                                         
 
         condition or was simply a slip and fall for some other reason is 
 
         not known. Claimant did not know for sure how he happened to 
 
         fall.  In any event, it seems clear that claimant is now 
 
         foreclosed from the job of air balancing since the injury of 
 
         February 25, 1986 and his resulting surgery.
 
         
 
              Claimant sought no employment at all from July of 1986 until 
 
         approximately November 8, 1986.  During that period he received 
 
         unemployment compensation benefits.  Therefore, it does not 
 
         appear that claimant was highly motivated to work at least during 
 
         that four month period of time.
 
         
 
              The job of driving a truck over the road, even though it 
 
         involved sitting, is not generally considered to be sedentary 
 
         employment, in workers' compensation jargon, because of the 
 
         extreme amount of jarring to the body while driving trucks for 
 
         long periods of time as well as certain duties normally required 
 
         of the drivers, such as crawling in and out of the vehicles.
 
         
 
              Therefore, claimant can do work that is not strictly 
 
         sedentary.  He also drove trucks over the road in between these 
 
         two injuries, in 1983 and 1984, when he was admonished to do only 
 
         sedentary work.  He testified that he had back complaints in 1983 
 
         and 1984 but there was no evidence that he was forced to quit 
 
         driving due to his back condition.  He testified that his current 
 
         job of driving a truck over the road does cause discomfort and 
 
         pain but he has been able to perform the job.
 
         
 
              The difference in the hourly rate between a sheet metal 
 
         worker and the over the road truck driving job for UPS is not a 
 
         true indication of claimant's loss of earning capacity.  Claimant 
 
         testified that sheet metal work is seasonal and also subject to 
 
         economic fluctuations.  The driving job for UPS is a 40 hour a 
 
         week job plus anywhere from two to seven hours overtime per week 
 
         [Ex. 25(3)].  It is entirely possible that claimant could earn 
 
         more income on an annual basis in his present job as a driver than 
 
         as a sheet metal worker or air balancer.  Therefore, primarily 
 
         based upon the element of major back surgery following a traumatic 
 
         fall, it is determined that certain employments are foreclosed to 
 
         claimant resulting in an additional industrial disability of five 
 
         percent over and above the 15 percent that claimant was already 
 
         paid for the prior injury of September 26, 1978.  Claimant is 
 
         young enough that he can develop new job skills.  He has 
 
         demonstrated from his past employments and educational efforts 
 
         that he is bright and can learn to do very technical types of 
 
         work.  Claimant has already been paid five point four percent 
 
         industrial disability by employer prior to the hearing.  
 
         Therefore, claimant's award of increased industrial disability of 
 
         five percent does not result in any additional payments by 
 
         employer.
 
         
 
              Claimant was entitled to see Dr. Margules.  Both claimant 
 
         and employer testified that he was told that he could see Dr. 
 
         Margules.
 
         
 
                                                
 
                                                         
 
              Whether claimant is entitled to recover for the expenses of 
 
         the surgery depends upon whether the surgery was caused by the 
 
         fall at work or whether it was caused by claimant's congenital 
 
         back condition.  An examination of claimant's myelogram, x-rays, 
 
         EMG and nerve conduction studies did not show any abnormal 
 
         findings or any change after the injury of February 25, 1986 that 
 
         were different from the findings after the earlier injury on 
 
         September 20, 1978 [Exs. 5, 7, 8, 9(1), 9(2), 10 and 11(1)].
 
         
 
              Dr. Margules' testimony was equivocal.  He said there were 
 
         possible changes in the bony structures (Ex. 26, p. 16).  He said 
 
         there was physical anatomical change (Ex. 26, p. 19).  When 
 
         confronted by defendants' counsel on cross examination and asked 
 
         for objective evidence of changes, he admitted that the x-rays 
 
         showed no change in the bony structures, but he performed the 
 
         surgery primarily because of claimant's persistent complaints of 
 
         intolerable pain, which was a subjective standard (Ex. 26, pp. 24 
 
         & 25).
 
         
 
              The turning point on this decision however, is that Dr. 
 
         Margules did answer the question of whether the fall caused the 
 
         surgery in the affirmative (Ex. 26, pp. 18 & 19).  It is clear 
 
         that Dr. Margules intends to say there was a causal connection 
 
         even though his factual basis for it is either equivocal or 
 
         certainly not clearly explained.  Dr. Margules' testimony was not 
 
         controverted, contradicted or rebutted by any other professional 
 
         medical practitioner.  Therefore, even though his opinion is not 
 
         very satisfying, it stands as the only evidence of causal 
 
         connection and he says that the fall caused the surgery (Ex. 26, 
 
         pp. 18 & 19).
 
         
 
              Therefore, it is determined that claimant has sustained the 
 
         burden of proof by a preponderance of the evidence that the 
 
 
 
                          
 
                                                         
 
         surgery was due to the fall of February 25, 1986.  Claimant's 
 
         treating physician, the only physician in this case, said that it 
 
         was a substantial factor.  A cause need only be a substantial 
 
         cause, it need not be the only cause.  Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 360, 154 N.W.2d 128 132 (1967).
 
         Claimant, therefore, is entitled to recover the medical expenses 
 
         for the surgery.
 
         
 
                                 FINDING OF FACT
 
         
 
              WHEREFORE, based upon the evidence presented the following 
 
         finding of fact is made.
 
         
 
              That based upon the traumatic accidental nature of the 
 
         injury, the claimant's fall on February 26, 1986 was the cause of 
 
         five percent additional industrial disability, of the surgery 
 
         performed by Dr. Margules and of the residual effects of the 
 
         major back surgery.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based upon the evidence presented and the 
 
         principles of law previously discussed the following conclusions 
 
         of law are made.
 
         
 
              That the injury of February 25, 1986 was a proximate cause 
 
         of permanent disability and surgery.
 
         
 
              That claimant is entitled to an additional five percent of 
 
         permanent partial disability as industrial disability.
 
         
 
              That claimant is entitled to recover the medical expenses 
 
              of
 
         Medical Anesthesia Associates and Dr. Margules for the back 
 
         surgery.
 
         
 
                                      ORDER
 
              
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That claimant is entitled to an additional five percent of 
 
         permanent partial disability as industrial disability but that 
 
         claimant has already received more than five percent of 
 
         industrial disability from employer and therefore no further 
 
         amounts are due to claimant.
 
         
 
              That defendants pay to claimant or the provider of services 
 
         five hundred twenty-five dollars ($525.00) for anesthesia and 
 
         three thousand one hundred seventy dollars ($3,170.00) for 
 
         physicians care.
 
         
 
              That since it was necessary to make a finding in favor of 
 
         claimant for the payment of his medical expenses, claimant is the 
 
         prevailing party in this action.  Therefore, defendants are to 
 
         pay the costs of this proceeding pursuant to Division of 
 
         Industrial Services Rule 343-4.33 to include one hundred fifty 
 
                                                
 
                                                         
 
         dollars ($150.00) for the deposition of Dr. Margules and one 
 
         hundred twenty-nine dollars ($129.00) for court reporter costs to 
 
         Blair and Associates (Tran. p. 7).
 
         
 
              That defendants file claim activity reports pursuant to 
 
         Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 14th day of March, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            WALTER R. McMANUS, JR.
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon Gallner
 
         Attorney at Law
 
         PO Box 1588
 
         Council Bluffs, Iowa  51502
 
         
 
         Mr. Gregory G. Barntsen
 
         Attorney at Law
 
         370 Midlands Mall
 
         PO Box 249
 
         Council Bluffs, Iowa  51532
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            1108.50; 1402.40; 1402.60;
 
                                            1803; 2501
 
                                            Filed March 14, 1988
 
                                            WALTER R. McMANUS, JR.
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MICHAEL HARMON,
 
         
 
              Claimant,
 
                                                    File No. 818287
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         CONTROL SERVICES, INC.,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         BITUMINOUS INSURANCE CO.
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1108.50; 1402.40; 1402.60; 1803; 2501
 
         
 
              Claimant had a serious congenital back defect and one prior 
 
         work related injury.  Claimant was awarded an additional five 
 
         percent of industrial disability due to surgery from this injury. 
 
         Claimant had already been paid five point four percent by 
 
         defendants.  Claimant did prove, but only by the thinnest margin, 
 
         that the surgery was caused by the injury rather than his 
 
         congenital back condition.
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDY TAYLOR,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 818767
 
            IOWA STATE PENITENTIARY,      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            is affirmed and is adopted as the final agency action in 
 
            this case.
 
            Signed and filed this ____ day of April, 1990.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                             DAVID E. LINQUIST
 
                          INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. James P. Hoffman
 
            Attorney at Law
 
            Middle Road
 
            P.O. Box 1066
 
            Keokuk, Iowa 52632
 
            
 
            Mr. Charles S. Lavorato
 
            Assistant Attorney General
 
            Tort Claims Division
 
            Hoover State Office Building
 
            Des Moines, Iowa 50319
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-9998
 
                                          Filed April 16, 1990
 
                                          DAVID E. LINQUIST
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDY TAYLOR,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 818767
 
            IOWA STATE PENITENTIARY,      :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-9998
 
            Deputy's decision summarily affirmed on appeal.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDY TAYLOR,
 
         
 
              Claimant,                             File No. 818767
 
         
 
         vs.                                     A R B I T R A T I O N
 
                                                 
 
         IOWA STATE PENITENTIARY,                   D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                      JAN 23 1990
 
         STATE OF IOWA,
 
                                                  INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Judy Taylor 
 
         against her employer, Iowa State Penitentiary, and the state of 
 
         Iowa.  The case was heard and fully submitted at Burlington, Iowa 
 
         on July 12, 1989.  The record in the proceeding consists of 
 
         testimony from Judy Taylor and John Emmett as well as claimant's 
 
         exhibits 1 through 46 and defendants' exhibits 1 through 14.
 
         
 
                                      ISSUES
 
         
 
              Claimant seeks compensation for permanent partial disability 
 
         and payment of expenses of medical treatment.  The issues 
 
         presented for determination are:  whether the injury of January 
 
         11 or January 16, 1986 is a proximate cause of any permanent 
 
         disability affecting claimant; determination of the nature and 
 
         extent of any permanent partial disability which has resulted 
 
         from either or the combination of those injuries; determination 
 
         of the medical expenses incurred in treatment of those injuries; 
 
         and, determination of whether claimant is barred from recovering 
 
         expenses of medical treatment due to lack of authorization.  The 
 
         prehearing report appeared to present an issue regarding the rate 
 
         of compensation, but upon reviewing the agency file, it is 
 
         determined that the correct rate of compensation is $246.93 per 
 
         week based upon claimant being single, with only herself as an 
 
         exemption, and with earnings of $428.40 per week as reported on 
 
         the first report of injury.  The employer has paid weekly 
 
         benefits to claimant at the rate of $246.93 per week.  The entry 
 
         in paragraph 6 of the prehearing report is therefore determined 
 
         to be erroneous.  It is determined that the parties intended to 
 
         stipulate to the weekly rate of compensation rather than to gross 
 
         weekly earnings.  The rate is $246.93 per week.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                               SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Judy Taylor is a 46-year-old correctional officer at the 
 
         Iowa State Penitentiary.  In early January of 1986 she was 
 
         assigned to a new job which required her to open and close a 
 
         400-pound steel door.  Claimant stated that on January 11, 1986 
 
         while working with the door she strained her back.  Claimant then 
 
         related that on January 16, 1986 she fell off steps and again 
 
         strained her middle and upper back.  She stated that she injured 
 
         her entire right side.  The employer stipulated that claimant had 
 
         been injured on January 11 and January 16, 1986.
 
         
 
              Claimant reported the injury to the appropriate personnel in 
 
         the employer's business office.  Claimant stated that the 
 
         physicians to whom the employer sent her were not successful in 
 
         resolving her complaints so she went on her own to Ira L. 
 
         Christy, D.C., without authorization from her employer.  Claimant 
 
         stated that the problems did not go away and she eventually 
 
         sought treatment from Koert R. Smith, M.D., a Burlington, Iowa 
 
         orthopaedic surgeon.  Claimant stated that Dr. Smith has placed 
 
         her on arthritis medicine.  Claimant stated that her employer did 
 
         not expressly authorize her to receive treatment from Dr. Smith. 
 
         She stated that she went to him because she needed help from a 
 
         doctor.  At the time of hearing claimant had treated with Dr. 
 
         Smith for approximately two years.  Claimant related that Dr. 
 
         Smith has recommended that she engage in whatever activities she 
 
         can perform without experiencing pain.  She stated that she does 
 
         so.  Claimant stated that the treatment which Dr. Smith has 
 
         provided is similar to what had been provided by physicians to 
 
         whom the employer had directed her.
 
         
 
              Claimant stated that at the present time she experiences 
 
         pain and discomfort in her neck, back and right arm.  Claimant 
 
         stated that she finds it difficult to perform many activities 
 
         which she had performed prior to the injury such as engaging in 
 
         exercise at the "Y", lifting the antique furniture which she 
 
         buys, refinishes and resells, bowling, pulling clothes on or off 
 
         over her head, or when she bends over to pick something up.  
 
         Claimant stated that part of her job requires paperwork and that 
 
         writing makes her entire arm ache.  She stated that she had 
 
         carpal tunnel surgery in November of 1987 from which the right 
 
         arm has not fully recovered. She complained of continuing pain 
 
         and weakness.  Claimant stated that she is right-hand dominant 
 
         and daily activities such as doing her hair cause problems.
 
         
 
              Claimant currently works as a supervisor of food services in 
 
         the penitentiary.  She stated that she has been able to perform 
 
         the job without particular problems, but she doubts her ability 
 
         to physically control or restrain inmates if such should ever be 
 
         necessary.  She stated that being able to do so is part of her 
 
         job.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Prior to commencing employment at the penitentiary, claimant 
 
         had worked for the Department of Social Services and was in 
 
         charge of food stamps and county relief in Keokuk, Iowa.  
 
         Claimant's education includes graduation from high school and 
 
         some college training in the fields of nursing and law 
 
         enforcement.
 
         
 
              John Emmett is the director of security at the Iowa State 
 
         Penitentiary and supervisor of all correctional officers, 
 
         including the claimant.  Emmett stated that claimant is in charge 
 
         of the dining hall and that claimant could be called upon to 
 
         assist in controlling unruly inmates.
 
         
 
              Emmett went on to explain that assignment of correctional 
 
         officers is normally rotated every one or two years and that 
 
         claimant was not moved the last time rotations were conducted.  
 
         He was uncertain if she would be rotated to a different position 
 
         when the next occasion of rotations occurs.
 
         
 
              Emmett described claimant as a good employee with no known 
 
         shortcomings.
 
         
 
              Koert R. Smith, M.D., claimant's most recent primary 
 
         treating physician, was deposed on September 27, 1988.  His 
 
         deposition appears in the record twice.  It is claimant's exhibit 
 
         44 and defendants' exhibit 1.  Dr. Smith testified that he first 
 
         saw claimant on April 8, 1987 on a referral from Dr. Lee, 
 
         claimant's family physician.  He diagnosed her condition as 
 
         chronic cervical, dorsal and lumbar strain (claimant's exhibit 
 
         44, pages 4-7).
 
         
 
              After testing, claimant was diagnosed as having carpal 
 
         tunnel syndrome affecting her right hand.  Carpal tunnel release 
 
         surgery was performed on November 12, 1987.  Dr. Smith does not 
 
         attribute the carpal tunnel syndrome to any work incident.  He 
 
         stated that claimant's back pain is not related to her carpal 
 
         tunnel syndrome, although some neck pain could possibly be 
 
         related to it (claimant's exhibit 44, pages 10, 20 and 21).
 
         
 
              Dr. Smith stated that when he had last seen claimant on 
 
         August 8, 1988, she continued to have neck and back pain.  He 
 
         stated that she has no permanent impairment under the criteria of 
 
         the AMA Guides to the Evaluation of Permanent Impairment, but 
 
         that in his opinion as an orthopaedic surgeon, she has a ten 
 
         percent impairment of function due to the pain.  Dr. Smith stated 
 
         that her pain definitely interferes with her ability to function 
 
         at work and at home.  He has recommended that she restrict her 
 
         activities, particularly activities such as lifting or bending 
 
         repetitively. He has directed her to cease activities which cause 
 
         pain (claimant's exhibit 44, pages 11-14).  Dr. Smith attributed 
 
         claimant's pain and impairment of function to the work injuries 
 
         which are the subject of this proceeding (claimant's exhibit 44, 
 
         page 14).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Smith testified that claimant's complaints could be 
 
         attributable to other conditions such as a peripheral neuropathy, 
 
         systemic arthritis or degenerative disease, but that all of the 
 
         tests which have been conducted have indicated that none of those 
 
         conditions are present and therefore are not likely to be a cause 
 
         of claimant's current complaints (claimant's exhibit 44, pages 
 
         19-23).
 
         
 
              Dr. Smith also stated, however, that he considers claimant's 
 
         complaints to be subjective and that there is really nothing 
 
         objective that he has observed which corroborates claimant's 
 
         complaints of pain (claimant's exhibit 44, page 26).
 
         
 
              In a report dated October 2, 1986, Walid M. Hafez, M.D., 
 
         stated that he had treated claimant and recommended medication 
 
         and conservative treatment.  During the course of treatment he 
 
         had found aching and tenderness, but the diagnostic tests which 
 
         were conducted did not identify any abnormalities (claimant's 
 
         exhibit 1).  On October 14, 1986, Dr. Hafez had indicated that 
 
         claimant should not do any work involving heavy lifting over 10 
 
         pounds or any work where a back strain might occur (claimant's 
 
         exhibit 37, page 70).
 
         
 
              Claimant was also treated by Roubon Mirbegian, M.D.  He 
 
         found her to have inflammation of the muscular tendon tissue in 
 
         her upper back, a condition which he termed as fibrositis 
 
         (claimant's exhibit 2).  When Dr. Mirbegian released claimant to 
 
         return to work on April 3, 1986, he did not impose any 
 
         restrictions (defendants' exhibit 9).  Other than for her 
 
         complaints of pain, all of the findings of his examinations and 
 
         tests were normal (defendants' exhibit 10).
 
         
 
              Claimant stated that since the injury she has needed to 
 
         increase her injections for her diabetic condition from one a day 
 
         to two per day since she is less able to control the condition 
 
         through exercise.  She stated that she has been denied vehicle 
 
         insurance because of her back condition.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of January 11 and January 16, 1986 
 
         are causally related to the disability on which she now bases her 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L. 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).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Dr. Smith is the only one of the physicians whom claimant 
 
         has seen who recommended any permanent activity restrictions or 
 
         found any physical impairment.  It was his opinion that 
 
         claimant's continued pain complaints were causally related to the 
 
         January 1986 injuries which she had related when she commenced 
 
         treatment with him.
 
         
 
              Claimant seeks to recover compensation for permanent partial 
 
         disability.  In order to do so, she must prove, by a 
 
         preponderance of the evidence, that she has sustained some 
 
         permanent impairment of her earning capacity as a result of the 
 
         January 1986 injuries. Pain which is unsubstantiated by clinical 
 
         findings is not a substitute for impairment.  Waller v. 
 
         Chamberlain Mfg., II Iowa Industrial Commissioner Report 419, 425 
 
         (1981).  It is not necessary for there to be a finding of 
 
         physical impairment under the criteria of the AMA guides for 
 
         there to be an award of permanent partial disability compensation 
 
         when dealing with an injury to the body as a whole.  The rating 
 
         system is somewhat arbitrary and does not take into account 
 
         limitations which result from pain.  As noted by Dr. Smith, that 
 
         method of rating impairment does have certain shortcomings.  Dr. 
 
         Smith expressed his own professional opinion that claimant has a 
 
         ten percent impairment of her function as a result of her pain 
 
         complaints.  He has imposed activity restrictions consistent with 
 
         those complaints.  Testimony of the type which he has provided is 
 
         certainly a valid alternative to the AMA guides.  The problem 
 
         with claimant's case, however, is that Dr. Smith has not 
 
         identified any particular physiological abnormality or stated 
 
         that any physiological abnormality exists.  He stated that there 
 
         is no objective corroboration for claimant's complaints of pain. 
 
         Claimant's appearance and demeanor as she testified was observed 
 
         and she is determined to be a credible witness.  The undersigned 
 
         finds the symptoms which she described to be real.  As indicated 
 
         in the previously-cited case, however, symptoms for which there 
 
         is no identified physiological basis do not justify an award of 
 
         permanent partial disability compensation.
 
         
 
              In the typical case, an injury produces some identifiable 
 
         physiological abnormality.  Symptoms or complaints of pain can 
 
         then be attributed to a known physiological abnormality.  When 
 
         such occurs, the causal connection is established.  A case such 
 
         as this, however, is lacking an identified physiological 
 
         abnormality. When there is no known physiological abnormality, it 
 
         is difficult to relate any particular symptom to any particular 
 
         incident of trauma.  In this case, the only evidence which 
 
         relates claimant's symptoms to the January 1986 injuries is her 
 
         own testimony.  Even though claimant's credibility on the subject 
 
         of her pain is not subject to serious question, the existence of 
 
         pain without supportive clinical findings is no substitute for 
 
         impairment and cannot justify an award of permanent partial 
 
         disability compensation.  Cooper v. Iowa Meat Processing & John 
 
         Morrell, file numbers 832042 and 832043 (Arb. Decns. May 19, 
 
         1988).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant has not experienced any change in her actual 
 
         earnings.  Her employer has continued to make work available to 
 
         her.  An award of disability cannot be made in this case based 
 
         upon any change in her work or actual earnings.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348 (Iowa 1980); McSpadden v. Big 
 
         Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              Iowa Code section 85.27 places a duty upon an employer to 
 
         provide prompt, reasonable treatment to an injured employee.  It 
 
         also gives that employer the right to select the providers of 
 
         treatment services.  Generally, if an injured employee does not 
 
         make use of the employer-provided services, the employee is not 
 
         entitled to recover expenses incurred with other sources of 
 
         medical treatment.  There are some exceptions; however, none of 
 
         those exceptions are found to be applicable in this case.  When 
 
         the record is reviewed as a whole, it does not appear that 
 
         claimant's condition has been substantially improved by any of 
 
         the treatment which Dr. Smith has provided.  Her symptoms and 
 
         complaints appear to be essentially the same as they were when 
 
         she commenced treatment with him.  Further, Dr. Smith's treatment 
 
         was not particularly dissimilar from that which was provided by 
 
         the employer-chosen physicians.  Finally, there is no showing in 
 
         the record that claimant requested alternate treatment from the 
 
         employer or that she made the employer aware that she considered 
 
         the treatment from the employer-selected physicians to have been 
 
         ineffective.  The facts of this case are not such as to render 
 
         the employer responsible for payment of the expenses of 
 
         unauthorized medical treatment.  Richards v. Dept of Gen. Servs., 
 
         Vol. 1, No. 3, State of Iowa Industrial Commissioner Decisions 
 
         684 (App. Decn. March 28, 1985); Butcher v. Valley Sheet Metal, 
 
         IV Iowa Industrial commissioner Report 49 (App. Decn. 1983).  
 
         Claimant is therefore not entitled to recover the expenses of 
 
         unauthorized treatment with Dr. Smith or Dr. Christy.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Judy Taylor experiences pain in her neck and back which 
 
         has been present since she was injured at work in early January 
 
         of 1986.
 
         
 
              2.  Her orthopaedic surgeon, Koert R. Smith, M.D., 
 
         attributes the pain to those injuries.
 
         
 
              3.  Neither Dr. Smith nor any other physician has identified 
 
         any particular physiological abnormality which provides an 
 
         objective basis for the complaints of pain.
 
         
 
              4.  The employer had provided claimant with reasonable 
 
         medical treatment.
 
              
 
              5.  Claimant had not expressed to her employer any 
 
         dissatisfaction with the employer-provided treatment.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              1. This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
              
 
              2.  Claimant has failed to prove an entitlement to 
 
         compensation for permanent partial disability because she has 
 
         failed to demonstrate the existence of any permanent 
 
         physiological abnormality which resulted from the January 1986 
 
         injuries.
 
         
 
              3.  Claimant's employer is not responsible for payment of 
 
         the costs of medical treatment which she incurred with Koert R. 
 
         Smith, M.D., or with Christy Chiropractic Clinic.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that claimant take nothing from this 
 
         proceeding.
 
         
 
              IT IS FURTHER ORDERED that the costs of this proceeding are 
 
         assessed against the claimant pursuant to Division of Industrial 
 
         Services Rule 343-4.3
 
         
 
              Signed and filed this 23rd day of January, 1990.
 
         
 
         
 
         
 
         
 
         
 
                                            MICHAEL G. TRIER
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. James P. Hoffman
 
         Attorney at Law
 
         Middle Road
 
         P.O. Box 1066
 
         Keokuk, Iowa  52632
 
         
 
         Mr. Charles S. Lavorato
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa  50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                            
 
 
 
 
 
 
 
 
 
 
 
                                            1402.40, 1803, 2503
 
                                            Filed January 23, 1990
 
                                            MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDY TAYLOR,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                    File No. 818767
 
         IOWA STATE PENITENTIARY,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
              Claimant sustained injuries at work which the employer 
 
         admitted.  She was treated by the employer-selected physicians, 
 
         released and returned to work.
 
         
 
         2503
 
         
 
              Claimant then entered into a course of treatment with other 
 
         physicians on her own, without notifying the employer of her 
 
         dissatisfaction with the employer-chosen physicians.  The record 
 
         did not show that the unauthorized treatment had improved 
 
         claimant's condition.  It was therefore held that the defense of 
 
         lack of authorization was established and the employer was 
 
         relieved from responsibility for payment of the expenses of the 
 
         unauthorized treatment.
 
         
 
         1402.40, 1803
 
         
 
              Claimant's complaints were found to be credible and were 
 
         relied upon by her orthopaedic surgeon.for assigning an 
 
         impairment rating of ten percent of.the body as a whole based 
 
         upon his experience as an orthopaedic surgeon.  He acknowledged 
 
         that under the criteria of the AMA guides, the impairment rating 
 
         would be zero.  The doctor expressed the opinion that the 
 
         continued pain and impairment was causally connected to the 
 
         original injuries. The record contained no identified physical 
 
         abnormality, however, which had resulted from those original 
 
         injuries.  It was therefore held that there was no objective 
 
         corroboration for claimant's complaints of pain and no permanent 
 
         partial disability was awarded.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD J. SEYDEL,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                 File No. 818849
 
         
 
         U OF I PHYSICAL PLANT,
 
                                                 A P P E A L
 
         
 
              Employer,
 
                                                 D E C I S I 0 N
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
         
 
              Defendants.
 
         
 
                              STATEMENT OF THE CASE
 
                                        
 
              Defendants appeal from an arbitration decision awarding 
 
         temporary total disability benefits as the result of an alleged 
 
         injury on July 14, 1985.  The record on appeal consists of the 
 
         transcript of the arbitration proceeding and joint exhibits 1 
 
         through 15.  Both parties filed briefs on appeal.
 
         
 
                                      ISSUES
 
                                        
 
              Defendants state the following issues on appeal:
 
         
 
              1. Whether the Deputy Industrial Commissioner erred by 
 
              applying an incorrect legal standard in determining that 
 
              claimants were entitled to a penalty under s 86.13.
 
              
 
              2. Whether under the facts presented under this record 
 
              support a penalty under S 86.13.
 
         
 
                              REVIEW OF THE EVIDENCE
 
                                        
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be set forth herein.
 
         
 
         
 
         
 
         SEYDEL v. U OF I PHYSICAL PLANT
 
         Page 2
 
         
 
         
 
                                  APPLICABLE LAW
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                        
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and the evidence.  The following 
 
         authority is also noted:
 
         
 
              Section 86.13, unnumbered paragraph four states:
 
         
 
                 If a delay in commencement or termination of benefits 
 
              occurs without reasonable or probable cause or excuse, the 
 
              industrial commissioner shall award benefits in addition to 
 
              those benefits payable under this chapter, or chapter 85, 
 
              85A, or 85B, up to fifty percent of the amount of benefits 
 
              that were unreasonably delayed or denied.
 
              
 
                                     ANALYSIS
 
                                        
 
              On appeal, the issues address whether the penalty imposed by 
 
         the deputy against the defendants was appropriate.  Claimant's 
 
         date of injury was July 14, 1985.  Claimant testified he 
 
         immediately reported the pain he was experiencing to his 
 
         supervisor.  Exhibit 5 is an accident report on this incident, 
 
         which shows a filing date of July 14, 1985.  Claimant later 
 
         inquired at the university staff benefits office about the matter 
 
         in November 1985.
 
         
 
              Defendants assert that denial of payment was appropriate 
 
         because a reasonable debate existed as to whether claimant had 
 
         given the employer proper notice under section 85.23.  Defendants 
 
         offered the testimony of claimant's supervisor who stated that 
 
         although he recalls claimant asking to take a break on the date 
 
         in question, he has no recollection of claimant mentioning he was 
 
         in pain.  The supervisor testified he would have asked claimant 
 
         if he wanted to see a doctor and investigated the matter further 
 
         if claimant had indicated he was experiencing pain.  The 
 
         supervisor also denied any recollection of the accident report.
 
         
 
              Claimant obtained a copy of the accident report through 
 
         discovery of defendants, records.  Defendants imply that the 
 
         report was backdated and somehow surreptitiously placed in 
 
         claimant's personnel file.  However, absolutely no evidence to 
 
         support this contention was offered.  There is no indication that 
 
         claimant had access to his personnel file.  Exhibit 14 is an 
 
         affidavit of Thomas Hart, indicating that the accident report 
 
         appeared in the personnel file as of August 8, 1986.
 
         
 
         
 
         
 
         SEYDEL v. U OF I PHYSICAL PLANT
 
         Page 3
 
         
 
         
 
              In addition, the record shows that claimant was never 
 
         advised why his benefits were not being paid.  Defendants did not 
 
         offer any evidence establishing why benefits were not paid.  
 
         Although defendants, in their appeal brief, assert that benefits 
 
         were not paid because of a reasonable dispute over notice under 
 
         section 85.23, the sole witness for defendants did not confirm 
 
         that this was the reason for nonpayment.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant's testimony that he filed an accident report 
 
         immediately is controverted only by his supervisor's testimony, 
 
         which merely states the supervisor does not recall the filing.  
 
         Claimant's testimony is corroborated by the presence of exhibit 5 
 
         in defendants' own file.  There is no evidence that exhibit 5 is 
 
         the product of fabrication.
 
         
 
              Thus, defendants have failed to show a reasonable dispute as 
 
         to lack of notice under section 85.23.  Defendants have also 
 
         failed to show a reasonable dispute over any other aspect of 
 
         claimant's entitlement for benefits.  The deputy's imposition of 
 
         a 50 percent penalty is appropriate.
 
         
 
              Iowa Code section 86.13 provides the appropriate standard 
 
         for determining whether a penalty should be imposed.  It is not 
 
         necessary to look to either Iowa Code chapter 507B or the law of 
 
         any other jurisdiction to make this determination.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
              1.  On July 14, 1985 claimant suffered an injury to the 
 
         lower left abdomen which arose out of and in the course of 
 
         employment with University of Iowa which either caused or 
 
         aggravated a hernia condition necessitating hernia surgical 
 
         repair on November 28, 1985.  Claimant had no abdominal pain 
 
         prior to July 14, 1985.
 
         
 
              2.  Two or three days after July 14, 1985, at the request of 
 
         claimant's supervisor, claimant submitted a written report of 
 
         injury to defendants of the July 14, 1985 injury which was given 
 
         by claimant to his supervisor which ultimately became a part of 
 
         claimant's personnel records at the University of Iowa.
 
         
 
              3.  The work injury of July 14, 1985 was a cause of a period 
 
         of temporary disability from work beginning on November 27, 1985 
 
         through January 12, 1986, at which time claimant returned to 
 
         work.
 
         
 
              4.  Claimant's gross weekly earnings on July 14, 1985 was 
 
         $215.38 per week.
 
         
 
         
 
         SEYDEL v. U OF I PHYSICAL PLANT
 
         Page 4
 
         
 
         
 
              5. The work injury of July 14, 1985 was a cause of 
 
         reasonable medical expenses in the amount of $3,033.40.
 
         
 
              6. Defendants denied claimant's claim for weekly 
 
         compensation benefits and delayed commencement of those benefits 
 
         without reasonable or probable cause or excuse.
 
         
 
              7. Claimant received no written or oral notice prior to the 
 
         institution of litigation as to the reasons, if any, for the 
 
         denial of his claim by the state of Iowa.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                CONCLUSION OF LAW
 
                                        
 
              Defendants were properly assessed a 50 percent penalty under 
 
         Iowa Code section 86.13.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
                                        
 
              THEREFORE, it is ordered:
 
         
 
              That defendants shall pay to claimant temporary total 
 
         disability benefits from November 27, 1985 through January 12, 
 
         1986 at the rate of one hundred forty-three and 12/100 dollars 
 
         ($143.12) per week.
 
         
 
              That defendants shall pay claimant the sum of three thousand 
 
         thirty-three and 40/100 dollars ($3,033.40) as reimbursement for 
 
         reasonable medical expenses.
 
         
 
              That defendants shall, in addition, pay penalty benefits in 
 
         the total amount of three point three six (3.36) weeks at the 
 
         rate of one hundred forty-three and 12/100 dollars ($143.12) per 
 
         week from November 27, 1985.
 
         
 
              That defendants shall pay all accrued weekly benefits in a 
 
         lump sum.
 
         
 
              That defendants shall pay interest on weekly benefits 
 
         awarded herein as set forth in Iowa Code section 85.30.
 
         
 
              That defendants shall pay the costs of this action pursuant 
 
         to Division of Industrial Services Rule 343-4.33 and specifically 
 
         defendants shall be taxed the sum of one hundred and 00/100 
 
         dollars ($100.00) for the medical reports of Drs.  Shimp and Tung 
 
         as requested in the prehearing report.
 
         
 
              Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
         
 
         SEYDEL v. U OF I PHYSICAL PLANT
 
         Page 5
 
         
 
         
 
         Signed and filed this 1st day of November, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Mr. Steven E. Howes
 
         Mr. Brian L. Gruhn
 
         Attorneys at Law
 
         4089 21st Ave. S.W., Suite 114
 
         Cedar Rapids, Iowa 52404
 
         
 
         Mr. Charles S. Lavorato
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                                                                              4000.2
 
                                                 Filed November 1, 1989
 
                                                 DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD J. SEYDEL,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                                 File No. 818849
 
         
 
         U OF I PHYSICAL PLANT,
 
                                                 A P P E A L
 
         
 
              Employer,
 
                                                 D E C I S I 0 N
 
         and
 
         STATE OF  IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         4000.2
 
         
 
              Deputy's award of 50 percent 86.13 penalty affirmed where 
 
         claimant's testimony that an injury report was promptly filed was 
 
         corroborated by the presence of the report in the employer's 
 
         file, and contradicted only by a supervisor's lack of 
 
         recollection of the report.  Withholding benefits based on an 
 
         alleged dispute over timely notice of the injury was held to be 
 
         unreasonable when the employer had contrary proof in its own 
 
         records.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD J. SEYDEL,
 
         
 
              Claimant,
 
                                                     FILE NO. 818849
 
         vs.
 
                                                  A R B I T R A T I 0 N
 
         U OF I PHYSICAL PLANT,
 
                                                     D E C I S I O N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Donald J. 
 
         Seydel, claimant, against the University of Iowa Physical Plant, 
 
         an agency of the State of Iowa, employer (hereinafter referred to 
 
         as the State), for workers' compensation benefits as a result of 
 
         an alleged injury on July 14, 1985.  On January 12, 1988, a 
 
         hearing was held on claimant's petition and the matter was 
 
         considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and John 
 
         William Joyner.  The exhibits received into the evidence at the 
 
         hearing are listed in the prehearing report.  According to the 
 
         prehearing report, the parties have stipulated to the following 
 
         matters:
 
         
 
              1.  If defendants are held liable for the alleged work 
 
         injury, claimant is entitled to temporary total disability 
 
         benefits from November 27, 1985 through January 12, 1986.  
 
         Claimant is not seeking permanent disability benefits in this 
 
         proceeding.
 
         
 
              2.  In determining the rate of weekly compensation under the 
 
         Iowa Industrial Commissioner's Benefit Schedule for this injury, 
 
         claimant is entitled to marital status and two exemptions under 
 
         the schedule.  Claimant's rate of gross weekly compensation was 
 
         in dispute.
 
         
 
              3.  The medical bills submitted by claimant at hearing 
 
         were fair and reasonable and causally connected to the hernia 
 
         condition upon which the claim herein is based, but that the 
 

 
         
 
         
 
         
 
         SEYDEL V. U OF I PHYSICAL PLANT
 
         Page   2
 
         
 
         issue of the causal connection of the hernia to any work injury 
 
         remained an issue to be decided herein.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding:
 
         
 
              I.  Whether claimant received an injury arising out of and 
 
         in the course of his employment at the University of Iowa;
 
         
 
             II.  Whether claimant has complied with the notice provisions 
 
         of Iowa Code section 85.23;
 
         
 
            III.  Whether there is a causal relationship between the work 
 
         injury and the claimed disability;
 
         
 
             IV.  The rate of compensation to which claimant is entitled;
 
         
 
              V.  The extent of claimant's entitlement to medical benefits 
 
         under Iowa Code section 85.27; and,
 
         
 
             VI.  The extent of claimant's entitlement to any additional 
 
         benefits under Iowa Code section 86.13 for an unreasonable delay 
 
         in denying or saying benefits.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  For the sake of brevity, only the evidence most pertinent 
 
         to this decision is discussed.  Whether or not specifically 
 
         referred to in this summary, all of the evidence received at the 
 
         hearing was considered in arriving at this decision.  As will be 
 
         the case in any attempted summarization, conclusions about what 
 
         the evidence offered may show are inevitable.  Such conclusions, 
 
         if any, in the following summary should be considered as 
 
         preliminary findings of fact.
 
         
 
              Claimant testified that he had been working for the 
 
         University of Iowa Physical Plant for approximately two years at 
 
         the time of the alleged injury.  Claimant was a custodian who 
 
         performed duties consisting of vacuuming floors and general 
 
         cleaning.  According to exhibit 6, at the time of the alleged 
 
         injury, claimant was earning an annual gross "budget" salary of  
 
         $11,200 or $215.38 per week.  According to exhibit 8 and 
 
         claimant's testimony, claimant worked overtime and received a 
 
         shift differential in addition to his budget salary.  Despite his 
 
         variable earnings, no evidence was offered as to claimant's 
 
         actual earnings in the 13 week period prior to the alleged 
 
         injury.
 
         
 
              The facts surrounding the work injury are in dispute.  
 
         Claimant testified that at the time of the alleged injury he, 
 
         along with two other custodians, was asked to perform a special 
 
         project consisting of refinishing the basketball court in the 
 
         Carver-Hawkeye Arena at the University of Iowa.  This work 
 
         involved stripping off of old finish using modified buffing 
 
         machines containing a rotating abrasive disc.  These machines 
 
         were hand held and required considerable effort to move them 
 
         about the basketball floor using upper extremities and the upper 
 

 
         
 
         
 
         
 
         SEYDEL V. U OF I PHYSICAL PLANT
 
         Page   3
 
         
 
         body torso.  After working on this refinishing project 
 
         approximately one and a half hours during the morning of July 14, 
 
         1985, claimant said that he felt a sharp pain in the left side of 
 
         his abdomen which lasted approximately two minutes.  At that time 
 
         claimant said that he stopped his machine.  After inquiry by his 
 
         supervisor as to why he stopped working, claimant said that he 
 
         informed his supervisor of the pain and was told to take a 
 
         cigarette break.  After a few minutes of break time, claimant 
 
         stated that the pain went away and he resumed working.  Claimant 
 
         said that he experienced no other problems the rest of that 
 
         morning and most of the afternoon but the pain reoccurred 
 
         following the afternoon break.  Again, claimant said that he 
 
         stopped working and was told by his supervisor to take another 
 
         break.  Claimant said that the pain again ended during his break 
 
         and he resumed his work.  Claimant was on overtime while 
 
         performing the refinishing work and he testified that he then 
 
         completed his regular shift on the day of the injury without 
 
         incident.
 
         
 
              Claimant testified that he continued to experience problems 
 
         after June 14, 1985, while performing his regular work as a 
 
         custodian.  These problems involved pain in the lower left 
 
         abdomen area.  Claimant denied having any similar type of pain 
 
         prior to July 14, 1985.  Claimant said that emptying trash bins 
 
         weighing anywhere from 20 to 200 pounds and carrying his vacuum 
 
         cleaner when the elevator broke down caused him particular 
 
         problems.  Claimant said that the pain gradually worsened but 
 
         that he did not seek medical attention as it was not a constant 
 
         pain and he was unsure as to the cause.  Finally in September, 
 
         1985, claimant was given a routine occupational health screening 
 
         evaluation by a University of Iowa physician due to claimant's 
 
         handling of chemicals in his job.  During this screening process 
 
         claimant was asked to blow into an inhaler device but experienced 
 
         difficulty with this test due to abdominal pain.  The University 
 
         of Iowa physician advised claimant that he may have a hernia and 
 
         referred him to his family physician.  Claimant then sought an 
 
         evaluation from C. S. Shimp, D.O., on October 28, 1985.  Dr. 
 
         Shimp felt that claimant did have a hernia which required a 
 
         repair.  Claimant had reported to Dr. Shimp at that time that he 
 
         had abdominal pains for the last six months.  Claimant was then 
 
         referred by Dr. Shimp to Dr. Tung, M.D., (first name unknown), 
 
         for surgery following a second opinion from Dr. Anderson (first 
 
         name unknown), which confirmed the presence of claimant's hernia.  
 
         Dr. Tung performed a hernia repair in November, 1985, and 
 
         claimant was off work recovering from this surgery until January, 
 
         1986.
 
         
 
              Claimant's supervisor, John Joyner, testified that he was 
 
         not aware of any workers' compensation claim for the hernia or 
 
         any injury on July 14, 1985 until November, 1985.  Claimant 
 
         testified that two or three days after the incident, he was given 
 
         an accident report form by Joyner which he completed and returned 
 
         to Joyner, exhibit 5, which contains his signature and indicates 
 
         a date of injury of July 14, 1985.  Joyner testified in response 
 
         that he did not feel that this exhibit was submitted by claimant 
 
         to him or to anyone at the University of Iowa until after his 
 
         surgery in November, 1985, although he admitted it was the same 
 
         type of form that he requests workers to fill out when they 
 
         report a claim.  Joyner testified that he had a phone call in 
 
         November of 1985, from Al Young who has some personnel 
 

 
         
 
         
 
         
 
         SEYDEL V. U OF I PHYSICAL PLANT
 
         Page   4
 
         
 
         responsibilities at the University.  This Al Young reported to 
 
         Joyner that claimant had been in the office after this surgery 
 
         inquiring as to why the medical expenses for the hernia repair 
 
         were not paid.  Joyner denied any recollection of the events as 
 
         described by claimant on July 14, 1985 and denies furnishing or 
 
         receiving any sort of written notice of the accident report.  
 
         Joyner verified that claimant was performing the refinishing work 
 
         in July, 1985.  Claimant testified that when he notified Joyner 
 
         that he was having hernia surgery, he also informed Joyner that 
 
         Dr. Tung had stated that the hernia was work related.  Again, 
 
         Joyner denies being told such information.
 
         
 
              It should be noted that there was no evidence, other than 
 
         the testimony of Joyner, as to the specific reasons why the claim 
 
         was denied by the State before litigation was pursued by 
 
         claimant.  Exhibit 12 indicates that Joyner is not the person who 
 
         decides whether or not to pay a workers' compensation claim.  The 
 
         person or persons who make such decisions did not testify or 
 
         otherwise provide evidence as to the reasons, if any, for the 
 
         denial.
 
         
 
              According to an affidavit from a Tom Hart, a union steward, 
 
         Hart found exhibit 5 in claimant's personnel file on August 8, 
 
         1986 and stated that he was unaware of the reasons why claimantOs 
 
         claim was being denied for a failure to file timely notice of his 
 
         injury.
 
         
 
              The only causal connection opinion in the record of this 
 
         case is from Dr. Tung who states that from the history provided 
 
         to him by claimant of the July 14, 1985 incident and from 
 
         claimant's description of the work he performed at the University 
 
         of Iowa, it was his opinion that the incident and claimant's work 
 
         either caused or aggravated the hernia condition which he 
 
         repaired in November, 1985.
 
         
 
              Claimant's appearance and demeanor at the hearing indicated 
 
         he was testifying in a candid and truthful manner.  From his 
 
         demeanor and mannerisms while testifying at hearing, the 
 
         supervisor, Joyner, did not appear to be a credible witness.
 
                           
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              I.  Claimant has the burden of proving by a preponderance of 
 
         the evidence that claimant received an injury which arose out of 
 
         and in the course of employment.  The words "out of" refer to the 
 
         cause or source of the injury.  The words "in the course of" 
 
         refer to the time and place and circumstances of the,injury.  
 
         See Cedar Rapids Community Sch. v. Cady, 278 N.W.2d 298 (Iowa 
 
         1979); Crowe v. DeSoto Consol. Sch.Dist., 246 Iowa 402, 68 N.W.2d 
 
         63 (1955) An employer takes an employee subject to any active of 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960) and cases cited therein.
 
         
 
              Claimant's credible testimony and the existence of exhibit 
 
         5, the written notice, clearly establishes that he suffered a 
 
         work injury on July 14, 1985.  As there was no benefits claimed 
 
         or loss time at the time of this incident, it is certainly not 
 
         unusual for claimant's supervisor to forget that the incident 
 
         happened.
 

 
         
 
         
 
         
 
         SEYDEL V. U OF I PHYSICAL PLANT
 
         Page   5
 
         
 
         
 
              II.  Iowa Code section 85.23 requires that claimants must 
 
         report their injuries within 90 days to be compensable.  Little 
 
         need be said as to this issue as claimant's credible testimony 
 
         and exhibit 5 rather clearly shows that claimant complied with 
 
         this notice requirement.
 
         
 
              III.  The claimant has the burden of proving by a 
 
         preponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded without a showing of a causal connection to a 
 
         physical change of condition.  Blacksmith v. All-American, Inc., 
 
         290 N.W.2d 348, 354 (Iowa 1980); McSpadden v. Big Ben Coal 
 
         Co.,288 N.W.2d 181 (Iowa 1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such 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 v. Fischer, Inc., 257 Iowa 
 
         516, 133 N.W.2d 867 (1965).
 
         
 
             Furthermore, if the available expert testimony is 
 
         insufficient alone to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award.  Giere v. Aase 
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant established the 
 
         truthfulness of the history he provided to Dr. Tung and Dr. 
 
         Tung's causal connection opinion is uncontroverted.  Therefore, 
 
         claimant has clearly established that his hernia condition was 
 
         the result of the incident on July 14, 1985.  Given this finding, 
 
         claimant will be awarded the temporary total disability for the 
 
         period of time stipulated in the prehearing report.
 
         
 
              IV.  With reference to the rate of compensation, claimant's 
 

 
         
 
         
 
         
 
         SEYDEL V. U OF I PHYSICAL PLANT
 
         Page   6
 
         
 
         customary gross weekly earnings consisted of his annual salary 
 
         divided by 52 or $215.38 per week.  Although claimant may have 
 
         earned more than this amount due to shift differentials and 
 
         overtime work, insufficient evidence was submitted to arrive at 
 
         any accurate findings of earnings in excess of claimant's 
 
         customary earnings.  Therefore, pursuant to Iowa Code section 
 
         85.36, it will be found that claimant's gross weekly rate of 
 
         compensation is $215.38 per week.  Based upon the benefit 
 
         schedule published by the Iowa Industrial Commissioner for an 
 
         injury on July 14, 1985, claimant is entitled as a matter of law 
 
         to a rate of compensation in the amount of $143.12 per week.
 
         
 
              V.  With reference to claimant's entitlement to medical 
 
         benefits, given the parties' stipulations, the finding that the 
 
         hernia condition was causally connected to a work injury resolves 
 
         the medical benefits entitlement issue and the sums listed in the 
 
         prehearing report will be awarded to claimant.
 
         
 
              VI.  Claimant finally seeks additional workers' compensation 
 
         benefits under Iowa Code section 86.13 for a delay in 
 
         commencement of benefits without reasonable or probable cause or 
 
         excuse.  Research of the matter indicates that the precise legal 
 
         tests to be utilized in applying the statutory language of Iowa 
 
         Code section 86.13 is the matter of first impression to this 
 
         agency.  Although the case at bar is an administrative proceeding 
 
         for statutory benefits, guidance can be gleaned from Iowa Supreme 
 
         Court decisions in similar matters involving actions against 
 
         insurance carriers for a "bad faith" denial of an insurance claim 
 
         in the law of torts.  Pirkl v. Northwest Mutual Insurance 
 
         Association, 348 N.W.2d 633 (Iowa 1984); Higgins v. Blue Cross, 
 
         319 N.W. 2d 232, 236 (Iowa 1984); M-Z Enterprises, Inc. v. 
 
         Hawkeye-Security Insurance Company, 318 N.W.2d 408, 414-15 (Iowa 
 
         1982).  In Higgins, although the Iowa Supreme Court denied the 
 
         opportunity to create a separate cause of action in this state 
 
         for bad faith denial of a claim, the court stated that in those 
 
         states which recognized such a cause of action, in order to 
 
         prevail, the insured must show the absence of a reasonable basis 
 
         for denying benefits of the policy and the insurer's knowledge or 
 
         reckless disregard of the lack of reasonable basis for denying 
 
         the claim.  "When the claim is 'fairly debatable' the insurer is 
 
         entitled to debate it, whether the debate concerns a matter of 
 
         fact or law." Id at 415.
 
         
 
              Application of the bad faith theory in an administrative 
 
         environment involving workers' compensation benefits was recently 
 
         dealt with by the Wisconsin Supreme Court who does recognize a 
 
         cause of action for bad faith in the law of torts and who 
 
         instructed their Wisconsin hearing officers as follows in 
 
         applying its own statutory bad faith provisions in their workers' 
 
         compensation statute:
 
         
 
                 As we read sec. 102.18(l)(bp), Stats., the issue of 
 
              bad faith is reached only after a final award has been 
 
              made to the claimant.  A hearing examiner then examines 
 
              the record to determine if there was any credible 
 
              evidence which would demonstrate that the claim was 
 
              fairly debatable.  If the examiner finds that there is 
 
              no credible evidence which the employer or insurer 
 
              could rely upon to conclude that the claim was fairly 
 
              debatable, the examiner then determines if the 
 

 
         
 
         
 
         
 
         SEYDEL V. U OF I PHYSICAL PLANT
 
         Page   7
 
         
 
              employer's or insurer's actions in denying payment were 
 
              reasonable.  This test is an objective one from the 
 
              standpoint of the employer or insurer.  Would a 
 
              reasonable employer or insurer under like or similar 
 
              circumstances have denied or delayed payment on the 
 
              claim.
 
         
 
                 When deciding whether the employer's actions were 
 
              reasonable, it is necessary to determine if the claim 
 
              was properly investigated and if the results of the 
 
              investigation were subject to a reasonable evaluation 
 
              and review.  Anderson, 85 Wis.2d at 692, 271 N.W.2d at 
 
              377.  The examiner must base the decision on the 
 
              information or data that the employer or insurer had in 
 
              its possession at the time the claim for benefits was 
 
              denied and how that information was used.
 
         
 
              This deputy commissioner believes that the Wisconsin rule as 
 
         set forth above is a very useful, objective and logical approach 
 
         to identifying unreasonable conduct and such an approach will be 
 
         applied in this case.  Furthermore, because we are dealing with a 
 
         self-insured in this case, this deputy commissioner is of the 
 
         opinion that the State, as well as other self-insureds, should 
 
         conform to the same standard of conduct that is expected of 
 
         private insurance carriers in their claims practices.  Therefore, 
 
         Iowa Code section 507B.4(9) which contains a list of unfair 
 
         claims insurance practices is a helpful additional tool in 
 

 
         
 
         
 
         
 
         SEYDEL V. U OF I PHYSICAL PLANT
 
         Page   8
 
         
 
         assessing the reasonableness of the claim activity in this case.
 
         
 
              The first question, under the Wisconsin approach, is whether 
 
         there is any credible evidence which would demonstrate that the 
 
         claim is fairly debatable.  In the opinion of this deputy, a 
 
         medical opinion becomes fairly debatable when countered by 
 
         another medical opinion.  Likewise, an account of an occurrence 
 
         of an injury can be fairly disputed by a conflicting description 
 
         by an eye witness or circumstantial evidence.  In the case sub 
 
         judice, no legal or factual issue has been shown to be fairly 
 
         debatable.  The only medical opinion offered into the evidence 
 
         supports the claimant's causal connection contentions.  The only 
 
         contrary evidence of claimant's account of the events of July 14, 
 
         1985, was Joyner's incredible lack of recollection which was 
 
         directly refuted by the state's own written personnel records.
 
         
 
              The next question is whether the State acted reasonably from 
 
         an objective standpoint.  It does not appear that there was an 
 
         attempt to properly investigate this claim.  Although the 
 
         supervisor denied in writing any recollection of the injury or a 
 
         report of injury, blind acceptance of this account in the face of 
 
         claimant's written notice of injury on file in the State's own 
 
         personnel records is rather clear evidence that the State did not 
 
         perform a simple, basic, first step in investigating this claim 
 
         i.e., an examination of its records.  Furthermore, the claim that 
 
         this notice was somehow not authentic or in some fashion 
 
         improperly or surreptitiously placed into the file by claimant 
 
         after his surgery is mere speculation on the part of state 
 
         officials without a shred of supportive evidence.
 
         
 
              Given the relatively small amount of the claim, the State's 
 
         position in this case is even more untenable.  Also, it would 
 
         appear that at no time before claimant was compelled to initiate 
 
         litigation did he ever receive a reasonably prompt explanation of 
 
         the specific reasons, if any, for denying the claim.  Claimant 
 
         was apparently forced to guess, as was this deputy commissioner, 
 
         as to the reasons for the denial before litigation by those 
 
         charged with that responsibility.  Finally, the State's actions 
 
         in this matter would constitute several unfair claims practices 
 
         under Iowa Code section 507B.4(9) with reference to its 
 
         unreasonable investigation; failure to promptly communicate the 
 
         denial of coverage, failure to provide a reasonable basis for 
 
         denial of the claim before litigation was instituted and a 
 
         failure to settle this matter after liability for the claim 
 
         became reasonably clear.
 
              Therefore, the uncontroverted medical opinion of Dr. Tung; 
 
         the existence of a timely report of injury in defendants' own 
 
         records; the State's shoddy investigation; the State's position 
 
         with reference to its own records; and, the failure of the State 
 
         to promptly provide a reasonable explanation for denying the 
 
         claim and the relative minor nature of the claim establishes by a 
 
         preponderance of the evidence the State's reckless disregard of 
 
         claimant's statutory rights to workers' compensation benefits.
 
         
 
              Given the amounts involved, the maximum penalty consisting 
 
         of 50 percent of claimant's entitlement to weekly compensation 
 
         benefits is reasonable for this case.  Penalty benefits cannot be 
 
         awarded under Iowa Code section 86.13 for an unreasonable delay 
 
         in the payment of medical benefits.  Klein v. Furnas Elec. Co., 
 
         384 N.W.2d 370, 375 (Iowa 1986).
 

 
         
 
         
 
         
 
         SEYDEL V. U OF I PHYSICAL PLANT
 
         Page   9
 
         
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.  Claimant's supervisor, 
 
         Joyner, was not a credible witness.
 
         
 
              2.  On July 14, 1985, claimant suffered an injury to the 
 
         lower left abdomen which arose out of and in the course of 
 
         employment with University of Iowa which either caused or 
 
         aggravated a hernia condition necessitating hernia surgical 
 
         repair on November 28, 1985.  Claimant had no abdominal pain 
 
         prior to July 14, 1985.
 
         
 
              3.  Two or three days after July 14, 1985, at the request of 
 
         claimant's supervisor, claimant submitted a written report of 
 
         injury to defendants of the July 14, 1985 injury which was given 
 
         by claimant to his supervisor which ultimately became a part of 
 
         claimant's personnel records at the University of Iowa.
 
         
 
              4.  The work injury of July 14, 1985, was a cause of a 
 
         period of temporary disability from work beginning on November 
 
         27, 1985 through January 12, 1986, at which time claimant 
 
         returned to work.
 
         
 
              5.  Claimant's gross weekly earnings on July 14, 1985 was 
 
         $215.38 per week.
 
         
 
              6.  The work injury of July 14, 1985, was a cause of 
 
         reasonable medical expenses in the amount of $3,033.40.
 
         
 
              7.  Defendant, the State of Iowa, denied claimant's claim 
 
         for weekly compensation benefits and delayed commencement of 
 
         those benefits without reasonable or probable cause or excuse.  
 
         Claimant's account of the incident of July 14, 1985 was 
 
         uncontroverted except for claimant's supervisor's failure to 
 
         recall the incident which was directly refuted by the written 
 
         report of injury submitted by claimant to defendant at the 
 
         approximate time of injury.  Denial of the claim was due to 
 
         improper investigation of the claim which would have revealed the 
 
         written notice of July 14, 1985.  The claim only involved 
 
         temporary total disability benefits of six and five-sevenths 
 
         weeks.  Claimant received no written or oral notice prior to the 
 
         institution of litigation as to the reasons, if any, for the 
 
         denial of his claim by the State of Iowa.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established by the preponderance of the 
 
         evidence entitlement to the benefits as awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendant, the State of Iowa, shall pay to claimant 
 
         temporary total disability benefits from November 27, 1985 
 
         through January 12, 1986 at the rate of one hundred forty-three 
 
         and 12/100 dollars ($143.12) per week.
 
         
 
              2.  Defendant, the State of Iowa, shall pay claimant the sum 
 
         of three thousand thirty-three and 40/100 dollars ($3,033.40) as 
 
         reimbursement for reasonable medical expenses.
 

 
         
 
         
 
         
 
         SEYDEL V. U OF I PHYSICAL PLANT
 
         Page  10
 
         
 
         
 
              3.  Defendant, the State of Iowa, shall in addition pay 
 
         penalty benefits in the total amount of three point three-six 
 
         (3.36) weeks at the rate of one hundred forty-three and 12/100 
 
         dollars ($143.12) per week from November 27, 1985.
 
         
 
              4.  Defendant, the State of Iowa, shall pay all accrued 
 
         weekly benefits in a lump sum.
 
         
 
              5.  Defendant, the State of Iowa, shall pay interest on 
 
         weekly benefits awarded herein as set forth in Iowa Code section 
 
         85.30.
 
         
 
              6.  Defendant, the State of Iowa, shall pay the costs of 
 
         this action pursuant to Division of Industrial Services Rule 
 
         343-4.33 and specifically the State of Iowa shall be taxed the 
 
         sum of one hundred and no/100 dollars ($100.00) for the medical 
 
         reports of Drs. Shimp and Tung as requested in the prehearing 
 
         report.
 
         
 
              7.  Defendant, the State of Iowa, shall file activity 
 
         reports on the payment of this award as requested by this agency 
 
         pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 26th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Thomas M. Wertz
 
         Mr. Steven E. Howes
 
         Attorneys at Law
 
         4089 21st Ave., SW
 
         Suite 114
 
         Cedar Rapids, Iowa 52404
 
         
 
         Mr. Charles Lavorato
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50309
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1101; 1801; 4000.2
 
                                                 Filed February 26, 1988
 
                                                 LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DONALD J. SEYDEL,
 
         
 
              Claimant,
 
                                                    FILE NO. 818849
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         U OF I PHYSICAL PLANT,
 
                                                    D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1101; 1801; 4000.2
 
         
 
              Claimant was awarded temporary total disability benefits for 
 
         a short period of time as a result of a hernia condition found 
 
         work related.  Claimant was also awarded additional penalty 
 
         benefits under Iowa Code 86.13 for an unreasonable delay in the 
 
         commencement of benefits.  It was found that there was no 
 
         credible evidence to support the state's denial of the claim.  It 
 
         was found that the state acted unreasonable viewing the state's 
 
         position objectively in failing to perform a rather basic 
 
         investigation of its own records.  It was found that the state's 
 
         position was even more untenable due to the smallness of the size 
 
         of the claim.  Finally, it was noted that the State's actions in 
 
         this matter would constitute several unfair claims practices 
 
         under Iowa Code section 507B.4(9) applicable to private insurance 
 
         carriers with reference to its unreasonable investigation; 
 
         failure to promptly communicate the denial of coverage, failure 
 
         to provide a reasonable basis for denial of the claim before 
 
         litigation was instituted and a failure to settle this matter 
 
         after liability before the claim became reasonably clear.
 
 
 
         
 
         
 
 
        
 
 
 
 
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        HARLAN E. DAGGETT,
 
        
 
            Claimant,
 
                                                   File No. 818879
 
        vs.
 
        
 
        ACE LINES,                               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 INSURANCE CO.,                 MAY 23 1989
 
        
 
             Insurance Carrier              IOWA INDUSTRIAL COMMISSIONER
 
             Defendants.
 
             
 
             
 
                                 STATEMENT OF THE CASE
 
        
 
             This is a proceeding in arbitration brought by Harlan E. 
 
             Daggett, claimant, against Ace Lines, employer, and Liberty 
 
             Mutual Insurance Co., insurance carrier, to recover benefits 
 
             under the Iowa Workers' Compensation Act as a result of an injury 
 
             sustained on March 13, 1986. This matter came on for hearing 
 
             before the undersigned deputy industrial commissioner May 13, 
 
             1988. The record was considered fully submitted at the close of 
 
             the hearing. The record in this case consists of the testimony of 
 
             claimant, Lanny Masters, Linda Masters, Connie Daggett, Gary 
 
             Walljasper and Michael Walderbach; joint exhibits A, B and C; 
 
             claimant's exhibits 1 through 6, inclusive; and defendants' 
 
             exhibits A and B.
 
        
 
                                      ISSUES
 
        
 
             Pursuant to the prehearing report and order submitted and 
 
             approved May 13, 1988, the following issues are presented for 
 
             resolution:
 
        
 
            1. Whether the claimant's injury is causally connected to 
 
        the disability on which claimant now bases his claim;
 
        
 
            2. The extent of claimant's entitlement to weekly 
 
        disability benefits, including temporary total disability/healing 
 
        period benefits and permanent partial disability benefits; and
 
        
 
            3. The applicable rate of compensation.
 
        
 
                                 FACTS PRESENTED
 
        
 
             Claimant sustained an injury which arose out of and in the 
 
             course of his employment on March 13, 1986 when, while assisting 
 
             another employee tarping a load, that other employee fell on top 
 
             of him. Claimant testified he felt a sharp pain in his neck and 
 
             through his shoulders, that he drove home that night, and that 
 
             defendant employer, upon being advised of the in jury, sent him 
 
             to see Scott Carver, M.D., who referred claimant to Thomas A. 
 
             Carlstrom, M. D. Claimant stated Dr. Carlstrom took him off work 
 
             for what seemed "like a couple of months" and that when Dr. 
 

 
        
 
 
 
 
 
             Carlstrom released him to return to work, he was restricted from 
 
             driving more than two hours and lifting more than 20 pounds. 
 
             Claimant recalled his neck and shoulders were stiff but "somewhat 
 
             better."
 
        
 
            Claimant, who had been discharged from his employment with 
 
        Ace Lines, offered that it was "hard to find a job, " that 
 
        because of his medical condition he "did not feel up to looking 
 
        for work" and that he did not work from June of 1986 until 
 
        approximately October 1986, when his wife secured some work 
 
        cleaning apartment houses and he helped her by doing what he 
 
        could. Claimant acknowledged that from May through October 1986, 
 
        he did not see any physician but that he returned to see Dr. 
 
        Carlstrom in October 1986 and consented to further surgery, which 
 
        was done in January 1987 because he felt his physical condition 
 
        was "going back downhill." Claimant recalled he was released to 
 
        return to work on approximately April 1, 1987 without any stated 
 
        restrictions and that he was feeling better a t this time.
 
        
 
            Claimant stated he secured employment driving a cement truck 
 
        for Ace Concrete from April through June 17, 1987. Claimant 
 
        described this job as delivering concrete around the Des Moines 
 
        area and keeping the truck clean and stated this was not "hard 
 
        work" but when bouncing down the freeway, he did "hurt." 
 
        Claimant acknowledged he was still feeling better and improving 
 
        when he left this $11 per hour job voluntarily to accept 
 
        employment with the VA Hospital in Knoxville. Claimant stated 
 
        the position with the VA did not pay better but had better 
 
        benefits and the job description led him to believe it was 
 
        lighter work. Claimant described his position as a full-time 
 
        temporary one paying $10.10 per hour, involving transporting 
 
        patients by van. Claimant denied any responsibility for 
 
        assisting patients and stated he did not think he could "keep 
 
        them from falling." Claimant stated he also runs a dump truck, a 
 
        tractor, a lawnmower, plows snow, picks up trash, and waters the 
 
        grass as a part of his responsibilities.
 
        
 
            Lanny Masters testified that he met claimant in the spring 
 
        of 1985 and prior to claimant's injuries saw him approximately 
 
        one time per week on a social basis. Mr. Masters opined that 
 
        since his injury, claimant is not "half the man he was" and that 
 
        they are unable to do many of the things they used to do together 
 
        such as chopping wood, fishing, hunting and playing cards.
 
        
 
             Linda Masters explained she saw claimant at the same 
 
             frequency as her husband, Lanny, and shared his opinions with 
 
             regard to claimant's current abilities. Mrs . Masters described 
 
             claimant's energy level and level of ambition to be down 
 
             significantly since his injury.
 
        
 
            Connie Daggett, claimant's wife since June 28, 1985, 
 
        testified that prior to March of 1986 claimant was in good 
 
        health, had no complaints, and specifically had no neck pain. 
 
        Mrs. Daggett stated claimant's pain appears to be 
 
        activity-related and consequently claimant has become inactive, 
 
        lying around watching television. Mrs. Daggett described 
 
        claimant as not as happy, not as content, as "owly, "crabby, " 
 
        and not feeling "good."
 
        
 
            Gary Walljasper, who described himself as senior claims 
 
        adjuster with defendant insurance company, testified he relied on 
 
        the information contained in defendants' exhibit A to calculate 
 
        claimant's rate. Mr . Walljasper explained that because claimant 
 
        had not been employed for thirteen weeks, the company substituted 
 
        wages of a similarly employed individual who had been employed 
 
        for thirteen weeks. Mr. Walljasper testified claimant was not 
 

 
        
 
 
 
 
 
        provided with any vocational rehabilitation services, since the 
 
        physician indicated claimant was capable of returning to the same 
 
        or substantially similar employment as that which he held with 
 
        defendant employer.
 
        
 
            Michael Walderbach, who described himself as the safety 
 
        director for defendant employer, testified claimant was 
 
        discharged from his employment because he dropped off a trailer 
 
        in St. Louis without blocking it, causing it to eventually tip 
 
        and being a "domino effect" with other trailers. Mr. Walderbach 
 
        stated it was not until after claimant was told of his discharge 
 
        that claimant made him aware he had been injured the night 
 
        before.
 
        
 
            Thomas A. Carlstrom, M.D., neurosurgeon, testified he first 
 
        saw claimant on April 15, 1986 on referral from Dr. Carver and 
 
        got from claimant a history consistent with that given at 
 
        hearing. Dr. Carlstrom rendered a diagnosis of cervical 
 
        radiculopathy (pinched nerve in the neck), found evidence of 
 
        preexisting arthritis of several of the disc joints in the neck 
 
        and prescribed physical therapy for the "first couple of weeks." 
 
        Dr. Carlstrom explained that when the physical therapy did not 
 
        appear to be working, he took claimant off work until again 
 
        released to return to work on May 22 with a 20 pound weight 
 
        restriction and a restriction against driving more than two hours 
 
        at a time. Dr. Carlstrom described claimant's condition as 
 
        "mechanical neck pain" and did not see claimant again until 
 
        October of 1986. Dr. Carlstrom testified:
 
        
 
             Q. Let me ask you this, Doctor Carlstrom: You explained 
 
             what, in your opinion, Harlan could do from May, '86, 
 
             forward to the period that we're in now of October of '86. 
 
             If he were unable to find work within those restrictions 
 
             that you have prescribed or instated here today, what is 
 
             your professional opinion about him doing work not within 
 
             those restrictions?
 
             
 
             A. In other words, lifting greater than 20 pounds or 
 
             driving greater than two hours at a time?
 
             
 
             Q. Right.
 
             
 
             A. Well, there was nothing on x-rays to suggest that his -- 
 
             that he had an unstable situation, or there was nothing on 
 
             his exam to suggest that there was anything extremely 
 
             serious wrong with his spine.
 
             
 
                  And I would have suggested -- or I would have told him, 
 
                      if he had asked me to increase his activities, that he 
 
                      should do it gradually and without obligation. In other 
 
                      words, if he wanted to lift greater than 20 pounds on a 
 
                      trial basis, fine; but I would have thought that if he had 
 
                      done that sort of thing he would have probably become more 
 
                      symptomatic.
 
             
 
             Q. If he reports or testifies that he did attempt to do 
 
             that and his pain did, in fact, increase and he was unable 
 
             to work, what would your opinion be with respect to whether 
 
             that would be consistent with the type of problem that he 
 
             had?
 
             
 
                  MS. KELLEY: Excuse me, Doctor. I'm going to object to 
 
                      the form of the question. This calls for speculation. The 
 
                      doctor saw the patient on October 7th, and there is nothing 
 
                      indicated in his records as to any of this information or 
 
                      any complaints such as you're suggesting.
 

 
        
 
 
 
 
 
             
 
             Q. (By Mr. Beattie) You can go ahead and answer.
 
             
 
             A. That would have been consistent with what I would have 
 
             expected to happen.
 
             
 
        (Carlstrom Deposition, Jt. Ex. B, pp. 10-11)
 
        
 
             No further care was rendered when claimant was seen by Dr. 
 
             Carlstrom in October until surgery, an inferior cervical fusion, 
 
             was done on January 9, 1987. Dr. Carlstrom reported he did not 
 
             find an "acutely herniated disc" upon operating but found 
 
             osteophytes ("calcified spurs"). Dr. Carlstrom released claimant 
 
             to return to work February 24, 1987 and testified:
 
             
 
             Q. First of all, Doctor Carlstrom, what restrictions do you 
 
             believe that Mr. Daggett should operate on? I'm asking your 
 
             opinion based on reasonable medical certainty.
 
             
 
             A. Are you talking about as a result of his --
 
             
 
             Q. Accident.
 
             
 
             A. As a result of the accident and the surgery?
 
             
 
             Q. Yes.
 
             
 
             A. The restrictions that he would -- that would be required 
 
             are not particularly stringent and more -- are more based on 
 
             his symptom level with activity than anything else, but I 
 
             recommend patients who have had this kind of surgery -- I 
 
             recommend to them that they should avoid heavy lifting and, 
 
             of course, avoid things like automobile accidents and falls 
 
             and also avoid particularly heavy physical activity with 
 
             respect to their upper extremities, such as pulling and 
 
             pushing, things like that.
 
             
 
             Q. What about riding in vehicles as a professional 
 
             occupation?
 
             
 
             A. That would be another restriction that most of these 
 
             patients would need to observe.
 
             
 
        (Carlstrom Dep., Jt. Ex. B, pp. 18-19)
 
             
 
             Dr. Carlstrom stated:
 
             
 
             Q. But in any event, you had, prior to that date, returned 
 
             him to his usual, customary employment with the restriction 
 
             of no lifting of over 50 pounds, and you were aware that he 
 
             had been engaged as a truck driver? Let's go back to your 
 
             February 24, '87 notation.
 
             
 
             A. Yes.
 
             
 
             Q. You did not restrict him from truck driving at that 
 
             time, I take it?
 
             
 
             A. No.
 
             
 
        (Carlstrom Dep., Jt. Ex. B, pp. 29-30)
 
        
 
             On June 2, 1987, Dr. Carlstrom advised defendant insurance 
 
             carrier: "I believe Mr. Daggett has reached maximum benefits of 
 
             healing and I believe he has suffered a permanent impairment of 
 
             5% of the body as a whole." (Jt. Ex. A, p. 27)
 

 
        
 
 
 
 
 
        
 
            Medical records reveal claimant was seen by Thomas B. 
 
        Summers, M.D., neurosurgeon, on one occasion - May 19, 1986. In 
 
        a report of the same date, Dr. Summers wrote:
 
        
 
                  I find no evidence of serious injury or residuals of 
 
                      injury in the case of Mr. Daggett and as the result of 
 
                      accidental injury, which took place here in this city on or 
 
                      about March 13, 1986. Certainly, there is no evidence of 
 
                      neurologic deficit or orthopedic deficit on examination at 
 
                      this time.
 
             
 
        (Jt. Ex. A, p. 11)
 
        
 
             Dr. Summers further opined on May 23, 1986:
 
             
 
                  As indicated in my consultation report of May 19, 1986, I 
 
                      could find no evidence of serious injury or residuals of 
 
                      injury in the case of Mr. Daggett and as the result of 
 
                      accidental injury, which took place here in this city on or 
 
                      about March 13, 1986. Furthermore, it was my feeling that 
 
                      Mr. Daggett was capable of regular and gainful employment 
 
                      and without restriction, if he could be so motivated. In my 
 
                      opinion, he could return to work as a truck driver.
 
             
 
        (Jt. Ex. A, p. 13)
 
        
 
             Pursuant to defendants' answers to claimant's interrogatory 
 
             No. 14, claimant's gross wages during the time he was employed by 
 
             defendant is shown as:
 
        
 
                  Pay Period Ending                  Gross
 
                  
 
                  3-15-86                          $1065.83
 
                  3-1-86                           $ 291.68
 
                  2-22-86                          $ 466.25
 
                  2-15-86                          $ 421.97
 
                  2-8-86                           $ 264.08
 
                  
 
        (Claimant's Exhibit 1)
 
        
 
             Defendants' exhibit A purports to show representative 
 
             earnings of a full-time employee for thirteen weeks. It 
 
             provides:
 
        
 
                       1.    -
 
                       2. 291.68
 
                       3. 466.26
 
                       4. 421.97
 
                       5. 264.08
 
                       6.    -
 
                       7. 518.62
 
                       8. 654.19
 
                       9. 407.56
 
                       10. 378.03
 
                       11. 234.83
 
                       12. 592.09
 
                       13.  677.22
 
                       
 
                          4906.53 ~ 377.42
 
        
 
        (Defendants' Exhibit A)
 
        
 
                            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).
 
             
 
             The parties do not dispute that claimant sustained an injury 
 
             which arose out of and in the course of his employment or that 
 
             the injury was the cause of at least temporary disability. What 
 
             is essentially at issue in this case is the length of claimant's 
 
             entitlement to those temporary total disability/healing period 
 
             benefits and his entitlement to permanent partial disability 
 
             benefits. Of first concern, then, is whether claimant's injury is 
 
             the cause of a permanent partial disability.
 
        
 
             The supreme court of Iowa in Almquist v. Shenandoah 
 
             Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
             the definition of personal injury in workers' compensation cases 
 
             as follows:
 
        
 
             While a personal injury does not include an occupational 
 
             disease under the workmen's Compensation Act, yet an injury 
 
             to the health may be a personal injury [Citations omitted.] 
 
             Likewise a personal injury includes a disease resulting from 
 
             an injury....The result of changes in the human body 
 
             incident to the general processes of nature do not amount to 
 
             a personal injury. This must follow, even though such 
 
             natural change may come about because the life has been 
 
             devoted to labor and hard work. Such result of those 
 
             natural changes does not constitute a personal injury even 
 
             though the same brings about impairment of health or the 
 
             total or partial incapacity of the functions of the human 
 
             body.
 
             
 
               ....
 
             
 
             A personal injury, contemplated by the Workmen's 
 
             Compensation Law, obviously means an injury to the body, the 
 
             impairment of health, or a disease, not excluded by the act, 
 
             which comes about, not through the natural building up and 
 
             tearing down of the human body, but because of a traumatic 
 
             or other hurt or damage to the health or body of an 
 
             employee. [Citations omitted.] The injury to the human 
 
             body here contemplated must be something, whether an 
 
             accident or not, that acts extraneously to the natural 
 
             processes of nature and thereby impairs the health, 
 
             overcomes, injures, interrupts, or destroys some function of 
 
             the body, or otherwise damages or injures a part or all of 
 
             the body.
 
             
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of March 13, 1986 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).
 
        
 
            As noted above, the question of causal connection is 
 
        essentially within the domain of expert testimony. Review is 
 
        thus first given to the testimony of the two experts who have 
 
        evaluated or treated claimant. Dr. Summers saw claimant in May 
 
        of 1986 and found "no evidence of serious injury or residuals of 
 
        injury...as the result of accidental injury which took place...on 
 
        or about March 13, 1986." Dr. Carlstrom opined that the work 
 
        accident of March 13 caused the injury, the resultant care and 
 

 
        
 
 
 
 
 
        treatment, and further caused a permanent partial impairment. It 
 
        is determined that as the physician who saw claimant over a 
 
        longer period of time and who last treated claimant, that Dr. 
 
        Carlstrom's opinion is entitled to greater weight and that 
 
        therefore claimant's injury of March 13, 1986 is the cause of a 
 
        permanent impairment and permanent disability. Although it is 
 
        accepted claimant had preexisting arthritis, the record clearly 
 
        establishes claimant was asymptomatic prior to this injury. The 
 
        undersigned would conclude that the work injury was the proximate 
 
        cause of the disability on which claimant now bases his claim.
 
        
 
            The parties have stipulated that if claimant has a permanent 
 
        partial disability, it is an industrial disability to the body as 
 
        a whole. Iowa Code section 85.34(2)(u) provides:
 
             
 
                  In all cases of permanent partial disability other than 
 
                      those hereinabove described or referred to in paragraphs "a" 
 
                      through "t" hereof, the compensation shall be paid during 
 
                      the number of weeks in relation to five hundred weeks as the 
 
                      disability bears to the body of the injured employee as a 
 
                      whole.
 
                  
 
             Dr. Carlstrom has opined that claimant sustained a permanent 
 
             partial impairment of 5 percent of the body as a whole as a 
 
             result of his work injury of May 13, 1986.
 
             
 
             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, 125 N.W.2d 251 (1963). 
 
             Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
             
 
             A finding of impairment to the body as a whole found by a 
 
             medical evaluator does not equate to industrial disability. This 
 
             is so as impairment and disability are not synonymous. Degree of 
 
             industrial disability can in fact be much different than the 
 
             degree of impairment because in the first instance reference is 
 
             to loss of earning capacity and in the latter to anatomical or 
 
             functional abnormality or loss. Although loss of function is to 
 
             be considered and disability can rarely be found without it, it 
 
             is not so that a degree of industrial disability is 
 
             proportionally related to a degree of impairment of bodily 
 
             function.
 
             
 
             Factors to be considered in determining industrial 
 
             disability include the employee's medical condition prior to the 
 
             injury, immediately after the injury, and presently; the situs of 
 
             the injury, its severity and the length of healing period; the 
 
             work experience of the employee prior to the injury, after the 
 
             injury and potential for rehabilitation; the employee's 
 
             qualifications intellectually, emotionally and physically; 
 
             earnings prior and subsequent to the injury; age; education; 
 
             motivation; functional impairment as a result of the injury; and 
 
             inability because of the injury to engage in employment for which 
 
             the employee is fitted. Loss of earnings caused by a job transfer 
 
             for reasons related to the injury is also relevant. These are 
 
             matters which the finder of fact considers collectively in 
 
             arriving at the determination of the degree of industrial 
 
             disability.
 
             
 
             There are no weighting guidelines that indicate how each of 
 
             the factors are to be considered. There are no guidelines which 
 
             give, for example, age a weighted value of ten percent of the 
 
             total value, education a value of fifteen percent of total, 
 

 
        
 
 
 
 
 
             motivation - five percent; work experience - thirty percent, etc. 
 
             Neither does a rating of functional impairment directly correlate 
 
             to a degree of industrial disability to the body as a whole. In 
 
             other words, there are no formulae which can be applied and then 
 
             added up to determine the degree of industrial disability. It 
 
             therefore becomes necessary for the deputy to draw upon prior 
 
             experience, general and specialized knowledge to make the finding 
 
             with regard to degree of industrial disability. See Peterson v. 
 
             Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
             Christensen v. Hagen, Inc., (Appeal Decision, March 26, 1985).
 
        
 
             Claimant, 35 years old at the time of hearing, is a high 
 
             school graduate who described himself as a "C" or average 
 
             student. Claimant was enlisted in the United States Army from 
 
             1973 through 1976 where he was trained in "basic mechanics" and 
 
             has previous work experience as a food service worker, a welder 
 
             which he described as "a hard labor job," a feed and grain 
 
             laborer, repairing and building windows, on an assembly line 
 
             putting lawnmowers and snowblowers together, as a truck driver, 
 
             and building roof trusses. Claimant denied an ability to do any 
 
             of these jobs since his injury. Claimant has medical 
 
             restrictions on his employability which are essentially 
 
             self-imposed but with the consent of his physician. Dr. 
 
             Carlstrom acknowledges claimant should avoid heavy lifting, heavy 
 
             physical activity with respect to the upper extremities, and 
 
             admits claimant would have difficulty riding in vehicles as a 
 
             professional occupation. Yet, claimant has been employed since 
 
             the treatment of his injury at a position paying a comparable 
 
             wage to that he earned in his employment with defendant employer. 
 
             In addition, Dr. Carlstrom has released claimant to return to 
 
             work knowing claimant had been employed as a truck driver. The 
 
             undersigned does not dispute that claimant's capacity to earn has 
 
             been hampered as a result of the injury. While it is true that 
 
             claimant is no longer employed by defendant, it has been 
 
             established to the satisfaction of the undersigned that 
 
             claimant's separation from employment was for reasons unrelated 
 
             to the work injury. While it is not for the undersigned to 
 
             conclude whether or not the employer had good cause for their 
 
             discharge of claimant, the record is clear that the employer had 
 
             grounds for the discharge separate and distinct from any 
 
             allegation that claimant was discharged as a result of his 
 
             injury. In addition, it has been shown that if claimant had not 
 
             been discharged, employment was available to him within any 
 
             restrictions imposed.
 
        
 
             Claimant appears to have had a scant medical history prior 
 
             to this injury. Claimant appears to be of at least average 
 
             intelligence,but there is some question why claimant would have 
 
             left what appears to have been stable employment with Ace 
 
             Concrete paying $11 per hour to accept temporary employment where 
 
             his chances of becoming a permanent employee "do not look good." 
 
             The undersigned is aware of claimant's testimony that he "felt 
 
             hurt" while "bouncing down the freeway." However, claimant also 
 
             testified he was "feeling better and improving" during the course 
 
             of that employment. Defendants cannot be held completely liable 
 
             for claimant's voluntary decisions.
 
        
 
             While claimant presented testimony as to what his future 
 
             health may be, such testimony is completely irrelevant, for what 
 
             may happen to claimant in the future is better left to a 
 
             review-reopening proceeding. The industrial commissioner 
 
             addressed this issue in Umphress v. Armstrong Rubber Company 
 
             (Appeal Decision filed August 27, 1987), which stated, in part: 
 
             "It appears...that the deputy based his decision in part on what 
 
             may occur to claimant in the future as opposed to his present 
 
             condition. This is mere speculation." Considering, then, all 
 

 
        
 
 
 
 
 
             the elements of industrial disability, it is concluded claimant 
 
             has sustained a permanent partial disability of 25 percent for 
 
             industrial purposes entitling him to 125 weeks of permanent 
 
             partial disability benefits.
 
        
 
            Direction is thus turned to the extent of claimant's 
 
        entitlement to healing period benefits. The supplemental claim 
 
        activity report filed by defendants in this matter shows claimant 
 
        was paid benefits for the periods from March 14, 1986 through 
 
        June 21, 1986 (for a total of 14.286 weeks) and again from 
 
        January 9, 1987 through March 30, 1987 (for a total of 11.571 
 
        weeks). Claimant requests benefits for the period from June 22, 
 
        1986 to the date defendants resumed payments in January 1987 
 
        except for a four week period arguing that:
 
        
 
                  The evidence will show that Harlan attempted to locate 
 
                      some work that he could do within his restrictions placed 
 
                      upon him by Dr. Carlstrom. The evidence will further show, 
 
                      however, that even when Harlan was able to find such work, 
 
                      that he was unable to do it continuously because of the 
 
                      severe pain and disability that he sustained.
 
             
 
        (Claimant's Trial Brief, Pages 12-13)
 
        
 
             Iowa Code section 85.34(1) provides that if an employee has 
 
             suffered a personal injury causing permanent partial disability, 
 
             the employer shall pay compensation for a healing period from the 
 
             day of the injury until (l) the employee returns to work; or (2) 
 
             it is medically indicated that significant improvement from the 
 
             injury is not anticipated; or (3) until the employee is medically 
 
             capable of returning to substantially similar employment.
 
        
 
            The undersigned, relying on the opinions of Dr. Carlstrom, 
 
        concludes those benefits paid by defendants were appropriate, 
 
        that claimant's healing period ended June 21, 1986, and that 
 
        claimant was temporary totally disabled from January 9 through 
 
        March 30, 1987. Merely because claimant did not find employment 
 
        satisfactory to him in the interim period from June 22, 1986 
 
        through January 9, 1987 does not justify a continuation of 
 
        benefits. The record establishes that except for seeing Dr. 
 
        Carlstrom in October 1986, claimant was under no medical care 
 
        during this period. Claimant is not entitled to any further 
 
        temporary total disability or healing period benefits beyond that 
 
        already paid by defendants. Claimant had been released to return 
 
        to work, had reached maximum medical recovery for his condition 
 
        as of June 21, 1986, and pursuant to Iowa Code section 85.34, was 
 
        not entitled to benefits during the interim period.
 
        
 
             The final issue for resolution is that of rate. Claimant 
 
             argues that because he was not employed by defendants for a total 
 
             of thirteen weeks, he is entitled to an average weekly wage based 
 
             on the five weeks he was employed. Defendants, on the other 
 
             hand, presented evidence in defendants' exhibit A as the 
 
             appropriate weeks to determine claimant's compensation rate. 
 
             Defendants' argument must fail as the evidence presented is not a 
 
             complete thirteen week period. See Barker v. City Wide Cartage, 
 
             I Iowa Indus. Comm'r Rep. 12 (Appeal Dec. 1980). Iowa Code 
 
             section 85.36 provides, in part:
 
        
 
                  The basis of compensation shall be the weekly earnings of 
 
                      the injured employee at the time of the injury. Weekly 
 
                      earnings means gross salary, wages, or earnings of an 
 
                      employee to which such employee would have been entitled had 
 
                      the employee worked the customary hours for the full pay 
 
                      period in which the employee was injured, as regularly 
 
                      required by the employee's employer for the work or 
 

 
        
 
 
 
 
 
                      employment for which the employee was employed, computed or 
 
                      determined as follows and then rounded to the nearest 
 
                      dollar:
 
             
 
               ....
 
             
 
                  7. In the case of an employee who has been in the employ 
 
                      of the employer less than thirteen calendar weeks 
 
                      immediately preceding the injury, the employee's weekly 
 
                      earnings shall be computed under subsection 6, taking the 
 
                      earnings, not including overtime or premium pay, for such 
 
                      purpose to be the amount the employee would have earned had 
 
                      the employee been so employed by the employer the full 
 
                      thirteen calender weeks immediately preceding the injury and 
 
                      had worked, when work was available to other employees in a 
 
                      similar occupation.
 
        
 
             Therefore, totaling claimant's gross earnings and dividing 
 
             that number by five allows for an average weekly wage of $501.96 
 
             per week. Pursuant to the prehearing report, at the time of 
 
             claimant's injury he was single and entitled to three exemptions. 
 
             Consequently, claimant is entitled to a compensation rate of 
 
             $293.64.
 
        
 
                                 FINDINGS OF FACT
 
        
 
             Wherefore, based on all of the evidence presented, the 
 
             following findings of fact are made:
 
        
 
            1. Claimant sustained an injury on March 13, 1986 which 
 
        arose out of and in the course of his employment.
 
        
 
            2. The greater weight of medical evidence establishes 
 
        claimant's injury is the cause of a permanent impairment and is 
 
        the cause of the disability on which claimant bases his claim.
 
        
 
            3. Claimant, age 35 at the time of hearing, is a high 
 
        school graduate with prior employment experience as a truck 
 
        driver and laborer.
 
        
 
            4. Claimant has restrictions imposed on his employability 
 
        which may prohibit him from engaging in some of the work for 
 
        which he is fitted.
 
        
 
            5. Subsequent to his injury, claimant returned to work as a 
 
        truck driver and was able to perform the job.
 
        
 
            6. Claimant was discharged from his employment with 
 
        defendant employer for reasons unrelated to his work injury.
 
        
 
            7. Claimant is currently employed in a position paying a 
 
        wage comparable to that he was earning in truck driving.
 
        
 
            8. Claimant's capacity to earn has been hampered as a 
 
        result of his work injury.
 
        
 
            9. Claimant has sustained a permanent partial disability of 
 
        25 percent for industrial purposes.
 
        
 
            10. Claimant's rate of compensation is $293.64 based on a 
 
        gross average weekly wage of $501.96, being single at the time of 
 
        hearing, and an entitlement to three exemptions.
 
        
 
            11. Claimant is entitled to healing period benefits from 
 
        March 14, 1986 through June 21, 1986, and temporary total 
 
        disability benefits from January 9, 1987 through March 30, 1987.
 

 
        
 
 
 
 
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Therefore, based on the principles of law previously stated, 
 
             the following conclusions of law are made:
 
        
 
            1. Claimant has established that his work injury is the 
 
        cause of the disability on which he bases his claim.
 
        
 
             2. Claimant has established that as a result of the injury 
 
             of March 13, 1986, he sustained a permanent partial disability of 
 
             25 percent for industrial purposes.
 
        
 
            3. Claimant has established an entitlement to healing 
 
        period benefits for the period from March 14, 1986 through June 
 
        21, 1986 and temporary total disability benefits for the period 
 
        from January 9, 1987 through March 30, 1987 after which permanent 
 
        partial disability benefits shall commence.
 
        
 
            4. Claimant's appropriate rate of compensation is $293.64.
 
        
 
                                      ORDER
 
        
 
             THEREFORE, IT IS ORDERED:
 
        
 
            Defendants shall pay unto claimant one hundred twenty-five 
 
        (125) weeks of permanent partial disability benefits at the rate 
 
        of two hundred ninety-three and 64/100 dollars ($293.64) per week 
 
        commencing March 31, 1987.
 
        
 
            Defendants shall pay unto claimant fourteen point two eight 
 
        six (14.286) weeks of healing period benefits at the rate of two 
 
        hundred ninety-three and 64/100 dollars ($293.64) per week for 
 
        the period from March 14, 1986 through June 21, 1986.
 
        
 
            Defendants shall pay unto claimant eleven point five seven 
 
        one (11.571) weeks of temporary total disability benefits at the 
 
        rate of two hundred ninety-three and 64/100 dollars ($293.64) for 
 
        the period from January 9, 1987 through March 30, 1987.
 
        
 
            Defendants shall receive full credit for all disability 
 
        benefits previously paid.
 
        
 
            Payments that have accrued shall be paid in a lump sum 
 
        together with statutory interest thereon pursuant to Iowa Code 
 
        section 86.30.
 
        
 
             Defendants shall file a claim activity report upon payment 
 
             of this award.
 
        
 
            Cost of this action are assessed against defendants pursuant 
 
        to Division of Industrial Services Rule 343-4.33.
 
        
 
            Signed and filed this 23rd day of May, 1989.
 
        
 
        
 
        
 
        
 
                                       DEBORAH A. DUBIK
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies to:
 
        
 
        Ms. Dorothy L. Kelley
 
        Attorney at Law
 
        500 Liberty Bldg.
 

 
        
 
 
 
 
 
        Des Moines, IA 50309
 
        
 
        Mr. Robert W. Conrad
 
        Attorney at Law
 
        P.O. Box 541
 
        Knoxville, IA 50138
 
        
 
        Mr. Donald G. Beattie
 
        Attorney at Law
 
        204 8th St, SE
 
        P.O. Box 387
 
        Altoona, IA 50009
 
        
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HARLAN E. DAGGETT,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 818879
 
            ACE LINES,                    :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
 
 
            
 
 
 
                 Defendants appeal from an arbitration decision awarding 
 
 
 
            permanent partial disability of 25 percent for industrial 
 
 
 
            purposes.
 
 
 
            
 
 
 
                 The record on appeal consists of the transcript of the 
 
 
 
            arbitration hearing; claimant's exhibits 1 through 6; 
 
 
 
            defendants' exhibits A and B; and joint exhibits A through 
 
 
 
            C.  Both parties filed briefs on appeal.
 
 
 
            
 
 
 
                                      issues
 
 
 
            
 
 
 
                 The issues on appeal are:
 
 
 
            
 
 
 
                    1.  Whether substantial evidence exists to 
 
 
 
                 support the deputy's decision awarding claimant 
 
 
 
                 permanent partial disability of 25 percent for 
 
 
 
                 industrial purposes.
 
 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
 
 
                    2.  Whether the deputy erred in the computation 
 
 
 
                 of claimant's rate of compensation.
 
 
 
            
 
 
 
                              review of the evidence
 
 
 
            
 
 
 
                 The arbitration decision dated May 23, 1989 adequately 
 
 
 
            and accurately reflects the pertinent evidence and it will 
 
 
 
            not be reiterated herein.
 
 
 
            
 
 
 
                                  applicable law
 
 
 
            
 
 
 
                 The citations of law in the arbitration decision are 
 
 
 
            appropriate to the issues and evidence.
 
 
 
            
 
 
 
                                     analysis
 
 
 
            
 
 
 
                 The analysis of the evidence in conjunction with the 
 
 
 
            law in the arbitration decision is adopted.
 
 
 
            
 
 
 
                 While defendants offered evidence of the gross wages of 
 
 
 
            a similarly situated employee they failed to assemble data 
 
 
 
            for 13 weeks immediately preceding the injury.  Iowa Code 
 
 
 
            section 85.36(7).  Therefore, claimant's actual gross wages 
 
 
 
            will be used to compute his rate of compensation.  Barker v. 
 
 
 
            City Wide Cartage, I Iowa Industrial Commissioner Report, 
 
 
 
            Page 15 (1980).
 
 
 
            
 
 
 
                 The deputy divided claimant's gross wages by 5 weeks.  
 
 
 
            The evidence shows that claimant started working for 
 
 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            defendants February 2, 1986 and was terminated on March 14, 
 
 
 
            1986, due to an incident unrelated to his workers' 
 
 
 
            compensation claim.  The correct rate of compensation is 
 
 
 
            determined by totaling claimant's gross earnings and 
 
 
 
            dividing that number by 6 that allows for an average weekly 
 
 
 
            wage of $418.30 per week.  Claimant is entitled to three 
 
 
 
            exemptions and was single at the time of the hearing.  
 
 
 
            Claimant is entitled to a compensation rate of $251.83.
 
 
 
            
 
 
 
                                 findings of fact
 
 
 
            
 
 
 
                 1.  Claimant sustained an injury on March 13, 1986 
 
 
 
            which arose out of and in the course of his employment.
 
 
 
            
 
 
 
                 2.  The greater weight of medical evidence establishes 
 
 
 
            claimant's injury is the cause of a permanent impairment and 
 
 
 
            is the cause of the disability on which claimant bases his 
 
 
 
            claim.
 
 
 
            
 
 
 
                 3.  Claimant, age 35 at the time of hearing, is a high 
 
 
 
            school graduate with prior employment experience as a truck 
 
 
 
            driver and laborer.
 
 
 
            
 
 
 
                 4.  Claimant has restrictions imposed on his 
 
 
 
            employability which may prohibit him from engaging in some 
 
 
 
            of the work for which he is fitted.
 
 
 
            
 
 
 
                 5.  Subsequent to his injury, claimant returned to work 
 
 
 
            as a truck driver and was able to perform the job.
 
 
 
            
 
 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 6.  Claimant was discharged from his employment with 
 
 
 
            defendant employer for reasons unrelated to his work injury.
 
 
 
            
 
 
 
                 7.  Claimant is currently employed in a position paying 
 
 
 
            a wage comparable to that he was earning in truck driving.
 
 
 
            
 
 
 
                 8.  Claimant's capacity to earn has been hampered as a 
 
 
 
            result of his work injury.
 
 
 
            
 
 
 
                 9.  Claimant has sustained a permanent partial 
 
 
 
            disability of 25 percent for industrial purposes.
 
 
 
            
 
 
 
                 10. Claimant's rate of compensation is $251.83 based on 
 
 
 
            a gross average weekly wage of $418.30, being single at the 
 
 
 
            time of the hearing and entitled to 3 exemptions.
 
 
 
            
 
 
 
                 11.  Claimant is entitled to healing period benefits 
 
 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            from March 14, 1986 through June 21, 1986, and temporary 
 
 
 
            total disability benefits from January 9, 1987 through March 
 
 
 
            30, 1987.
 
 
 
            
 
 
 
                                conclusions of law
 
 
 
            
 
 
 
                 Claimant has established that his work injury is the 
 
 
 
            cause of the disability on which he bases his claim.
 
 
 
            
 
 
 
                 Claimant has established that as a result of the injury 
 
 
 
            of March 13, 1986, he sustained a permanent partial 
 
 
 
            disability of 25 percent for industrial purposes. 
 
 
 
            
 
 
 
                 Claimant has established an entitlement to healing 
 
 
 
            period benefits for the period from March 14, 1986 through 
 
 
 
            June 21, 1986 and temporary total disability benefits for 
 
 
 
            the period from January 9, 1987 through March 30, 1987 after 
 
 
 
            which permanent partial disability benefits shall commence.
 
 
 
            
 
 
 
                 4.  Claimant's appropriate rate of compensation is 
 
 
 
            $251.83.
 
 
 
            
 
 
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
 
 
            modified.
 
 
 
            
 
 
 
                                      order
 
 
 
            
 
 
 
                 THEREFORE, it is ordered:
 
 
 
            
 
 
 
                 Defendants shall pay unto claimant one hundred 
 
 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            twenty-five (125) weeks of permanent partial disability 
 
 
 
            benefits at the rate of two hundred fifty-one and 83/100 
 
 
 
            dollars ($251.83) per week commencing March 31, 1987.
 
 
 
            
 
 
 
                 Defendants shall pay unto claimant fourteen point two 
 
 
 
            eight six (14.286) weeks of healing period benefits at the 
 
 
 
            rate of two hundred fifty-one and 83/100 dollars (251.83) 
 
 
 
            per week for the period from March 14, 1986 through June 21, 
 
 
 
            1986.
 
 
 
            
 
 
 
                 Defendants shall pay unto claimant eleven point five 
 
 
 
            seven one (11.571) weeks of temporary total disability 
 
 
 
            benefits at the rate of two hundred fifty-one and 83/100 
 
 
 
            dollars ($251.83) for the period from January 9, 1987 
 
 
 
            through March 30, 1987.
 
 
 
            
 
 
 
                 Defendants shall receive full credit for all disability 
 
 
 
            benefits previously paid.
 
 
 
            
 
 
 
                 Payments that have accrued shall be paid in a lump sum 
 
 
 
            together with statutory interest thereon pursuant to Iowa 
 
 
 
            Code section 86.30.
 
 
 
            
 
 
 
                 Defendants shall file a claim activity report upon 
 
 
 
            payment of this award.
 
 
 
            
 
 
 
                 Costs of this action are assessed against defendants 
 
 
 
            pursuant to Division of Industrial Services Rule 343-4.33.
 
 
 
            
 
 
 
                 Signed and filed this ______ day of June, 1990.
 
 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
 
 
            
 
 
 
            
 
 
 
            
 
 
 
                                         _____________________________
 
 
 
                                               DAVID E. LINQUIST
 
 
 
                                            INDUSTRIAL COMMISSIONER
 
 
 
            
 
 
 
                 
 
 
 
            Copies To:
 
 
 
            
 
 
 
            Ms. Dorothy L. Kelley
 
 
 
            Attorney at Law
 
 
 
            500 Liberty Bldg.
 
 
 
            Des Moines, Iowa 50309
 
 
 
            
 
 
 
            Mr. Robert W. Conrad
 
 
 
            Attorney at Law
 
 
 
            P.O. BOX 541
 
 
 
            Knoxville, Iowa  50138
 
 
 
            
 
 
 
            Mr. Donald G. Beattie
 
 
 
            Attorney at Law
 
 
 
            204 8th St., SE
 
 
 
            P.O. Box 387
 
 
 
            Altoona, Iowa 50009
 
 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803 5-3001
 
                                          Filed August 8, 1990
 
                                          CLAIR R. CRAMER
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            HARLAN E. DAGGETT,            :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 818879
 
            ACE LINES,                    :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE CO., :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant established that as a result of his March 13, 1986 
 
            work injury, he sustained a permanent partial disability of 
 
            25 percent for industrial purposes.
 
            
 
            5-3001
 
            The evidence shows that claimant worked for defendants from 
 
            February 3, 1986 thru March 14, 1986 (six weeks).  The 
 
            correct rate of compensation in this case is determined by 
 
            totaling claimant's gross earning and dividing by 6 weeks 
 
            ($2509.81 î 6).  The average weekly wage is $418.30 per week.  
 
            Barker v. City Wide Cartage, I Iowa Industrial Commissioner 
 
            Report, 12 (1980).
 
            
 
 
        
 
 
 
 
 
        
 
        
 
                                       51803; 3000
 
                                       Filed May 23, 1989
 
                                       Deborah A. Dubik
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
                                 
 
                                 
 
        HARLAN E. DAGGETT,
 
        
 
            Claimant,
 
                                                File No. 818879
 
        vs.
 
        
 
        ACE LINES,                           A R B I T R A T I O N
 
        
 
            Employer,                          D E C I S I O N
 
        
 
        and
 
        
 
        LIBERTY MUTUAL INSURANCE CO.,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
             
 
        51803
 
        
 
             Claimant, who sustained an injury to his back which arose 
 
             out of and in the course of his employment, found to have a 
 
             permanent partial disability of 25 percent.
 
        
 
        3000
 
        
 
             Claimant's rate determined by averaging wages while he was 
 
             employed by defendant employer since claimant was not employed 
 
             for 13 weeks and no evidence was presented of comparable wages 
 
             for a full 13 weeks.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE JACKSON,
 
         
 
              Claimant,
 
                                                    File No. 818950
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         GLENWOOD STATE HOSPITAL/SCHOOL,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and                                            F I L E D
 
         
 
         STATE OF IOWA,                                AUG 31 1989
 
         
 
              Insurance Carrier,               IOWA INDUSTRIAL 
 
                                               COMMISSIONER
 
              Defendants. 
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by claimant, 
 
         Diane Jackson, against the State of Iowa, Glenwood State 
 
         Hospital/ School, self-insured employer.  The case was heard by 
 
         the undersigned on January 23, 1989, in Council Bluffs, Iowa.
 
         
 
              The record consists of the testimony of claimant.  The 
 
         record is also comprised of the testimonies of Lou Colins, Patty 
 
         Warth, Darby Durham, Carol Childers, and Fred Jackson.  
 
         Additionally, the record consists of claimant's exhibits 3 to 101 
 
         and defendant's exhibits A to G.  Exhibits 1 and 2 are 
 
         inadmissible because they were served upon defendant less than 30 
 
         days prior to hearing as mandated by Rule 125(c) of the Iowa 
 
         Rules of Civil Procedure. While claimant objects to defendant's 
 
         exhibit F, it is the determination of the undersigned that 
 
         exhibit F is admissible and the weight to be given that exhibit 
 
         is the function of the deputy.
 
         
 
                                   ISSUES
 
         
 
              As a result of the prehearing report and order submitted on 
 
         January 23, 1989, the issues presented by the parties are:
 
         
 
              1.  The extent of entitlement to weekly compensation for 
 
         temporary and/or permanent disability, if defendant is liable for 
 
         the injuries; and,
 
         
 
              2.  Whether claimant is entitled to medical benefits under 
 
         section 85.27.
 
         
 
                               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;
 
         
 
              2.  That claimant sustained an injury on March 10, 1986, 
 
         which arose out of and in the course of employment with 
 
         employer;
 
         
 
              3.  In the event of an award of weekly benefits, the rate of 
 
         weekly compensation is stipulated to be $199.90 weekly, and it is 
 
         stipulated claimant is married with three exemptions; and,
 
         
 
              4.  Defendant paid claimant 75 weeks of compensation at the 
 
         rate of $199.90 per week prior to the hearing.
 
         
 
                              FACTS PRESENTED
 
         
 
              Claimant is 37-years-old.  She is a high school graduate and 
 
         she has completed 120 hours as a certified nursing aide.  
 
         Claimant commenced her employment on November 18, 1983, as a 
 
         resident treatment worker at Glenwood.
 
         
 
              Claimant testified her job responsibilities included 
 
         dressing residents, lifting them, walking with them and generally 
 
         working with the residents regarding their various health 
 
         problems.
 
         
 
              Claimant testified during her hearing that on March 10, 
 
         1986, she was moving furniture without rollers at house 136.  The 
 
         dresser started to tip over and claimant caught it.  She stated 
 
         at that time, she felt pain in her lower back and down her left 
 
         leg. She testified she reported the injury to her supervisor and 
 
         that on the next morning, claimant was unable to get out of bed.
 
         
 
              Initially, claimant was seen by Margaret Shin, M.D.  She 
 
         referred claimant to Ronald C. Miller, M.D., an orthopedic 
 
         surgeon.  He then referred claimant to Maurice Margules, M.D., a 
 
         neurosurgeon.  A myelogram was performed but because claimant was 
 
         17 weeks pregnant at the time, only conservative treatment was 
 
         attempted.
 
         
 
              On January 14, 1987, Dr. Margules performed surgery for 
 
         excision of a herniated lumbar disc, L4-L5 interspace with a left 
 
         lateral approach.  After the surgery, an MRI was done.  It showed 
 
         there was:  "Mild bulging of the L4-L5 disc with some changes in 
 
         the epidural fat.  No gross herniation.  The findings at the 
 
         L3-L4 level are borderline."
 
         
 
              Claimant testified the surgery did not resolve her problems. 
 
         She stated her low back pain was severe and it felt as if a knife 
 
         was stuck into her back and down her left leg.
 
         
 
              Subsequent to the surgery, claimant was hospitalized on 
 
                                                       
 
                                                                
 
         March 2, 1987, at Des Moines General Hospital.  Records of D. 
 
         Friedgood, D.O., indicate claimant was admitted for:  "1.  ACUTE 
 
         EXACERBATION OF LOW BACK PAIN.  2.  ALCOHOLISM BY HISTORY."  Dr. 
 
         Friedgood recommended physical therapy and bed rest for 
 
         claimant.
 
         
 
              Approximately five weeks later, claimant was examined at the 
 
         University of Iowa Hospitals and Clinics.  Patrick W. Hitchon, 
 
         M.D., an associate professor of neurosurgery, wrote in his report 
 
         of April 27, 1987:
 
         
 
              Diane Jackson was seen in the Neurosurgery Outpatient Clinic 
 
              on 4/23/87.  This young ladies [sic] chief complaint is that 
 
              of intractable low back pain radiating into the left lower 
 
              extremity.  Her past medical history is notable for having 
 
              had back surgery in January, 1987 with excision of an L4-5 
 
              herniated intervertebral disc.  Apparently the radicular 
 
              component of this pain responded quite well to surgery, but 
 
              she was left with the intractable low back pain.  More 
 
              recently this pain has radiated into the left leg.  The pain 
 
              is severe and incapacitating and she has been unable to 
 
              return to her previous employment.  Needless to say, the 
 
              examination was somewhat difficult in view of her discomfort 
 
              and she performed quite poorly on forward bending, toe and 
 
              heel walking.  There was no evidence of atrophy of the lower 
 
              extremities.  Motor assessment was grossly normal, but 
 
              straight leg raising was limited to 450 on the left and 900 
 
              on the right.  Sensory perception was diminished in the 
 
              entire left lower extremity without a particular dermatomal 
 
              pattern.  The deep tendon reflexes were brisk at 2/2/ 
 
              bilaterally.  There was marked spinal tenderness.  The 
 
              surgical incision was well healed and she had a 
 
              transcutaneous nerve stimulator in place.
 
         
 
              Her entire set of diagnostic studies was reviewed, including 
 
              those prior to as well as postoperative.  These studies 
 
              included magnetic resonance images, CT scans and myelograms. 
 
              The magnetic resonance images do not show any change in as 
 
              far as the intervertebral discs are concerned, particularly 
 
              at L3-4, L4-5 or L5-S1.  Postoperatively there is no 
 
              exacerbation of her L4-5 bulging disc nor significant cauda 
 
              equina compression.
 
         
 
              In view of the above, and since it has only been 3 months 
 
              since surgery, I believe conservative treatment is our best 
 
              option.  She is encouraged to continue taking an 
 
              anti-inflammatory drug which she is (Feldene), a sedative 
 
              and an antidepressant which has already been prescribed 
 
              (Imipramine).  I tend to agree with Dr. Margules that 
 
              conservative treatment for now is our best option.  Should 
 
              her condition worsen, a followup myelogram with CT scan may 
 
              be appropriate at some time beyond 6 months 
 
              postoperatively....
 
         
 
              As of December 15, 1987, Dr. Margules determined the 
 
                                                       
 
                                                                
 
         claimant has a functional impairment of 10-15 percent of the body 
 
         as a whole.  Claimant then on February 29, 1988, was involved in 
 
         a fall which occurred while she was working at Glenwood State 
 
         Hospital/School.
 
         
 
              On March 6, 1988, claimant was admitted to Jennie Edmundson 
 
         Memorial Hospital.  J. Fernandez, M.D., opined claimant was 
 
         admitted for the following reasons:
 
         
 
              ...The patient has been under our care as an outpatient 
 
              suffering from a bipolar affective disorder, depressed.  She 
 
              had a son in the child psych program.  She has been 
 
              deteriorating and having a lot of problems, but she was 
 
              being seen as an ouitpatient (sic).  She presented on an 
 
              emergency basis to the hospital.  She was very suicidal and 
 
              severely depressed.  She was feeling very overwhelmed.  She 
 
              stated that she got so bad that she would like to kill her 
 
              husband and her son.  She had been on Norpramin and lithium 
 
              at that time.
 
         
 
              The physical examination showed a left breast mass and a 
 
              ventriculoseptal defect which was asymptomatic.  Her back 
 
              was not examined.  This was done by Dr. Margules who felt 
 
              that she had sustained a sprain of the lumbar spine as the 
 
              result of an injury sustained on 2/29/88.  He recommended 
 
     
 
                              
 
                                                                
 
              conservative treatment.  The patient was also seen by Dr. 
 
              Olesh in gynecological consultation with the impression of 
 
              probable monilial vaginitis and oligo-ovulation.  Direct 
 
              vaginal wet mount showed budding yeast forms with 
 
              pseudohyphae, 2+ bacteria, and moderate WBCs.  GYN Pap smear 
 
              was consistent with mild dysplasia.  Serum lithium 
 
              stabilized around 0.8.  DST was negative.  T4, T3 uptake, 
 
              and TS11 were normal.  Bilateral mammograms showed increased 
 
              fibrocystic changes in the supralateral portion of the left 
 
              breast:  and at least, two well-circumscribed lesions 
 
              measuring 1 and 2 cm in diameter were seen.  They could not 
 
              compare it with the previous films because they were lost, 
 
              but their reports were roughly seen.  An EEG was normal.
 
         
 
              Dr. Fernandez diagnosed claimant with the following:
 
         
 
              DISMISSAL DIAGNOSIS:  Acute exacerbation of bipolar
 
              affective disorder, depressed.
 
         
 
              SECONDARY DIAGNOSIS:  Back pain due to lumbar sprain.
 
         
 
              Six days after her hospital dismissal, claimant was again 
 
         readmitted to Jennie Edmundson Memorial Hospital.
 
         
 
              Dr. Fernandez wrote in his hospital report of April 19, 
 
         1988:
 
         
 
              REASON FOR ADMISSION:  Patient had just been dismissed from 
 
              the hospital six days prior to admission with diagnosis of 
 
              acute exacerbation of bipolar affective disorder, depressed, 
 
              and back pain due to lumbar sprain.  She had been partially 
 
              improved and had been followed in the partial 
 
              hospitalization prgram [sic].  She has been on Prozac, 
 
              Centrax, Feldene and Robaxin, together with lithium and 
 
              initially appeared to be doing better.  However, she 
 
              gradually started deteriorating. By the time she came in 
 
              next for partial program, the patient had deteriorated 
 
              considerably.  She was withdrawn, isolative, just like a 
 
              block of stone, wouldn't talk much, had difficulty coping 
 
              and had feelings of emptiness, lack of energy, wasn't doing 
 
              anything and became very suicidal that evening.  The husband 
 
              called me and stated that she wanted to go see her dead 
 
              mother whose grave was in Earlham, Iowa, close to Des 
 
              Moines.  She was insisting on going at 9:00 p.m. that night.  
 
              I advised him to put limits on her and insist that she go to 
 
              sleep and not do any of this nonsense.  She apparently did 
 
              go to sleep but the following day the situation just 
 
              continued to exacerbate and steadily got worse.  She kept 
 
              talking of feeling very suicidal, wanting to go to talk to 
 
              her dead mother, to communicate with her and discuss matters 
 
              with her.  She appeared to be getting almost psychotic.  She 
 
              seemed to have no interest in anything else and was feeling 
 
              very overwhelmed.  Appetite was very poor. She had shaking 
 
              spells off and on.  She felt overwhelmed with guilt.  The 
 
              situation finally got totally out of hand.  The husband made 
 
                                                       
 
                                                                
 
                   several frantic calls and then just brought her up for 
 
              admission as he just could not handle her anymore.
 
         
 
                 ...
 
         
 
              IMPRESSION:  Acute exacerbation of bipolar affective 
 
              disorder, depressed, query psychosis.
 
         
 
              Claimant was again hospitalized in September of 1988 for 
 
         depression and acute drug overdose.  John W. Marshall, M.D., 
 
         diagnosed claimant in his discharge summary as having:
 
         
 
              DISCHARGE DIAGNOSES:  Acute overdose of Doxipen with 
 
                                   secondary respiratory suppression as a 
 
                                   suicide attempt, currently stable.
 
                                   Major depression.
 
                                   History of low back pain with previous 
 
                                   excision of herniated lumbar disc. 
 
                                   Exogenous obesity.
 
                                   History of possible ovarian cyst 
 
                                   excisions twice by tubal ligation.
 
                                   History of labile hypertension, 
 
                                   controlled with diet.
 
                                   Possible aspiration pneumonia.
 
         
 
              At the time of the hearing claimant testified she had muscle 
 
         spasms, she could not sit for long periods of time, she could 
 
         walk two to three blocks but she walked at a slow pace with a 
 
         limp on the left side.  Claimant stated she only slept three to 
 
         four hours per night and had to use a heating pad.  She also 
 
         stated she was incapable of lifting 35 pounds by herself.
 
         
 
                               APPLICABLE LAW
 
         
 
              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).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of March 10, 1986, is causally 
 
         related to the disability on which she now bases her claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.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).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a.work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              If a claimant contends he has industrial disability he has 
 
         the burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              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, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
                                                       
 
                                                                
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc., (Appeal Decision, 
 
         March 26, 1985).
 
         
 
              For example, a defendant employer's refusal to give any sort 
 
         of work to a claimant after he suffers his affliction may justify 
 
         an award of disability.  McSpadden v. Big Ben Coal Co., 288 
 
         N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 288 N.W.2d 181 
 
         (Iowa 1980)
 
 
 
                               
 
                                                                
 
                               ANALYSIS
 
         
 
              The first issue to address is the nature and extent of 
 
         claimant's entitlement to weekly benefits.  Claimant's treating 
 
         physician, Dr. Margules, opined claimant had a functional 
 
         impairment of 10-15 percent.  No other physician provided an 
 
         impairment rating.  Dr. Margules also determined claimant should 
 
         "permanently discontinue her employment at Glenwood because she 
 
         was physically unfit to perform the duties of her occupation.
 
         
 
              Claimant argues that her psychological condition should be 
 
         considered in determining her permanent partial disability. 
 
         However, claimant failed to include the psychological condition 
 
         as an issue under paragraph 11 of the petition.  Claimant also 
 
         failed to amend the petition to include the psychological 
 
         condition as an issue.  Nor did the hearing assignment order, 
 
         which was filed on August 24, 1988, reflect claimant's 
 
         psychological condition as a subject to be addressed at the 
 
         hearing.  Additionally, claimant neglected to prove by a 
 
         preponderance of the evidence that the psychological condition 
 
         was causally connected to claimant's back injury.
 
         
 
              After claimant's back surgery, she made several attempts to 
 
         return to work.  As of September 23, 1988, claimant was 
 
         prohibited from dispensing medication to residents.  The reasons 
 
         cited were "personnel [sic]" problems.  Claimant, prior to her 
 
         request for long-term disability, made application for several 
 
         leaves of absence, although it is apparent, the requests for 
 
         leave were because of claimant's psychological problems and not 
 
         because of her back condition.
 
         
 
              Claimant's supervisor, Carol Childers, testified that 
 
         claimant's position had not been filled by the date of the 
 
         hearing.  Ms. Childers indicated she could not state whether 
 
         claimant still had the position but that management would need a 
 
         doctor's release before claimant could return to work.  Ms. 
 
         Childers emphasized the point that if claimant wanted to return 
 
         to her position, she would be required to care for 15 residents 
 
         and to be able to lift 50 pounds.
 
         
 
              Claimant indicated she had difficulty lifting her toddler 
 
         son of 25 pounds.  Claimant also reported problems lifting 
 
         laundry of 30 pounds or more.  It is inconceivable how claimant 
 
         could lift residents of 50 pounds, especially in light of the 
 
         fact the residents are often biting, kicking, and throwing 
 
         themselves. Claimant's physician never released her to return to 
 
         work at Glenwood.
 
         
 
              Claimant has presented a list of three nursing homes where 
 
         she could apply for future employment.  Claimant has had prior 
 
         experience as a nurses' aide.  However, given claimant's current 
 
         difficulties with lifting objects, it does not appear claimant is 
 
         capable of handling such a position.  Likewise, it is easy to 
 
         understand why employers may be reluctant to hire claimant as a 
 
                                                       
 
                                                                
 
         nurses' aide since she is unable to lift anything exceeding 30 
 
         pounds.
 
         
 
              Claimant's other job prospects do not look promising. 
 
         Claimant has a high school diploma but other than her nurses' 
 
         aide course, she has had no other training.  It is easy to 
 
         conceptualize claimant as a sales clerk given claimant's 
 
         testimony at the hearing.  However, the earning capacity and the 
 
         actual earnings are generally near the minimum wage level.  In 
 
         light of the foregoing, it is the decision of the undersigned 
 
         that claimant, as a result of her work injury on March 10, 1986, 
 
         has an industrial disability.  Claimant has sustained a permanent 
 
         partial disability in the sum of 22 percent.
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         healing period benefits and, if so, the dates for which claimant 
 
         is entitled to those benefits.
 
         
 
              Section 85.34(1) of the Iowa Code (1987) governs the award 
 
         of hearing period benefits.  That section provides:
 
         
 
              If an employee has suffered personal injury causing 
 
              permanent partial disability for which compensation is 
 
              payable as provided in subsection 2 of this section, the 
 
              employer shall pay to the employee compensation for healing 
 
              period, as provided in section 85.37, beginning on the date 
 
              of injury, and until the employee has returned to work or it 
 
              is medically indicated that significant improvement from the 
 
              injury is not anticipated or until the employee is medically 
 
              capable of returning to employment substantially similar to 
 
              the employment in which the employee was engaged at the time 
 
              of injury, whichever occurs first.
 
         
 
              Dr. Margules determined:
 
         
 
              Mrs. Jackson was last evaluated in this office on August 21, 
 
              1987 at which time it was our opinion that the patient had 
 
              reached maximum medical improvement.
 
         
 
              The patient had returned to work in the beginning of June 
 
              1987.
 
         
 
              Claimant did not provide the exact dates on which she 
 
         claimed she missed work due to her injury of March 10, 1986.  At 
 
         best, the undersigned has been able to determine claimant was in 
 
         the healing period from March 10, 1986 to March 29, 1986 and from 
 
         June 10, 1986 to May 25, 1987.  This period consists of 60.714 
 
         weeks. Claimant has not proven by a preponderance of the evidence 
 
         that other absences from work were causally connected to this 
 
         work injury.
 
         
 
              The next issue to address is whether claimant is entitled to 
 
         medical benefits under section 85.27 of the Iowa Code.  Claimant 
 
         alleges defendant is liable for medical expenses in the sum of 
 
         $20,644.71.  Defendant maintains not all of the expenses are 
 
                                                       
 
                                                                
 
         causally related to claimant's injury and that some of the 
 
         medical expenses are unauthorized, even though they may be 
 
         causally related.  Those medical expenses which deal with 
 
         claimant's psychological condition are clearly not related to 
 
         claimant's work injury of March 10, 1986.  The undersigned 
 
         determines the subsequent medical expenses are causally related 
 
         to claimant's work injury.
 
         
 
         Keleher Pharmacy
 
         
 
                      12-28-88   Feldene             $ 62.35
 
                      12-28-88   Darvocet-100          14.95
 
                      01-15-88   Generic Darvocet      14.95
 
                      01-26-88   Tylenol 3             12.45
 
                      01-26-88   Feldene               62.35
 
                      02-09-88   Tylenol 2             12.45
 
                      02-19-88   Tylenol 2             12.45
 
                      02-29-88   Feldene               62.35
 
                      02-29-88   Tylenol 2             12.45
 
                      04-11-88   Methocarbamol         20.16
 
                      05-11-88   Tylenol 2             12.45
 
                                         Total       $299.36
 
         
 
         MAURICE MARGULES, M.D.
 
         
 
                   03-08-88   Neurosurgical Consult.   $ 65.00
 
         
 
               02-22-87 to 01-22-88   Foster Med. Corp.   $1,453.64
 
         
 
                                 Keleher Pharmacy
 
          
 
                        03-24-86    Tylenol            $  7.19
 
                        04-10-86                          7.19
 
                        06-12-86                          6.37
 
                        06-28-86                          6.37
 
                        09-19-86                          7.47
 
                        09-19-86    Methocarbamol        12.80
 
                        10-29-86    Ponstel              17.22
 
                        11-04-86    Methocarbamol        12.80
 
                        01-05-87    Tylenol               7.70
 
                        01-05-87    Methocarbamol        12.45
 
                        01-21-87    Fiorinal             13.50
 
                        02-16-87    Fiorinal             12.35
 
                        02-26-87    Fiorinal             12.35
 
                        02-19-87    Fiorinal             21.55
 
                        03-16-87    Fiorinal             12.35
 
                        03-30-87    Fiorinal             12.35
 
                        03-30-87    Methocarbamol        12.95
 
                        04-13-87    Feldene              46.75
 
                        05-12-87    Feldene              46.75
 
                        05-01-87    Feldene              12.85
 
                                         Total         $301.31
 
         
 
         Nebraska Clinicians' Group     $125.00
 
         
 
                                                       
 
                                                                
 
               Neurological  Associates of D.M., P.C.     $1,255.00
 
          
 
         Des Moines Bone & Joint     $225.00
 
         
 
                           Des Moines General Hospital
 
                               03-02-87 to 03-16-87
 
         
 
         Electrolyte Series *  $  35.00    Robaxin 750MG UD    4x      
 
         5.00
 
         CPK *E*                  18.00    Robaxin 750MG UD    2x      
 
         2.50
 
         Robaxin 750MG UD          1.25    1st Muscle EMG             
 
         17.50
 
         Hemogram *E*             14.80    Additional Muscles  2x     
 
         30.00
 
         4-North ONC Private     212.00    Paravertebral Muscle       
 
         18.50
 
         Venipuncture Routine      8.50    1st Nerve                  
 
         23.50
 
         Robaxin 750MG UD   4x     5.00    Additional Nerves   4x     
 
         74.00
 
         ESR, Westergren *E*       8.50    3-North Private           
 
         212.00
 
         Metabolic Profile        58.30    Hydrocollator Packs        
 
         21.50
 
         MMPI-1/2 Hour   2x       21.00    Hydrocollator Packs        
 
         21.50
 
         4-North Tele Private    342.00    TENS/FES                   
 
         32.00
 
         Evaluation               25.50    Robaxin 750MG UD    3x      
 
         3.75
 
         Hydrocollator Packs      21.50    Robaxin 750MG UD            
 
         1.25
 
 
 
                               
 
                                                                
 
         Massage                  26.50    3-North Private           
 
         212.00
 
         Hydrocollator Packs      21.50    Sheet Paper Flat           
 
         38.85
 
         4-North Tele Private    342.00    Hydrocollator Packs        
 
         21.50
 
         4-North ONC Private     212.00    TENS/FES                   
 
         32.00
 
         Venipuncture Routine      8.50    Venipuncture Routine        
 
         8.50
 
         Robaxin 750MG UD   4x     5.00    Whirlpool                  
 
         26.50
 
         Fiorinal Tab UD   14x    17.50    TENS/FES                   
 
         32.00
 
         Demerol 50MG CARP  2x    15.70    Spine W/0            P    
 
         310.00
 
         BUN *E*                  10.60    Robaxin 750MG UD    2x      2.50
 
         EKG                      36.00    Robaxin 750MG UD            2.50
 
         4-North ONC Private     212.00    Robaxin 750MG UD            3.75
 
         TSH                      58.30    Fiorinal Tab UD             1.25
 
         Venipuncture Routine      8.50    Fiorinal Tab UD     6x      7.50
 
         Hydrocollator Pack 2x    43.00    Milk of Mag 30ML            1.25
 
         T-3 Uptake               25.40    3-North Private           212.00
 
         
 
         Robaxin 750MG UD   4x    5.00    Hydrocollator Packs         21.50
 
         Fiorinal Tab UD    2x    2.50    Whirlpool                   26.50
 
         4-North ONC Private    212.00    TENS/FES                    32.00
 
         Whirlpool               26.50    Robaxin 750MG UD   2x        2.50
 
         Massage                 26.50    Lithium                     13.80
 
         Hydrocollator Packs     21.50    Robaxin 750MG UD             1.25
 
         Massage                 26.50    Fiorinal Tab UD    5x        6.25
 
         Robaxin 750MG UD   4x    5.00    3-North Private            212.00
 
         3-North Private        212.00    TENS/FES                    32.00
 
         Venipuncture Routine     8.50    Venipuncture Routine         8.50
 
         HBS AG                  17.00    Lithobid 300MG TAB 2x        2.50
 
         Robaxin 750MG UD   4x    5.00    Robaxin 750MG UD   2x        
 
         2.50
 
         3-North Private        212.00    3-North Private            
 
         212.00
 
         Venipuncture Routine     8.50    Sween Cream 9 oz.           
 
         21.60
 
         Tofranil-PM 75MG   2x    2.50    Tofranil-PM 75MG   2x        
 
         2.50
 
         Robaxin 750MG UD   4x    5.00    Robaxin 750MG UD   2x        
 
         2.50
 
         3-North Private        212.00    3-North Private            
 
         212.00
 
         Robaxin 750MG UD   4x    5.00    Venipuncture Routine         
 
         8.50
 
         Liver Profile *E*       71.00    Tofranil-PM 75MG   2x        
 
         2.50
 
         Fiorinal Cap       8x   10.00    Robaxin 750MG UD   2x        
 
         2.50
 
         3-North Private        212.00    Fiorinal Tab UD    8x       
 
         10.00
 
                                                       
 
                                                                
 
         Hydrocollator Packs     21.50    Fiorinal Tab UD    5x        
 
         6.25
 
         Whirlpool               26.50    Tofranil-PM 75MG             
 
         2.50
 
         Massage                 26.50    Robakin 750MG UD             
 
         1.25
 
         Venipuncture Routine     8.50    Venipuncture Routine         
 
         8.50
 
         Tofranil-PM 75MG   2x    2.50
 
           
 
                                       TOTAL CHARGES              $5,434.35
 
         
 
         03-11-87      Central Iowa Radiology      $193.00
 
         
 
              02-04-87    Medical Anesthesia Assoc., P.C.    $200.00
 
         
 
                            Jennie Edmundson Hospital
 
                     01-11-87 to 01-21-87          $4,181.08
 
         
 
                 10-06-87      University of Nebraska      $525.00
 
         
 
                  03-28-86    Jennie Edmundson Hospital    $58.25
 
                    
 
                                                  Total     $5,157.33
 
         
 
              Defendant argues that all charges for Des Moines General 
 
         Hospital are unauthorized medical expenses.  However, those 
 
         charges which are listed above for Des Moines General Hospital 
 
         are found to be reasonable and necessary.  This division has long 
 
         recognized the premise that unauthorized treatment which improves 
 
         an employee's condition and which ultimately may mitigate the 
 
         employer's liability may subsequently be found reasonable and 
 
         necessary for treatment of an injury.  Butcher v. Valley Sheet 
 
         Metal, IV Iowa Industrial Commissioner Report 49 (Appeal Decision 
 
         1983); Rittgers v. United Parcel Service, III Iowa Industrial 
 
         Commissioner Report 210 (Appeal Decision 1982); Hutchinson v. 
 
         American Freight Systems, Inc., I-1 Iowa Industrial Commissioner 
 
         Decision 94 (Appeal Decision 1984).  The evidence, in the instant 
 
         proceeding, is uncontroverted that claimant's condition improved 
 
         subsequent to the therapy which she received at Des Moines 
 
         General Hospital.  Claimant testified she was unable to walk when 
 
         she entered the hospital but she was able to walk upon leaving. 
 
         Therefore, defendant is liable for the aforementioned medical 
 
         expenses at Des Moines General Hospital.
 
         
 
                   FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
              FINDING 1.  As a result of her March 10, 1986 work injury, 
 
         claimant sustained an injury to her back.
 
         
 
              FINDING 2.  Claimant had surgery on her back in January of 
 
                                                       
 
                                                                
 
         1987.
 
         
 
              FINDING 3.  As a result of her March 10, 1986 work injury, 
 
         claimant has a functional impairment of 10-15 percent of the body 
 
         as a whole.
 
         
 
              FINDING 4.  Claimant is a 37-year-old woman with a high 
 
         school education who has prior work experience as a nurses' 
 
         aide.
 
         
 
              FINDING 5.  Claimant has had psychological problems which 
 
         were not causally connected to claimant's back condition.
 
         
 
              FINDING 6.  Claimant is receiving long-term disability as a 
 
         result of her psychological condition.
 
         
 
              CONCLUSION A.  Claimant has met her burden of proving she 
 
         has a 22 percent permanent partial disability.
 
         
 
              CONCLUSION B.  As a result of her injury on March 10, 1986, 
 
         claimant was in the healing period from March 10, 1986 to May 29, 
 
         1986 and from June 10, 1986 to May 25, 1987.
 
         
 
              FINDING 7.  Claimant incurred medical expenses as a result 
 
         of her work injury on March 10, 1986.
 
         
 
              CONCLUSION C.  Defendant is liable for medical expenses in 
 
         the amount of $14,315.99.
 
         
 
                                    ORDER
 
         
 
              THEREFORE, defendant is to pay unto claimant one hundred ten 
 
         (110) weeks of permanent partial disability benefits at the 
 
         stipulated rate of one hundred ninety-nine and 90/100 dollars 
 
         ($199.90) per week.
 
         
 
              Defendant is to pay unto claimant sixty point seven-one-four 
 
         (60.714) weeks of healing period benefits at the stipulated rate 
 
         of.one hundred ninety-nine and 90/100 dollars ($199.90) per 
 
         week.
 
         
 
              Defendant is liable for the payment of medical expenses 
 
         listed previously in the amount of fourteen thousand three 
 
         hundred fifteen and 99/100 dollars ($14,315.99).
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendant is liable for costs as follows:
 
         
 
              1.  Bluffs Psychiatric Associates, P.C., dated May 11, 1988, 
 
         in the amount of fifty and no/100 dollars ($50.00) for medical 
 
         report.
 
         
 
                                                       
 
                                                                
 
              2.  Dr. Robert K. Fryzek, dated March 11, 1988, in the 
 
         amount of thirty and no/100 dollars ($30.00) for medical 
 
         records.
 
         
 
              3.  East Des Moines Clinic, P.C., dated May 15, 1987, in the 
 
         amount of eleven and no/100 dollars ($11.00) for medical 
 
         records.
 
         
 
              4.  Neurosurgical Associates of Des Moines, P.C., dated 
 
         March 19, 1987, in the amount of twenty-seven and 50/100 dollars 
 
         ($27.50) for medical records.
 
         
 
              5.  Jennie Edmundson Hospital, dated June 18, 1986, in the 
 
         amount of six and no/100 dollars ($6.00) for medical records.
 
         
 
              Defendant shall file a final report upon payment of this 
 
         award.
 
         
 
         
 
              Signed and filed this 31st day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                       MICHELLE A. McGOVERN
 
                                       DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Sheldon M. Gallner
 
         Attorney at Law
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                       
 
                                                                
 
         803 3rd Ave.
 
         P. 0. Box 1588
 
         Council Bluffs, Iowa  51502
 
         
 
         Ms. Joanne Moeller
 
         Assistant Attorney General
 
         Hoover Bldg.
 
         Des Moines, Iowa  50319
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                       
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            5-1803
 
                                            Filed August 31, 1989
 
                                            MICHELLE A. McGOVERN
 
         
 
                  BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DIANE JACKSON,
 
         
 
              Claimant,
 
                                                    File No. 818950
 
         vs.
 
                                                 A R B I T R A T I 0 N
 
         GLENWOOD STATE HOSPITAL/SCHOOL,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         5-1803
 
         
 
              Claimant was awarded a 22 percent permanent partial 
 
         disability after she sustained an injury at work.  Claimant's 
 
         psychological condition was not causally connected to claimant's 
 
         back condition.