BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         MARLENE R. WAGNER,
 
         
 
              Claimant,
 
                                               File No. 818966
 
         vs.
 
         
 
         MANLY CARE CENTER,                 A R B I T R A T I O N
 
         
 
              Employer,                        D E C I S I O N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Marlene 
 
         Wagner, claimant, against Manly Care Center, employer, and 
 
         Travelers Insurance Company, insurance carrier, to recover 
 
         benefits under the Iowa Workers' Compensation Act as a result of 
 
         an injury sustained on March 16, 1986.  This matter came on 
 
         before the undersigned deputy industrial commissioner October 13, 
 
         1988.  The record was considered fully submitted at the close of 
 
         the hearing.  The record in this matter consists of the testimony 
 
         of claimant, Robert Wagner, her husband, and Laura Wade; 
 
         claimant's exhibits 1 through 13, inclusive, and defendants' 
 
         exhibit B.
 
         
 
                                      ISSUE
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved October 13, 1988, the sole issue presented for 
 
         resolution is the extent of claimant's permanent partial 
 
         disability.  Claimant also presented an issue of unreimbursed 
 
         mileage expenses and the expenses incurred for independent 
 
         medical examination pursuant to Iowa Code section 85.39.  
 
         Defendants have stipulated to claimant's entitlement to the 
 
         mileage expenses and the expenses involved in the independent 
 
         medical examination, advising that. such expenses would be 
 
         promptly paid.  Based on the professional statement of counsel, 
 
         therefore, these issues will not be addressed.
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant sustained an injury which arose out of and in the 
 
         course of her employment on March 16, 1986 when she twisted and 
 
         fell backward into the wall of a residents bathroom.  Claimant 
 
         testified she felt immediate pain in her back and down her right 
 
         leg but that she finished out the shift.  Claimant described that 
 
         when she returned home after work that day she could "hardly make 
 
         it into the house."  Claimant stated she saw A. J. Wolbrink, 
 
         M.D., orthopedic surgeon, who advised she not work for a period 
 
         of time and to follow a conservative treatment program of bed 
 
         rest and therapy.  Claimant stated she was hospitalized for pain 
 
         in mid-April, 1986, and that her condition remained about the 
 

 
         
 
         WAGNER V. MANLY CARE CENTER
 
         PAGE 2
 
 
 
         
 
         
 
         same.  Claimant returned to work July 3, 1986 on light duty, 
 
         every other day, and worked on that schedule until March 16, 1987 
 
         when she was released to return to full-time work with a 50 pound 
 
         lifting restriction.  Claimant remained in employment with 
 
         defendant employer until May 6, 1987 at which time she stated she 
 
         was permanently laid off because of her lifting restrictions.
 
         
 
              Claimant testified she continues to experience the same 
 
         symptoms, that is, pain in her right lower back radiating into 
 
         her buttocks and sides, that she experienced at the time she was 
 
         injured, and that she has "learned to live with" the constant 
 
         pain.  Claimant testified she is no longer able to do many of the 
 
         activities she enjoyed prior to her injury particularly dancing, 
 
         boating, fishing, driving, shopping, bowling, yard work and being 
 
         a spectator at athletic events.  Claimant testified that in the 
 
         late summer of 1985 she began feeling a burning sensation down 
 
         her right leg and sought medical treatment therefor, but by 
 
         December 1985, was totally released to return to her employment 
 
         with no restrictions, that she was "feeling good" and that she 
 
         had no problems doing her job.  Concerning the injury under 
 
         review, claimant stated that her condition is no worse and no 
 
         better from the time she first incurred the injury.
 
         
 
              Claimant stated that since her separation from employment 
 
         with defendant employer, she has worked at Liberty Square, a 
 
         facility for the "mentally retarded" in her regular employment as 
 
         a certified medication aide.  Claimant began this employment on 
 
         August 27, 1987 and left in January 1988 because of a 
 
         dissatisfaction with the hours worked (11:00 p.m.-7:00 a.m), some 
 
         housekeeping responsibilities, such as mopping, which she found 
 
         difficult to perform and because of a fear of further injury 
 
         should one of the residents have a "temper tantrum."  Claimant 
 
         testified she began her current employment with Nora Springs Care 
 
         Center on January 29, 1988 and that she works as a certified 
 
         medication aide earning $4.65 per hour.  Claimant felt this 
 
         employment, with its hours 7:00 a.m. to 3:00 p.m., "works well" 
 
         although she stated that when she comes home from work she is 
 
         able to do little else than lie down on the couch with a heating 
 
         pad on her back.  Claimant explained that this job is within the 
 
         lifting restrictions imposed by Dr. Wolbrink as it does not 
 
         require her to do any lifting over 50 pounds.  Claimant testified 
 
         that she "does not know how much longer [she] can continue to 
 
         work on the floor" and that because she wants to remain within 
 
         the health care field, she is now looking to get into the field 
 
         of health care administration and has recently interviewed for 
 
         such a position where, if hired, she will be afforded the 
 
         opportunity to acquire her "administrator's license."
 
         
 
              Both Robert Wagner, claimant's husband, and Laura Wade 
 
         confirmed that to which claimant testified with regard to her 
 
         current abilities, inabilities, symptoms and past medical 
 
         history.  Mr. Wagner added only that claimant has difficulty 
 
         sleeping if she has "more back pain" and that at times claimant 
 
         "drags" her right foot, particularly when she is tired.
 
         
 
              The medical records of T. C. Mead, M.D., and A. J. Wolbrink, 
 
         M.D., revealed claimant was seen August 20, 1985 by Dr. Mead for 
 
         problems with her low back since July 1985 when claimant noticed 
 
         a "burning" in her right side of her back while sitting through 
 
         sporting events.  X-rays taken at that time revealed there to be 
 
         what "probably represents a partial sacralization of L-5" with 
 
         "no evidence of spondylolisthesis, spondylosis.  A CT scan taken 
 
         in September 1985 was negative and on September 28, 1985, 
 
         claimant was released for light duty work.  On October 11, 1985, 
 
         Dr. Mead noted claimant's back was "improving nicely" and on 
 
         December 9, 1985, claimant was released for unrestricted duty.  
 
         No record is made that claimant returned to see either Dr. Mead 
 
         or Dr. Wolbrink until March 17, 1986 when Dr. Wolbrink reported 
 

 
         
 
         
 
         
 
         WAGNER V. MANLY CARE CENTER
 
         PAGE   3
 
         
 
         
 
         claimant had pain in her back.  Dr. Wolbrink diagnosed acute 
 
         strain of the back from a fall at work" and advised conservative 
 
         treatment consisting essentially of bed rest.  On June 16, 1986, 
 
         Dr. Wolbrink opined that claimant was not strong enough to try it 
 
         back to work yet" but released claimant on June 27, 1986 to try 
 
         to work every other day with restrictions of no lifting over 10 
 
         pounds and to avoid reaching overhead and excessive bending.  Dr. 
 
         Wolbrink noted no change in claimant's condition from July 17, 
 
         1986 through his office notes on October 27, 1986.  The medical 
 
         records reveal claimant was next seen on February 13, 1987 at 
 
         which time Dr. Wolbrink reported:
 
         
 
                 Returns for further evaluation at the request of the 
 
              insurance company as noted.  Patient relates that she 
 
              hadn't seen very much change, but Thanksgiving Day was 
 
              quite a bit more sore and so that she could not get out 
 
              of bed and so she had chiropractic manipulation for a 
 
              couple of weeks and may have seen a little bit of 
 
              relief from that and then about Decmeber [sic] 29th 
 
              there was some change in administration or insurance 
 
              companies and so a physical was required and she was 
 
              given just 2 days to obtain this.  She therefore saw 
 
              her family doctor, Dr. Boeke who did see her and gave 
 
              her permission to return to work a maximum of 4 days a 
 
              week and no lifting over 30 pounds.  She has been able 
 
              to carry on that schedule since then and usually does 
 
              not work 2 days in a row, except for an occasional 
 
              weekend.  She seems to be tolerating that level of 
 
              activity.  She is concerned now because she has 
 
              received a letter in which they tell her that there may 
 
              be about a 60 day trial period and then she will need 
 
              to go to full work or employment may not be available 
 
              for her.
 
         
 
                 ....
 
         
 
                 ...I think she has seen improvement so will attempt 
 
              her return to work fulltime, but no lifting over 50 
 
              pounds and proper lifting is going to be extremely 
 
              important to her.
 
         (Claimant's Exhibit 1, Page 7)
 
         
 
              Claimant was released from Dr. Wolbrink's care on March 16, 
 
         1987 and on April 2; 1987, he opined that claimant has a 
 
         permanent impairment of four percent of the whole person due to 
 
         the residuals of her back injury of March 1986.  On November 12, 
 
         1987, the doctor clarified his opinion in a letter to claimant's 
 
         counsel stating:
 
         
 
                 At this time I do not see reason to change my 
 
              opinion stated on April 2, 1987, that Mrs. Wagner has a 
 
              permanent impairment of 4 percent of the whole person 
 
              due to the residuals of her back injury of March 1986.  
 
              In other words, this states it is due to that injury 
 
              and not due to pre-existing conditions.
 
         (Cl. Ex. 8)
 
         
 
              Claimant was seen by John R. Walker, M.D., of Orthopaedic 
 
         Specialists, in August 1987 for "diagnosis, evaluation and 
 
         suggestions for treatment" at the request of claimant's counsel.  
 
         Dr. Walker concluded:
 
         
 
                 We have taken AP & lateral, right, left, oblique 
 

 
         
 
         
 
         
 
         WAGNER V. MANLY CARE CENTER
 
         PAGE   4
 
         
 
         
 
              views, and spot views of the lumbar spine and they 
 
              reveal that the patient has what appears to be four 
 
              lumbar vertebrae only and sacralization of L-5.  A 
 
              dorsal spine x-ray reveals that she does indeed have 
 
              the usual and normal number of 12 dorsal or thoracic 
 
              vertebrae, therefore, she has a definite sacralization 
 
              of the 5th lumbar vertebra or only four true lumbar 
 
              vertebrae.
 
         
 
                 The patient has some fogginess and increased 
 
              sclerosis and changes about the right sacroiliac joint 
 
              itself.  The left sacroiliac joint appears to be 
 
              perfectly normal.  It is possible that gas in the bowel 
 
              is giving us some of this reading as far as the right 
 
              sacroiliac joint is concerned.
 
         
 
                 ....
 
         
 
                 At the present time the patient has a rather high 
 
              temporary impairment which reflects in her inability of 
 
              course to get a job unfortunately.  I would state that 
 
              if indeed we did successfully treat the right 
 
              sacroiliac joint and the lumbosacral joint and got a 
 
              good result I would expect her to end up with a 
 
              permanent, partial impairment of 12% of the body as a 
 
              whole.  On the other hand, her temporary, partial 
 
              impairment, is much higher as she remains not yet 
 
              successfully treated.
 
         
 
         (Cl. Ex. 7, pp. 3-4)
 
         
 
              At the request of defendant insurance carrier, 
 
         rehabilitation consultants with Resource Opportunity, Inc., began 
 
         working with claimant in the fall of 1987.  Melvin Bobo, the 
 
         first consultant to work with claimant reported his impressions 
 
         on September 17, 1987 by stating:
 
         
 
                 Mrs. Wagner, a 37-year-old nurse/medication aide 
 
              with the Manly Care Center, experienced an injury to 
 
              her back on April 16, 1986.  Since the time of injury, 
 
              the client returned to light duty employment as a 
 
              medication aide with the Manly Care Center under 
 
              previous ownership of the facility.  She remained in 
 
              this light duty capacity for a number of months.  Upon 
 
              purchase of the Manly Care Center by another company, 
 
              the client was laid off.  The reason for lay-off as 
 
              stated by the new administrator of the Care Center was 
 
              due to company policy of no permanent light duty nurse 
 
              aide positions available.
 
         
 
                 Upon being laid off in May, 1987, the client 
 
              attempted to secure employment opportunities elsewhere.  
 
              On August 27, 1987 the client secured employment with a 
 
              former employer, Liberty Care located in Osage; Iowa, 
 
              as a medication aide on the 11 p.m. to 7 a.m. shift.  
 
              The client expressed she took the position with Liberty 
 
              Care due to the family's financial need for a second 
 
              income.  The client states she is finding the hours 
 
              currently worked to be creating a hardship in her 
 
              family life.  Stated by the client, her husband is not 
 
              supportive of her working hours which serves to create 
 
              marital conflict between them.  The client states she 
 
              does not know how much longer she can take working in 
 

 
         
 
         
 
         
 
         WAGNER V. MANLY CARE CENTER
 
         PAGE   5
 
         
 
         
 
              the position for both physical and emotional 
 
              perspectives.  The client expresses she wishes to 
 
              secure other employment in the community as soon as 
 
              possible.
 
         
 
                 The client's physician, Dr. Wolbrink in Mason 
 
              City,.states that the client has a 50-pound lifting 
 
              restriction.  The client's physician expresses his 
 
              opinion that the client will not be able to return to 
 
              her former employment as a nurse aide due to the 
 
              frequent and continuous bending and lifting which would 
 
              serve to aggravate the client's physical condition.  
 
              The counselor is of the impression that the client is 
 
              employable in the light to mid-moderate physical 
 
              demands vocational category and within a salary range 
 
              of between $3.50 to $5.00 per hour.
 
         
 
         (Defendants' Exhibit B)
 
         
 
              Bill Nordstrom, the second vocational consultant to work 
 
         with claimant, reported on December 28: 1987 that claimant:
 
         
 
              ... felt that pursuing employment at this time on her 
 
              behalf in the Osage, Iowa area in the medical field was 
 
              less than fruitful.  She stated she understood her 
 
              limitations eliminated her from being considered for 
 
              any aide position.  The consultant visited with the 
 
              client about what else she would like to do other than 
 
              work in the medical field.  The client stated that she 
 
              had no desire to do anything else.
 
         
 
         (Def. Ex. B)
 
         
 
              Records reflect claimant's file was placed on hold in 
 
         January 1988 when it was felt no further vocational activity 
 
         would be beneficial.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              As a claimant has an impairment to the body as a whole an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
         
 
              Iowa Code subsection 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.
 
         
 
                 If it is determined that an injury has produced a 
 

 
         
 
         
 
         
 
         WAGNER V. MANLY CARE CENTER
 
         PAGE   6
 
         
 
         
 
              disability less than that specifically described in 
 
              said schedule, compensation shall be paid during the 
 
              lesser number of weeks of disability determined, as 
 
              will not exceed a total amount equal to the same 
 
              percentage proportion of said scheduled maximum 
 
              compensation.
 
         
 
              There is no dispute that claimant sustained an injury which 
 
         arose out of and in the course of her employment which is the 
 
         cause of both temporary and permanent disability.  The only issue 
 
         presented for resolution is the extent of permanent disability 
 
         stipulated to be an industrial disability to the body as a 
 
         whole.
 
         
 
              Dr. Wolbrink, claimant's principal treating physician, has 
 
         opined claimant has a permanent partial impairment of four 
 
         percent to the body as a whole as a result of the work injury of 
 
         March 17, 1986.  Dr. Walker, who saw claimant on one occasion for 
 
         an independent medical examination, rendered what appears to the 
 
         undersigned to be a rather confusing opinion but nevertheless 
 
         appears to agree that claimant has sustained a permanent partial 
 
         impairment as a resuit of the work injury.  Functional disability 
 
         is an element to be considered in determining industrial 
 
         disability which is the reduction of earning capacity, but 
 
         consideration must also be given to the injured employee's age, 
 
         education, qualifications, experience and inability to engage in 
 
         employment for which he is fitted.  Olson v. Goodyear Service 
 
         Stores, 255 Iowa 1112, 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 later 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. 
 

 
         
 
         
 
         
 
         WAGNER V. MANLY CARE CENTER
 
         PAGE   7
 
         
 
         
 
          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 is currently 37 years old with a tenth grade 
 
         education who has since acquired her GED and successfully 
 
         completed certification programs as a nurse's aide and a 
 
         medication aide.  Claimant's prior work experience consisted of 
 
         waitressing and babysitting before she entered the health care 
 
         field in 1980.  Claimant has been successful in returning to the 
 
         health care field since her injury nothwithstanding the 
 
         vocational experts' opinions that "there are no health care 
 
         occupations known ... for which [claimant] is currently trained 
 
         or physically capable of performing."  Clearly, claimant's 
 
         ability to persevere to return to work speaks well for her 
 
         motivation.  However claimant was unemployed for a period of time 
 
         following her discharge from employment with defendant employer 
 
         during which time she received unemployment insurance benefits.  
 
         This discharge was directly related to her work injury since 
 
         defendant employer did not want to maintain claimant as an 
 
         employee with her work restrictions.  The Iowa Supreme Court 
 

 
         
 
         
 
         
 
         WAGNER V. MANLY CARE CENTER
 
         PAGE   8
 
         
 
         
 
         recently stated:  [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).
 
         
 
              It is unfortunate that a health care employer would take 
 
         such a position with an injured worker.  Claimant wants to 
 
         continue in this field and is looking for administration.  
 
         Although this will require some education, claimant appears to be 
 
         intellectually capable of and appropriately motivated to 
 
         successfully complete such an endeavor.
 
         
 
              It does not go without note that claimant has suffered some 
 
         back problems previously.  However, claimant appears to have 
 
         recovered well therefrom.  Claimant's earnings have suffered some 
 
         from this injury and, as well, her capacity to earn due to the 
 
         injury and restrictions has been hampered.  Considering then all 
 
         of the elements of industrial disability enumerated above, it is 
 
         accepted that claimant has sustained a permanent partial 
 
         disability of 15 percent for industrial purposes entitling her to 
 
         75 weeks of permanent partial disability benefits.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore based on all of the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  Claimant sustained an injury to her lower back which 
 
         arose out of and in the course of her employment on March 16; 
 
         1986 when she twisted and fell backward into a wall in a 
 
         patient's bathroom.
 
         
 
              2.  Claimant felt immediate pain and perceived persistent 
 
         pain since that time.
 
         
 
              3.  Claimant was treated conservatively, was unable to work 
 
         from March 16, 1986 through July 3, 1986 and able to work only on 
 
         a part-time basis from July 3, 1986 through March 16, 1987.
 
         
 
              4.  Claimant was released to return to full-time work on 
 
         March 17, 1987 and did return with restrictions concerning 
 
         lifting, bending and reaching.
 
         
 
              5.  Claimant was discharged from her employment as a resuit 
 
         of the restrictions on May 6, 1987.
 
         
 
              6.  Claimant wanted to remain in the health care field and 
 
         was unable to secure employment in that field until August 27, 
 
         1987.
 
         
 
              7.  Claimant left this employment because of a 
 
         dissatisfaction with the hours and duties but secured employment 
 
         as a certified medication aide within her restrictions on January 
 
         29, 1988 and remains in that employment.
 
         
 
              8.  Claimant is 37 years old, has a tenth grade education, 
 
         secured her GED and completed certification programs as a nurse's 
 
         aide and medication aide.
 
         
 
              9.  Claimant is desirous of remaining in the health care 
 
         field but wants to move into administration which will require 
 
         additional education.
 
         
 

 
         
 
         
 
         
 
         WAGNER V. MANLY CARE CENTER
 
         PAGE   9
 
         
 
         
 
             10.  Claimant had previous back problems which had resolved 
 
         prior to March 16, 1986.
 
         
 
             11.  Claimant perceives that her condition has neither 
 
         improved nor deteriorated since the time of the injury.
 
         
 
             12.   Claimant's capacity to earn has been hampered as a 
 
         result of the work injury of March 16, 1986.
 
         
 
             13.  Claimant has sustained a permanent partial disability of 
 
         15 percent for industrial purposes.
 
         
 
                                CONCLUSION OF LAW
 
         
 
              Wherefore, based on principles of law previously stated, the 
 
         following conclusion of law is made:
 
         
 
              Claimant has sustained a permanent partial disability of 15 
 
         percent for industrial purposes as a result of the work injury of 
 
         March 16, 1986 entitling her to 75 weeks of permanent partial 
 
         disability benefits.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Defendants are to pay unto claimant seventy-five (75) weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         of one hundred five and 60/100 dollars ($105.60) per week 
 
         commencing March 17, 1987.
 
         
 
              Defendants shall receive full credit for all permanent 
 
         partial 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 85.30.
 
         
 
              A claim activity report shall be filed 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 24th day of October, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                        DEBORAH A. DUBIK
 
                                        DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 N. Adams
 
         P.O. Box 679
 
         Mason City, IA 50401
 
         
 
         Mr. Mark A. Wilson
 

 
         
 
         
 
         
 
         WAGNER V. MANLY CARE CENTER
 
         PAGE  10
 
         
 
         
 
         Attorney at Law
 
         30 Fourth St NW
 
         P.O. Box 1953
 
         Mason City, IA 50401
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803
 
                                               Filed October 24, 1988
 
                                               Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         MARLENE R. WAGNER,
 
         
 
              Claimant,
 
                                                 File No. 818966
 
         vs.
 
         
 
         MANLY CARE CENTER,                   A R B I T R A T I O N
 
         
 
              Employer,                          D E C I S I O N
 
         
 
         and
 
         
 
         TRAVELERS INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803
 
         
 
              Claimant, a certified nurse's aide and certified medication 
 
         aide, sustained an injury to her back which arose out of and in 
 
         the course of her employment.  Claimant was rated as having a 4% 
 
         permanent partial impairment and was restricted against lifting 
 
         more than 50 pounds.  Defendant employer discharged claimant as a 
 
         result of the restriction.  Claimant was able to secure 
 
         substantially similar employment at a substantially similar wage 
 
         although the wage was somewhat lower.  Claimant found to have an 
 
         industrial disability of 15%.
 
         
 
 
        
 
 
 
 
 
        
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        JUDITH BLAND,
 
        
 
            Claimant,
 
             
 
        vs.
 
        
 
                                                  File No. 819160
 
        GLENWOOD STATE HOSPITAL
 
        SCHOOL,                                A R B I T R A T I O N
 
        
 
            Employer,                            D E C I S I O N
 
        
 
        and
 
        
 
        STATE OF IOWA,                               F I L E D
 
        
 
             Insurance Carrier,                     DEC 28 1989
 
             Defendants.
 
                                                INDUSTRIAL SERVICES
 
             
 
             
 
                                      INTRODUCTION
 
        
 
             This is a proceeding in arbitration brought by Judith Bland, 
 
             claimant, against Glenwood State Hospital School, employer and 
 
             State of Iowa, insurance carrier, defendants, for benefits as the 
 
             result of an injury that occurred on February 27, 1986. A 
 
             hearing was held in Council Bluffs, Iowa, on September 8, 1988, 
 
             and the case was fully submitted at the close of the hearing. 
 
             Claimant was represented by Sheldon Gallner. Defendants were 
 
             represented by Greg Knoploh. The record consists of the 
 
             testimony of Judith Bland, claimant; Rebecca Betts, claimant's 
 
             friend; and joint exhibits 1 through 33. Both attorneys 
 
             submitted excellent briefs.
 
        
 
                                      STIPULATIONS
 
        
 
             The parties stipulated to the following matters at the time 
 
             of the hearing:
 
        
 
            That an employer-employee relationship existed between 
 
        claimant and employer at the time of the injury.
 
        
 
            That claimant sustained an injury on February 27, 1986, 
 
        which arose out of and in the course of employment with employer.
 
        
 
            That the injury was the cause of both temporary and 
 
        permanent disability.
 
        
 
             That claimant is entitled to and has been paid temporary 
 
             disability benefits from March 1, 1986 to April 7, 1986 and again 
 
             from May 24, 1986 to January 21, 1988 and that temporary 
 
             disability benefits are not an issue in this case at this time.
 
        
 
            That the type of permanent disability, if the injury is 
 
        found to be the cause of permanent disability, is industrial 
 
        disability to the body as a whole.
 
        
 

 
        
 
 
 
 
 
            That the commencement date for permanent disability 
 
        benefits, if such benefits are awarded, is January 21, 1988.
 
        
 
            That the rate of compensation, in the event of an award, is 
 
        $236.37 per week.
 
        
 
            That all requested medical benefits have been or will be 
 
        paid by defendants.
 
        
 
            That defendants are entitled to a credit for 117 weeks of 
 
        workers' compensation benefits paid to claimant prior to hearing 
 
        at the rate of $236.37 per week.
 
        
 
            That there are no bifurcated claims.
 
        
 
                                      ISSUES
 
        
 
             The parties submitted the following issues for determination 
 
             at the time of the hearing:
 
        
 
            Whether claimant is entitled to permanent disability 
 
        benefits, and if so, the nature and extent of benefits to which 
 
        she is entitled.
 
        
 
            Whether claimant is an odd-lot employee.
 
        
 
            Whether defendants are entitled to a credit for certain 
 
        long-term disability benefits that were paid prior to hearing and 
 
        which were continuing to be paid at the time of hearing.
 
        
 
                            SUMMARY OF THE EVIDENCE
 
        
 
             Claimant, born July 4, 1938, was 47 years old at the time of 
 
             her injury and 50 years old at the time of hearing. She 
 
             completed high school in 1956. She completed vocational training 
 
             to become a licensed practical nurse in 1968. She has received 
 
             continuing education as an LPN and is now an LPN II. She said 
 
             she was in good health and denied having any workers' 
 
             compensation claims prior to this injury. She has performed 
 
             private duty nursing, hospital duty nursing and all kinds of 
 
             patient care. She lifted equipment and patients without any 
 
             problems [exhibit 22(2) and 22(3)].
 
        
 
             Claimant started to work with employer in 1983 medicating, 
 
             treating, bathing, dressing and generally caring for the 
 
             residents. She liked her job, got along well and received no 
 
             reprimands or demotions. The patients sometimes suffered falls, 
 
             seizures and attacked claimant. She had received mandatory 
 
             training on how to subdue patients without harm to the patient or 
 
             to herself.
 
        
 
            On February 27, 1986, claimant was working in area four of 
 
        Lacey Hall, which is a hospital unit for residents with 
 
        pneumonia, infections and seizures. Claimant and an assistant 
 
        were attempting to remove a 180 pound patient, who was having a 
 
        seizure, from a wheelchair and place him in his bed. The 
 
        assistant lifted the patient by his belt loops. The belt loops 
 
        broke and claimant caught the patient in her arms. In trying to 
 
        get him onto the bed, she ended up in the bed also. Claimant 
 
        testified that her neck popped and that she immediately 
 
        experienced pain in her neck, back and right leg. The accident 
 
        was reported to her superior and the doctor on duty prescribed 
 
        Parafon Forte, Ecotrin, ice and heat for back strain and pain. 
 
        She finished that day, but was not able to work the following 
 
        day. Claimant contended that she had headaches so bad she thought 
 
        her head would fall off. Her back hurt so bad it felt like it 
 

 
        
 
 
 
 
 
        would not hold her up. Her right leg would not work.
 
        
 
            The employer's physician directed her to see Maurice P. 
 
        Margules, M.D., a neurosurgeon. He took x-rays and a myelogram 
 
        and prescribed pain killers and muscle relaxants. He told her it 
 
        was severe back strain and pain and encouraged her to try to 
 
        work. She tried to work five or ten days, but she just couldn't 
 
        do it due to pain in her neck and back and her right leg was 
 
        swollen. She said she was in tears at the end of the shift.
 
        
 
            One time when Dr. Margules was out of the office she was 
 
        seen by R. Schuyler Gooding, M.D., a neurosurgeon, in Dr. 
 
        Margules office. He was not familiar with the case and requested 
 
        the x-rays and myelogram from the hospital. He showed her an 
 
        intervertebral disc in her neck and back. Dr. Gooding performed 
 
        a cervical spinal fusion at C6-7 and this resolved her neck pain, 
 
        but her back and leg got worse. He then performed two lumbar 
 
        laminectomies, but they did not help her lower back. She still 
 
        uses a cane today. Claimant lost 64 pounds, but continues to 
 
        have back pain.
 
        
 
            Later, Michael Morrison, M.D., an orthopedic surgeon, 
 
        performed surgery on her right knee on an outpatient basis.
 
        
 
            Claimant saw two vocational rehabilitation specialists 
 
        retained by employer, Mark M. Mergen and Vincent Antonelli, but 
 
        claimant said that she was never able to return to work again. 
 
        She also saw James T. Rogers, who is a vocational rehabilitation 
 
        specialist retained by her attorney.
 
        
 
             At the present time she takes three medications (l) Paragon 
 
             Forte, double strength; (2) Tylenol #3, every two to four hours 
 
             for pain; and (3) a stool softener. She can walk to the bathroom 
 
             and walk perhaps one-half of a block. She only sleeps one, two 
 
             or four hours per night. She can only sit in a chair comfortably 
 
             for 10 to 15 minutes at the most. Her normal day is to sit in a 
 
             recliner, lie on a bed, walk around the house, lie down 
 
             frequently and lie on an eggshell mattress prescribed by the 
 
             hospital to prevent bed sores. She can drive her car about one 
 
             and one-half miles to the grocery store. Her car has seats that 
 
             let her lie down. She said she could not perform housework, take 
 
             care of her house or cook meals. She has to have care because 
 
             she can't take care of herself. She alleged that she would like 
 
             to work, but can't. She could not visualize any employer hiring 
 
             her at her age with her problems for sedentary work or otherwise.
 
        
 
            Claimant acknowledged that she returned to work for 10 days, 
 
        but performed light duty with charts and pills. She admitted she 
 
        had a pulled muscle in 1985 that caused back pain, but she then 
 
        had no problems until this injury. On December 11, 1985, she was 
 
        taken to the emergency room for nausea, left sided chest pain and 
 
        shortness of breath. An EKG was within normal limits She was 
 
        referred back to her personal physician (ex. 40). She denied any 
 
        major problems with her back. She maintained she has had severe 
 
        low back pains dating from the time of this injury. She 
 
        acknowledged that Dr. Gooding imposed weight restrictions of 10 
 
        pounds regularly and 25 pounds occasionally, but she contended 
 
        that she is unable to lift a 5 pound bag of sugar. She further 
 
        contended that Dr. Gooding told her not to lift more than 5 to 10 
 
        pounds. She disagreed with Dr. Gooding that the loss of motion 
 
        was only minimal.
 
        
 
            Claimant conceded she had not applied for employment since 
 
        the injury. She testified she was married in October of 1985, 
 
        injured in February of 1986 and divorced on June 1, 1987. She 
 
        admitted the divorce was stressful, but denied that it aggravated 
 

 
        
 
 
 
 
 
        her symptoms. Dr. Gooding said it could aggravate her symptoms 
 
        (ex. 44, p. 36). She granted that she had taken three trips 
 
        outside of Iowa, two of them to Missouri and one to Ohio, but her 
 
        daughter drove and she lay down 90 percent of the trip. One trip 
 
        to Missouri was to see her five-month old grandson who was 
 
        supposed to die in two days. The trip to ohio was for Bible 
 
        study to reinforce her strong belief in God and to keep her 
 
        sanity. She admitted that Dr. Gooding said not to use a cane 
 
        until her knee went out and then he told her to use the cane.
 
        
 
            Rebecca Betts, a friend of claimant, knew claimant from two 
 
        to four months prior to the injury. Formerly, claimant was 
 
        active. Claimant could shop all day, roller skate, go on picnics, 
 
        drive her car anywhere and when they walked, the witness had to 
 
        run to keep up. Now claimant is restricted. Claimant may be in 
 
        bed for a week at a time, may live in her recliner, she cannot 
 
        walk in the mall, and she cannot go grocery shopping. The 
 
        witness shops for claimant. The witness stayed with claimant 
 
        overnight once and claimant was up all night until 5:30 a.m. 
 
        Claimant only slept one-half hour to 45 minutes. Claimant must 
 
        alternate standing, sitting and lying down. Claimant uses a cane 
 
        or the wall all of the time to support herself in order to walk. 
 
        Betts testified that she has seen her leg go out and she has 
 
        caught her more than once. Betts said she caught her twice 
 
        yesterday.
 
        
 
             Dr. Margules hospitalized claimant from March 16, 1986 to 
 
             March 21, 1986. He said x-rays demonstrated only degenerative 
 
             disc disease and arthritis. Myeloradiculography showed 
 
             degenerative disc disease in the lumbar and cervical regions [ex. 
 
             36(1)]. Dr. Margules concluded: "FINAL DIAGNOSIS: Sprain of 
 
             the lumbar spine due to trauma sustained on March 27, 1986, while 
 
             on duty at the Glenwood State Hospital school. Sprain of the 
 
             cervical spine sustained as in #1." [ex. 36(2)].
 
        
 
            Claimant was released to return to work by Dr. Margules on 
 
        April 7, 1986 (exs. 35 & 41).
 
        
 
            Using the same myelogram, Dr. Gooding, on May 24, 1986, 
 
        found bilateral nerve root defects. He performed an anterior 
 
        C6-C7 discectomy and interbody fusion on May 30, 1986 (exs. 33 & 
 
        34).
 
        
 
            Dr. Gooding readmitted claimant on November 24, 1986 and 
 
        performed an interlaminal excision of herniated nucleus pulposus, 
 
        L4-L5 through a right posterolateral approach on November 24, 
 
        1986 [exs. 29-32(2)].
 
        
 
            Dr. Gooding then reported claimant fell heavily on her right 
 
        knee on May 11, 1987, increasing the low back pain radiating into 
 
        the right leg. He prescribed the Nutri System weight reduction 
 
        plan because claimant was 5' 9" and weighed 260 pounds (ex. 20). 
 
        On June 24, 1987, he performed an L4-L5 decompressive 
 
        laminectomy, right foraminotomy, removal of scar, and lysis of 
 
        adhesions about the L5 nerve root (ex. 15). During this 
 
        hospitalization she was provided physical therapy and a TENS unit 
 
        (ex. 13). The discharge diagnosis was:
 
        
 
             DIAGNOSIS: Residual scar. secondary to previous L4-L5 disc 
 
                       surgery and additional trauma. Progressively 
 
                       disabling and recurrent right sciatica, secondar 
 
                       [sic] to diagnosis #1, improved.
 
        
 
                       Status post previous cervical disc surgery with 
 
                       satisfactory results.
 
                       
 

 
        
 
 
 
 
 
                       Exogenous obesity, marked.
 
        
 
        [exs. 12 & 12(2)]
 
        
 
             On July 31, 1987, Dr. Gooding wrote:
 
             
 
             She is a heavy lady, this is her second low back procedure 
 
             in recent history and, as such, it very well may be six 
 
             months to a year before she can be returned to the Work 
 
             Force with any degree of effectiveness.
 
             
 
             Regardless, at this time, she continues totally disabled 
 
             with regards to any form of employment and, even if, and 
 
             when, she does return to the Work Force, it would be most 
 
             reasonable to protect her from future insults to her lower 
 
             spine, especially, and, as such, those activities requiring 
 
             bending, lifting and carrying, should definitely be avoided.
 
             
 
             The patient would also be expected to be provided with an 
 
             environment which does not require her to sit for prolonged 
 
             periods of time, stand in one place for prolonged periods of 
 
             time and which would permit her to move around frequently, 
 
             changing position and location.
 
                       
 
        (exs. 10 & 11)
 
        
 
        
 
             Dr. Gooding provided impairment ratings on January 21, 1988:
 
             
 
             This patient underwent the surgical treatment of a 
 
             work-related cervical disc injury on May 30, 1986 at the 
 
             C6-7 level.
 
             
 
             With regard to that injury and operation, I would assign a 
 
             permanent partial disability with regard to the whole person 
 
             of 10%.
 
             
 
             On 11/24/86, she underwent surgery on her low back for a 
 
             work-related disc injury, at which time a ruptured disc on 
 
             the Right at the L4-5 level was removed.
 
             
 
             She obtained incomplete relief with regard to her Right 
 
             sciatic discomfort, and was therefore returned to the 
 
             operating room on 6/24/87, and underwent an L4-5 
 
             decompressive laminectomy.
 
             
 
             With regard to her low-back situation, I would assign a 
 
             permanent partial disability with regard to the whole person 
 
             of 20%.
 
             
 
             The total disability, assigned because of her spine problems 
 
             (both cervical and lumbar), is 30%.
 
             
 
             These assignments are prompted by the fact that the anatomy 
 
             has not been returned to a normal anatomical state by virtue 
 
             of the surgery for her work-related injuries, and as such, 
 
             she can more easily be re-injured in the future, than would 
 
             be the case had she never been injured in the first place.
 
        
 
        (ex. 7)
 
        
 
             Dr. Gooding recommended a handicapped parking sticker for 
 
             claimant for a one year period of time on February 3, 1988 (ex. 
 
             5).
 
        
 
            Dr. Gooding wrote to employer's vocational rehabilitation 
 

 
        
 
 
 
 
 
        specialist, Vincent J. Antonelli, on February 15, 1988.
 
        
 
             I would recommend that this patient avoid work and other 
 
             activities in the future, which would require her to sit for 
 
             prolonged periods of time without the opportunity to get up 
 
             and move around frequently. I would also suggest she avoid 
 
             standing in one place, and I would assign a permanent 
 
             lifting limit of 10 pounds regularly, and 25 pounds upon 
 
             occasion. It would also be in her best interests if she 
 
             were not required to participate in work and other 
 
             activities which routinely require bending, lifting, and 
 
             carrying.
 
             
 
             I would also encourage her to continue working toward losing 
 
             additional weight, although she has already made great 
 
             strides in that direction already.
 
             
 
             I do believe it would be in her best interests to start her 
 
             into a vocational rehabilitation program at the earliest 
 
             date.
 
             
 
             I have explained these things to the patient, and she was 
 
             officially released from my care on January 29th.
 
             
 
             On April 6, 1988, Dr. Gooding added the following when 
 
             recommending a permanent handicapped parking sticker:
 
        
 
             Because of her age, her weight, and the extensive surgery on 
 
             her spine upon three separate occasions, it is not expected 
 
             that she will be able to comfortably ambulate any 
 
             significant distance.
 
             
 
             It also should be mentioned that she has problems with her 
 
             Right knee, as well, and as [sic] undergone surgery for that 
 
             problem also.
 
             
 
             Therefore, it is respectfully requested that this patient be 
 
             provided a permanent handicap parking sticker.
 
             
 
        (ex. 2)
 
        
 
             Dr. Gooding gave a deposition on January 8, 1988. His 
 
             impressive curriculum vitae shows that he has been a board 
 
             certified neurosurgeon since November of 1981 (ex. 41, deposition 
 
             ex. 1). He is admitted to practice in five states and has 
 
             practiced neurosurgery for 15 years. He said Dr. Margules' 
 
             evaluation did not show a surgical problem, but he reevaluated 
 
             her, found numerous neurological symptoms and his examination of 
 
             Dr. Margules' myelogram indicated bilateral nerve root 
 
             abnormalities in the cervical region at C6, C7. In her lower 
 
             back she had an L4, L5 central disc protrusion (ex. 44, pp. 311). 
 
             He reviewed all three of her surgeries. When she fell on the 
 
             right leg on May 11, 1987, she had increased right leg 
 
             complaints. He sent claimant to see Michael Morrison, M.D., an 
 
             orthopedic surgeon, who performed an arthroscopy. She also lost 
 
             weight and got down to 185 pounds (ex. 44, p. 20).
 
        
 
            Dr. Gooding said he had no reason to think otherwise than 
 
        the injury of February 26, 1986, which she related was the cause 
 
        of all three of her surgeries (ex. 44, pp. 21 & 22). In his 
 
        deposition he awarded a 15 percent permanent impairment for the 
 
        cervical injury with these remarks:
 
        
 
             A. With respect to the cervical injury and subsequent 
 
             surgery, which fortunately she really did quite well with, I 
 
             would place her permanent partial disability at 15 percent. 
 

 
        
 
 
 
 
 
             This is because the cervical anatomy has not been returned 
 
             to normal following the injury and by virtue of the surgery, 
 
             although she symptomatically has improved. Since the 
 
             anatomy is not normal, she could more easily be re-injured 
 
             in the future with respect to the cervical region than would 
 
             be the case if she had never been injured in the first 
 
             place.
 
             
 
        (ex. 44, pp. 22 & 23)
 
        
 
             Dr. Gooding assessed a 20 percent permanent impairment on 
 
             the lumbar spine with this explanation:
 
        
 
             A. With regard to the lumbar spine, I would place her 
 
             permanent partial disability with regard to the whole person 
 
             at 20 percent. That is because, as previously mentioned, 
 
             the anatomy there has certainly been altered and it has 
 
             actually been altered to a greater extent by virtue of her 
 
             having two operations.
 
             
 
                  The lumbar region also is going to be an area which is 
 
                      more routinely stressed. And since the anatomy has been 
 
                      permanently altered in the fashion that it has with respect 
 
                      to her injury and two surgeries, once again she's got to be 
 
                      very careful that she doesn't reinjure her low back, which 
 
                      would be easier in its altered anatomical state.
 
             
 
             Q. Dr. Gooding, are you familiar with the work done by 
 
             LPN's or licensed practical nurses?
 
             
 
             A. I've seen enough patients from the State Hospital School 
 
             that I know that they do a lot of physical work, mostly. In 
 
             fact, I think most of their employment is very physical. 
 
             They are kind of the workers with patients or residents. 
 
             The registered nurses usually are more involved with 
 
             medications and things like that. The actual physical work 
 
             that's done on the wards oftentimes is done by LPN's and 
 
             aids.
 
             
 
             Q. Would you recommend that she return to her job as an LPN 
 
             at the Glenwood State Hospital School?
 
             
 
             A. Absolutely not.
 
             
 
        (ex. 44, p. 23)
 
        
 
             Dr. Gooding said he did not read the myelogram report of the 
 
             myelogram taken by Dr. Margules, but he personally examined the 
 
             study itself and concluded claimant had a very obvious disc 
 
             abnormality in the cervical region and a lesser one in the lumbar 
 
             region. He also noted the degenerative bone changes on the plain 
 
             x-rays and degenerative disc changes on the myelogram. However, 
 
             these conditions were not symptomatic until the stressful 
 
             traumatic event occurred (ex. 44, pp. 24-31). Her weight would 
 
             play a major role in her degenerative disc disease (ex. 44, p. 
 
             31). Dr. Gooding granted that after the cervical surgery that 
 
             his records did not show complaints about her lower back at that 
 
             time (ex. 41, p. 31), but when he saw her in October of 1986, the 
 
             focus was on her back because she had been relieved of the neck 
 
             symptoms (ex. 44, p. 32). It was the doctor's understanding that 
 
             resident treatment workers were not allowed weight restrictions, 
 
             but were required to return to work without any limitations (ex. 
 
             44, p. 35). Dr. Gooding agreed that she may very well be 
 
             physically capable of returning to her old employment, but to do 
 
             so would subject her to potentially further injury (ex. 44, p. 
 
             40). The fall of May 11, 1987 and ensuing surgery increased her 
 

 
        
 
 
 
 
 
             impairment rating 5 percent. It would have been 15 percent 
 
             without the second surgery (ex. 33, p. 41). It is certainly 
 
             possible that the fall of May 11, 1987 was due to weakness from 
 
             the prior surgery (ex. 44, p. 42). It is probable that scar 
 
             tissue build up on the lumbar spine which could have caused the 
 
             fall of May 11, 1987 (ex. 44, pp. 43 & 44).
 
        
 
             Mark M. Mergen, M.A., vocational rehabilitation specialist, 
 
             filed his first report on May 7, 1987. He listed possible 
 
             consideration: (l) would her transferable skills and state 
 
             department of rehabilitation funds get her to an R.N. level; (2) 
 
             was the physical therapy of swimming structured; (3) should 
 
             claimant's limitations be verified through a functional 
 
             capacities examination and testing; (4) is an independent medical 
 
             examination and a transfer of care desirable (ex 24)? On June 9, 
 
             1987, Mergen reported he planned to make contacts with claimant, 
 
             claimant's attorney, employer, and the YMCA swimming facility for 
 
             rehabilitation and vocational planning (ex. 22). On July 8, 
 
             1987, Mergen reported claimant fell in her attorney's office 
 
             after his visit with her, she was hospitalized and Dr. Gooding 
 
             performed surgery the following day (ex. 21). On October 5, 
 
             1987, Mergen reported that the L4-L5 decompressive laminectomy 
 
             was performed on June 24, 1987, that claimant would be 
 
             convalescing for six months and that he was transferring the file 
 
             to Vincent Antonelli of the same firm (ex. 8).
 
        
 
            Antonelli reported on February 2, 1988 that claimant was 
 
        released by Dr. Gooding, but claimant contended that her 
 
        complaints and symptoms were being overlooked and ignored by her 
 
        physicians. She complained of severe muscle spasms, her knee 
 
        gives out without warning, she suffered ongoing back and leg pain 
 
        that keeps her confined to bed some days. She experiences 
 
        depression and despondency. She states she would like to return 
 
        to work, but doesn't see how it is possible in her present 
 
        condition. She had been turned down for social security benefits 
 
        and had appealed. She said she missed working with the children, 
 
        but that her employer would not hire her back with any 
 
        restrictions. Dr. Gooding reported her weight was down from 254 
 
        to 185; her restrictions were no prolonged standing or sitting 
 
        and she needs to change positions at will; and should not lift 
 
        more than 10 pounds regularly and 25 pounds occasionally. Dr. 
 
        Morrison indicated her knee was healed and required no further 
 
        treatment. A computerized vocational analysis resulted in the 
 
        following vocational possibilities:
 
        
 
             Given JUDITH BLAND's present standardized restrictions, work 
 
             history, and results of the VOCOMP Analysis,
 
             following are some vocational possibilities:
 
        
 
             DOT TITLE                           DOT NUMBER
 
             
 
             TEACHER PRESCHOOL                   092.227-018
 
             TEACHER CHILD DEVELOPMENT CTR
 
             ANNOUNCER                           159.147-010
 
             SALES REP PRINTING SUPPLIES         274.357-062
 
             TICKET BROKER                       259.357-034
 
             CUSTOMER SERVICE ASSISTANT
 
             CAR DISTRIBUTOR                     910.367-014
 
             MANAGER ED AND TRAINING             166.167-026
 
             EXHIBIT DESIGNER                    142.061-058
 
             LYRICIST                            131.067-034
 
             LIBRETTIST                          131.067-030
 
             DIRECTOR ED. COMM. HEALTH NUR       075.117-018
 
             GRANT COORDINATOR                   169.117-014
 
             MANAGER CONTRACTS                   163.117-010
 
             
 

 
        
 
 
 
 
 
        [ex. 6 (5)]
 
        
 
             Antonelli added that as the salaries, physical requirements, 
 
             and necessary training for a job vary from employer to employer, 
 
             a labor market survey might be needed to insure the feasibility 
 
             of these jobs.
 
        
 
            Antonelli's last report was filed on February 23, 1988. He 
 
        said a vocational plan would be developed, but it never was. He 
 
        recorded claimant was still frustrated that she had been released 
 
        by her doctor when she had so many symptoms and problems. She 
 
        was resisting attending a pain clinic in Des Moines at the 
 
        request of her employer.
 
        
 
            James T. Rogers, vocational rehabilitation specialist 
 
        retained by claimant's attorney, reviewed her complete medical 
 
        and vocational files and met with claimant, her daughter and her 
 
        ex-husband. Rogers prepared a comprehensive report. He said 
 
        claimant was restricted to a sedentary work category. He 
 
        concluded that she cannot return to any of the work she has done 
 
        in the past. His review of the sedentary jobs for persons with 
 
        her background revealed no jobs which she could do [ex. 1(5)]. 
 
        He named a number of jobs that people with similar experience had 
 
        been trained to do, but concluded, "However, I do not believe 
 
        that we will be able to achieve similar success with Ms. Bland as 
 
        I do not believe that she is able to be gainfully employed." 
 
        [ex. 1(5)].
 
        
 
            Rogers ended his report with this discussion:
 
        
 
             Judith Bland is a 50 year old female who has undergone a 
 
             cervical laminectomy, 2 lumbar laminectomies and surgery to 
 
             the right knee. Prior to her injury she gives a history of 
 
             having been an active, vigorous individual who was engaged 
 
             in a variety of social, community and church activities. 
 
             Nowadays, Judy leads a disabled, semi-invalid, dependent 
 
             lifestyle and reports spending most of her waking hours in 
 
             bed or in a recliner. She reports being in constant, severe 
 
             pain and takes strong pain killers on a regular basis.
 
             
 
             Whereas, Judith possesses transferable skills for lighter, 
 
             even sedentary, work, I do not believe that she is able to 
 
             use these skills in order to return to gainful employment. 
 
             Further, I do not believe that further vocational or 
 
             educational training would benefit her in terms of being 
 
             able to return to work.
 
             
 
             The assistance that Ms. Bland needs is more avocational than 
 
             vocational. This is to say that she needs help in learning 
 
             to live a more productive lifestyle. This means learning to 
 
             manage her pain better, becoming more independent in terms 
 
             of activities of daily living such as cooking, cleaning, 
 
             etc. and becoming more sociable. There are 2 programs which 
 
             could help her. First of all, I would suggest her being 
 
             referred to a pain management center such as the University 
 
             of Nebraska and secondly to the State of Iowa's Vocational 
 
             Rehabilitation and request assistance from their independent 
 
             living program. Again, the most reasonable goal for this 
 
             lady is not one of gainful employment but rather obtaining 
 
             her maximum level of independence and leading as productive 
 
             a life as possible, both personally and socially.
 
             
 
        [ex. 1(6)]
 
             
 
                  Richard Andrews, workers' compensation coordinator for the 
 
                  State of Iowa, gave an affidavit on October 23, 1988 that 
 

 
        
 
 
 
 
 
                  claimant had been paid workers' compensation in the amount of 
 
                  $26,670.68 and medical benefits in the amount of $24,098.06 as of 
 
                  that date {ex. 42(1) and 42(2). An itemized list of payments was 
 
                  also placed in evidence [ex. 42(3)-42(7)]. By another affidavit 
 
                  on August 23, 1988, Andrews explained that the State of Iowa 
 
                  provides a long-term disability income program which is 
 
                  administered by Principal Financial, but which is totally 
 
                  financed by the State of Iowa. There is no cost to the employees. 
 
                  Under this program workers' compensation benefits are deducted 
 
                  from the total entitlement of the employee [ex. 42(2) paragraph 
 
                  f]. He added that the state is to be reimbursed and receive a 
 
                  credit for long-term disability benefits paid concurrently with 
 
                  workers' compensation [ex. 43(2)(g) & (h)].
 
        
 
             A letter from the Principal Financial Group verified that 
 
             they had paid $4,758.23 to claimant as of June 20, 1988; that the 
 
             regular rate of benefits payment was $971.36 per month; and that 
 
             the minimum monthly benefit is $50 per month irrespective of 
 
             workers' compensation benefits. [ex. 43(4)].
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of February 27, 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. 0. Bogqs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
             possibility is insufficient; a probability is necessary. Burt v. 
 
             John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
             (1955). The question of causal connection is essentially within 
 
             the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
             Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
            However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. 
 
        Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
        not be couched in definite, positive or unequivocal language. 
 
        Sondaq v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
        the expert opinion may be accepted or rejected, in whole or in 
 
        part, by the trier of fact. Id., at 907. Further, the weight to 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.2d 867. See also Musselman v. Central Telephone 
 
        Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
             The treating physician, and practically the only physician 
 
             in the case, stated that the cervical surgery and the first 
 
             lumbar surgery were caused by this injury (ex. 7). He said that 
 
             scar tissue from the first lumbar surgery probably caused the 
 
             fall and required the second lumbar surgery to remove the scar 
 
             tissue (ex. 43, pp. 43 & 44). There was no evidence of any other 
 
             cause for claimant's disability other than degeneration. Dr. 
 
             Gooding indicated that the degeneration may have been made 
 
             symptomatic by the stressful, traumatic event of this injury (ex. 
 
             44, p. 29). Employer is liable for sequelae of an injury. Oldham 
 
             v. Scofield & Welch, 222 Iowa 764, 767, 768, 266 N.W. 48082, 269 
 
             N.W. 925 (1936). Defendants are also responsible when treatment 
 
             aggravates or increases disability provided the worker is not 
 
             negligent in selecting the person who administers the treatment. 
 
             Lindeken v. Lowden, 229 Iowa 645, 295 N.W. 112 (1940); Cross v. 
 
             Hermanson Bros., 235 Iowa 739, 741, 16 N.W.2d 616, 617 (1944). 
 
             All doctors here were authorized, if not selected, by employer. 
 
             As for claimant's weight, employer takes claimant in an "as is" 
 
             condition. Hanson v. Dickinson, 188 Iowa 728, 732, 176 N.W. 
 
             823-24 (1920).
 

 
        
 
 
 
 
 
        
 
             Dr. Gooding assessed a 15 percent permanent impairment for 
 
             the cervical injury. He assessed a 20 percent permanent 
 
             impairment for the lumbar injury (ex. 44, pp. 22 & 23). These 
 
             two percentages combine to 32 percent of the body as a whole. 
 
             Guides to the Evaluation of Permanent Impairment, second edition, 
 
             page 240. He said claimant should not bend, lift or carry. She 
 
             is not to sit for a prolonged period of time. She is not to 
 
             stand in one place for long periods of time. She requires 
 
             employment which allows her to move around frequently, changing 
 
             position and location (ex. 10). He added that she cannot 
 
             ambulate comfortably any significant distance (ex. 2). He 
 
             imposed a permanent lifting limit of 10 pounds regularly and 25 
 
             pounds occasionally (ex. 4).
 
        
 
            Defendants objected to the fact that Dr. Gooding based a 
 
        portion of his impairment ratings on the risk of future injury 
 
        due to the changed physical structure after the surgeries. The 
 
        doctor should be allowed this latitude. Any impairment rating is 
 
        simply a professional judgment based on many factors and probably 
 
        differs, at least some, with different physicians. A weakening 
 
        of the body's physical structure and a greater vulnerability to 
 
        additional injury caused by this injury is a proper consideration 
 
        for a doctor in awarding an impairment rating and for the 
 
        industrial commissioner or a deputy industrial commissioner in 
 
        determining industrial disability.
 
        
 
            Claimant testified that she only sleeps one, two or four 
 
        hours per night; can only walk to the bathroom and perhaps a half 
 
        a block at most; can only sit 10 to 15 minutes in a chair and 
 
        daily takes anti-inflammatory and pain medications. She spends 
 
        her days in a recliner or in bed. She frequently stumbles or 
 
        falls if she walks. She uses a cane or a wall to stay on her 
 
        feet. She is unable to care for her house or do housework. She 
 
        contended that she is unable to work at anything. Betts 
 
        corroborated claimant's testimony and added a few details of her 
 
        own.
 
        
 
            Rogers testified that claimant was restricted to sedentary 
 
        work, but that he knew of no sedentary work that she could 
 
        perform. He said, "...I do not believe that she is able to be 
 
        gainfully employed." He said that further education or 
 
        vocational training would not benefit her in terms of being able 
 
        to return to work. He said the most reasonable goal is not one 
 
        of gainful employment, but rather obtaining a maximum level of 
 
        independence and leading as productive a life as possible, both 
 
        personally and socially [ex. 1(6)].
 
        
 
                  Based on the foregoing evidence, Dr. Gooding's testimony, 
 
                  Rogers' testimony, claimant's testimony and Betts' testimony, 
 
                  claimant has made out a case of permanent total disability. 
 
                  [Iowa Code section 85.34(3)]. Defendants did not rebut 
 
                  claimant's evidence. Defendants did not request an independent 
 
                  medical examination, did not order a functional capacities 
 
                  examination or ask for a transfer of care as suggested by Mergen.
 
        
 
            Antonelli did not follow through with the vocational 
 
        rehabilitation plan he talked about on February 28, 1988. His 
 
        last report is on February 23, 1988, even though Dr. Godding said 
 
        on February 25, 1988, "I do believe it would be in her best 
 
        interests to start her into a vocational rehabilitation program 
 
        at the earliest date." (ex. 4). Antonelli's earlier list of 
 
        February 8, 1988 listing "some vocational possibilities" which 
 
        required a "labor market survey" to validate their feasibility 
 
        was never developed. The jobs shown appear to be unrealistic in 
 
        the first place. Claimant had no background, education, 
 

 
        
 
 
 
 
 
        training, experience or interest in any of the job possibilities 
 
        listed. [ex. 6(5)]
 
        
 
            Consequently, it is determined that claimant is permanently 
 
        and totally disabled and is entitled to permanent total 
 
        disability benefits. Claimant has been a licensed practical 
 
        nurse since 1968. That is the only type of work she has done for 
 
        approximately 20 years. To say that she can become a preschool 
 
        teacher, child development school teacher, announcer, or a sales 
 
        representative for printing supplies at age 50 and with her 
 
        debilities, is to suppose the impossible or near impossible. 
 
        Based on the evidence presented in this case, even though her 
 
        impairment is only 32 percent of 100 percent, from the standpoint 
 
        of her ability to go back to work and earn a living for herself, 
 
        her disability is a total disability. Diederich v. Tri-City R. 
 
        Co., 219 Iowa 587, 258 N.W. 899 (1935); Chamberlin v. Ralston 
 
        Purina, file no. 661698, Appeal Decision October 29, 1987; 
 
        McClellan v. Midwest Biscuit Co., file no. 802020, Appeal 
 
        Decision October 20, 1989.
 
        
 
            The benefits are to commence on the date stipulated to by 
 
        the parties, June 21, 1988. The prior payments for the periods 
 
        March 1, 1986 to April 7, 1986 and from May 24, 1986 to January 
 
        21, 1988, which the parties visualized as temporary disability 
 
        benefits in the prehearing report, should be characterized as 
 
        permanent total disability benefits.
 
        
 
            Since claimant has been determined to be permanently and 
 
        totally disabled under the rationale of Diederich, 219 Iowa 587, 
 
        258 N.W. 899 (1935), because of her inability to earn a living 
 
        for herself, then the question of whether she is an odd-lot 
 
        employee is now a moot issue. Pedersen v. Eventide Lutheran Home 
 
        for the Aged, file nos. 826938 & 812761, filed January 31, 1989.
 
        
 
             Iowa Code section 85.38(2) provides:
 
                  
 
                  Credit for benefits paid under group plans. In the event 
 
                      the disabled employee shall receive any benefits, including 
 
                      medical, surgical or hospital benefits, under any group plan 
 
                      covering nonoccupational disabilities contributed to wholly 
 
                      or partially by the employer, which benefits should not have 
 
                      been paid or payable if any rights of recovery existed under 
 
                      this chapter, chapter 85A or chapter 85B, then such amounts 
 
                      so paid to said employee from any such group plan shall be 
 
                      credited to or against any compensation payments, including 
 
                      medical, surgical or hospital, made or to be made under this 
 
                      chapter, chapter 85A or chapter 85B. Such amounts so 
 
                      credited shall be deducted from the payments made under 
 
                      these chapters. Any nonoccupational plan shall be 
 
                      reimbursed in the amount so deducted. This section shall 
 
                      not apply to payments made under any group plan which would 
 
                      have been payable even though there was an injury under this 
 
                      chapter or an occupational disease under chapter 85A or an 
 
                      occupational hearing loss under chapter 85B. Any employer 
 
                      receiving such credit shall keep such employee safe and 
 
                      harmless from any and all claims or liabilities that may be 
 
                      made against them by reason of having received such payments 
 
                      only to the extent of such credit.
 
                  
 
             Iowa Code section 79.20 provides:
 
                  
 
                            EMPLOYEES DISABILITY PROGRAM
 
                  
 
                  Employees disability program. There is created a state 
 
                      employees disability insurance program which shall be 
 
                      administered by the executive council and which shall 
 

 
        
 
 
 
 
 
                      provide disability benefits in an amount and for the 
 
                      employees as provided in this section. The monthly 
 
                      disability benefits shall provide twenty percent of monthly 
 
                      earnings if employed less than one year, forty percent of 
 
                      monthly earnings if employed one year or more but less than 
 
                      two years, and sixty percent of monthly earnings thereafter, 
 
                      reduced by primary and family social security determined at 
 
                      the time social security disability payments commence, 
 
                      workers' compensation if applicable, and any other state 
 
                      sponsored sickness or disability benefits payable. No 
 
                      subsequent social security increases shall be used to 
 
                      further reduce the insurance benefits payable. State 
 
                      employees shall receive credit for the time they were 
 
                      continuously employed prior to and on July 1, 1974.
 
        
 
             Thus, it can be seen, from a reading of section 79.20, that 
 
             the State of Iowa Employees Disability Program was not intended 
 
             to provide claimant with a concurrent duplication of benefits, 
 
             that is workers' compensation benefits and also long-term 
 
             disability benefits for the same period of time. Section 79.20 
 
             says the benefits are to be reduced by the workers' compensation 
 
             benefits. Likewise, it is clear that the state employee 
 
             long-term disability program was not intended to be a plan "which 
 
             would have been fully payable even though there was an injury" 
 
             under the workers' compensation laws as provided in Iowa Code 
 
             section 85.38(2).
 
                  
 
             The statements made in the affidavit of Andrews to the 
 
             effect that long-term disability benefits and workers' 
 
             compensation benefits are to offset against each other is 
 
             correct.
 
             
 
             Workers' compensation is based upon the principle of payment 
 
             of weekly benefits being paid in a fixed weekly amount. That 
 
             principle prohibits using amounts overpaid in the past to satisfy 
 
             currently due weekly payments. Division of Industrial Services 
 
             Rule 343-8.4; Comingore v. Shenandoah Art. Ice, Etc., Co., 208 
 
             Iowa 430, 226 N.W. 124 (1929); Van der Wilt v. Sherman Produce 
 
             Co., III Iowa Industrial Commissioner Report 265, 267, Appeal 
 
             Decision 198 2).
 
             
 
             For the period of time during which workers' compensation 
 
             and group long-term disability benefits were both being paid, 
 
             there is no underpayment of workers' compensation benefits and no 
 
             need for a credit. Principal Financial may have a claim against 
 
             claimant for an overpayment, but this agency does not have 
 
             jurisdiction over that issue. The employer is entitled to a 
 
             credit toward amounts of workers' compensation which came due, 
 
             but were not paid during times when group long-term disability 
 
             benefits were being paid. There is no credit for the $50 minimum 
 
             payment which is paid irrespective of workers' compensation or 
 
             other benefit payments.
 
             
 
             From the evidence submitted, the undersigned is not able to 
 
             compute the precise amount of credit entitlement.
 
             
 
                                 FINDINGS OF FACT
 
        
 
             Wherefore, based upon the evidence presented, the following 
 
             findings of fact are made:
 
        
 
            That claimant was employed by employer on February 27, 1986 
 
        and sustained an injury arising out of and in the course of 
 
        employment on that date while moving a convulsing resident from a 
 
        wheelchair to a bed.
 
        
 

 
        
 
 
 
 
 
             That the injury was the cause of 15 percent permanent 
 
             impairment to the cervical spine and 20 percent impairment of the 
 
             lumbar spine which figures combine in the AMA Guides to 32 
 
             percent permanent impairment to the body as a whole.
 
        
 
              That claimant is to avoid bending, lifting and carrying; she 
 
             is not to sit or stand in one place for prolonged periods of 
 
             time; she requires freedom to move around frequently, changing 
 
             position and location; she cannot comfortably walk any 
 
             significant distance; and she is not to lift more than 10 pounds 
 
             regularly and 25 pounds occasionally.
 
        
 
             That claimant is foreclosed from her former employment with 
 
             employer, according to Dr. Gooding.
 
        
 
            That claimant is foreclosed to all licensed practical 
 
        nursing jobs, according to Rogers.
 
        
 
            That Rogers, the vocational rehabilitation specialist, 
 
        determined that claimant was relegated to sedentary work and that 
 
        there was no sedentary work that claimant could do.
 
        
 
            That Rogers stated that further vocational or education 
 
        training would not benefit claimant in terms of being able to 
 
        return to work.
 
        
 
            That employer's vocational rehabilitation specialist 
 
        discontinued working with claimant without any explanation for 
 
        not continuing with her case.
 
        
 
            That claimant spends most of her time at home in bed or in a 
 
        recliner and requires the assistance of a cane or a wall to keep 
 
        from falling when walking.
 
        
 
            That claimant is permanently and totally disabled.
 
        
 
            That claimant is not entitled to both workers' compensation 
 
        benefits and long-term disability benefits since the long-term 
 
        disability benefits are to be reduced by the workers' 
 
        compensation benefits.
 
        
 
                                 CONCLUSIONS OF LAW
 
        
 
             Wherefore, based on the evidence presented and the foregoing 
 
             principles of law, the following conclusions of law are made:
 
        
 
            That the injury of February 27, 1986 was the cause of 
 
        permanent disability.
 
        
 
            That claimant is permanently and totally disabled.
 
        
 
             That claimant is entitled to permanent and total disability 
 
             benefits.
 
        
 
            The State of Iowa group long-term disability group plan 
 
        qualifies for credit under Iowa Code section 85.38(2).
 
        
 
                                      ORDER
 
        
 
                  THEREFORE, IT IS ORDERED:
 
        
 
            That defendants pay to claimant Two Hundred Thirty-six and 
 
        37/100 Dollars ($236.37) per week as permanent total disability 
 
        benefits commencing on June 21, 1988 as stipulated to by the 
 
        parties and continuing thereafter for so long as claimant remains 
 
        totally disabled under Iowa Code section 85.34 (3).
 

 
        
 
 
 
 
 
        
 
            That the previous payment of workers' compensation benefits 
 
        to claimant at the rate of Two Hundred Thirty-six and 37/100 
 
        Dollars ($236.37) per week for the periods: (1) March 1, 1986 to 
 
        April 7, 1986 and (2) May 24, 1986 to January 21, 1987 are also 
 
        to be characterized as permanent total disability benefits to 
 
        which claimant is entitled for this injury.
 
        
 
            The two periods in the paragraph above constitute 
 
        ninety-eight (98) weeks and six (6) days of workers' compensation 
 
        benefits. The parties stipulated that defendants had paid 
 
        claimant one hundred seventeen (117) weeks of workers ' 
 
        compensation benefits prior to hearing. Therefore, defendants 
 
        are entitled to a credit for eighteen (18) weeks and one (1) day 
 
        of workers' compensation benefits paid prior to hearing.
 
        
 
            That defendants are entitled to a credit for the amount of 
 
        long-term disability benefits actually paid to claimant during 
 
        times when workers' compensation was not paid.
 
        
 
            That all accrued benefits are to be paid in a lump sum.
 
        
 
             That interest will accrue pursuant to Iowa Code section 
 
             85.30.
 
        
 
            That the costs of this action are charged to defendants 
 
        pursuant to Division of Industrial Services Rule 343-4.33. 
 
        Claimant is entitled to One Hundred Fifty Dollars ($150) of the 
 
        itemized bill submitted for R. Schuyler Gooding, M.D., in the 
 
        amount of Three Hundred Seventy-five Dollars ($375) for a 
 
        deposition. Claimant did not submit an itemized bill from Blair 
 
        and Associates for One Hundred Seventy-six and 90/100 Dollars 
 
        ($176.90) and therefore, no award can be made in this decision, 
 
        however, defendants should pay the reasonable cost of the 
 
        deposition when claimant presents an itemized bill to defendants 
 
        for that deposition which is reasonable. The vocational report 
 
        of James Rogers, in the amount of Four Hundred Dollars ($400) is 
 
        a medical report pursuant to Division of Industrial Services Rule 
 
        343-4.18, however, no itemized bill was attached and therefore, 
 
        this amount cannot be taxed as costs. Defendants should pay the 
 
        reasonable cost of a medical report, upon presentation of Rogers' 
 
        itemized bill, which amount should not exceed One Hundred Fifty 
 
        Dollars ($150), which is the maximum that could be allowed in 
 
        this case for a deposition.
 
        
 
             That defendants file claim activity reports as requested by 
 
             this agency pursuant to Division of Industrial Services Rule 
 
             343-3.1.
 
        
 
            Signed and filed this 28th day of December, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                     WALTER R. McMANUS, JR.
 
                                     DEPUTY INDUSTRIAL COMMISSIONER
 
        
 
        Copies To:
 
        
 
        Mr. Sheldon Gallner
 
        Attorney at Law
 
        803 3rd Ave
 
        PO Box 1588
 
        Council Bluffs, IA 51502
 
        
 

 
        
 
 
 
 
 
        Mr. Greg Knoploh
 
        Assistant Attorney General
 
        Hoover State Office Bldg
 
        Des Moines, IA 50319
 
        
 
        
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDITH BLAND,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  819160
 
            GLENWOOD STATE HOSP SCHOOL,   :
 
                                          :   C O M M U T A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding brought by Judith Bland upon the 
 
            filing of a petition for commutation of all remaining 
 
            benefits and order for lump sum payments as the result of a 
 
            final agency decision filed December 28, 1989, wherein it 
 
            was found that claimant is permanently and totally disabled.  
 
            Defendants resisted the petition.
 
            
 
                 The cased was heard and fully submitted at Council 
 
            Bluffs, Iowa, on January 8, 1991.  The record in the 
 
            proceeding consists of joint exhibits 1 through 6 and 
 
            testimony from claimant.
 
            
 
                                      issue
 
            
 
                 The sole issue presented for determination is whether 
 
            it is in claimant's best interest to receive in one commuted 
 
            lump sum payment the permanent total disability benefits 
 
            awarded to her in a decision of Deputy Industrial 
 
            Commissioner Walter R. McManus, Jr., dated December 28, 
 
            1989.
 
            
 
                                 findings of fact
 
            
 
                 Having considered all the evidence received the 
 
            following findings of fact are made:
 
            
 
                 Claimant, now age 52, was declared permanently totally 
 
            disabled in an arbitration decision dated December 28, 1989.
 
            
 
                 Claimant is a high school graduate with post-high 
 
            school training which qualifies her as a licensed practical 
 
            nurse two.  She has a work history of 25 years as a nurse.
 
            
 
                 Claimant raised five daughters primarily without the 
 
            assistance of a spouse.  All of her children have now left 
 
            home.  Claimant testified that she earned $24,000 to $30,000 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            per year as a nurse and handled all family expenses on her 
 
            own.  Up and until the time of her injury she was debt free.
 
            
 
                 Claimant also explained that she had experience in 
 
            handling money due to her involvement in resolving her 
 
            mother's and brother's estates. 
 
            
 
                 One of claimant's primary reasons for requesting 
 
            commutation is the need to repay several loans totalling 
 
            $19,193.25, exhibit 6.
 
            
 
                 Claimant also explained that she is liable for a 25 
 
            percent attorney fee as a result of her attorney's efforts 
 
            to obtain the award.  This cost amounts to $28,000.  It 
 
            should be noted that a 33 percent fee had been approved, but 
 
            her attorney subsequently reduced his charges to a 25 
 
            percent contingent fee.
 
            
 
                 Claimant also explained that she needed $5,000 to use 
 
            for a paid-up burial plan.  Claimant expressed her concern 
 
            over burdening her children with the cost of a funeral.  
 
            Claimant had recently been forced to handle the funeral 
 
            plans for several relatives and found it extremely painful.
 
            
 
                 Claimant now resides in a mobile home with her husband, 
 
            Victor Venables.  She expressed her desire to purchase a 
 
            house which would provide her with a more comfortable 
 
            lifestyle.  She plans on spending $60,000 on a house with 
 
            $15,000 to be used as a down payment.  The house would be 
 
            placed in her name with the monthly mortgage payments made 
 
            by Victor Venables.
 
            
 
                 Claimant has planed to invest the remaining $35,000 to 
 
            $40,000 in an interest bearing account.  Claimant has sought 
 
            investment advice from her local banker concerning the most 
 
            appropriate method of investing the remaining funds.
 
            
 
                 She further testified that receiving the workers' 
 
            compensation award, one week at a time, would never allow 
 
            the accumulation of anything that would improve her 
 
            lifestyle.  It was apparent that each check was spent as it 
 
            was received.
 
            
 
                 Claimant stated that she was aware of the consequences 
 
            of a full commutation with respect to the loss of medical 
 
            benefits and future rights.  Claimant further stated that 
 
            she wanted her commutation to be approved and that it was in 
 
            her best interest.
 
            
 
                 Defendants, on cross-examination, brought forth 
 
            testimony that claimant had been married on four occasions.  
 
            The last marriage was to Victor Venables.  Claimant and Mr. 
 
            Venables have a divorce petition on file.  However, they 
 
            have reconciled their problems and are back together.  
 
            Claimant stated that the marriage is of good quality and the 
 
            divorce petition will be dismissed. 
 
            
 
                 Claimant stated that her husband is a truck driver with 
 
            an income of about $400 per week.  Mr. Venables also 
 
            receives income from a farm that was placed into trust by 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            his parents.
 
            
 
                 It is found that claimant has not shown a legitimate 
 
            need for receiving all monies in a lump sum.  Claimant would 
 
            be able to pay off all existing debt, purchase a paid-up 
 
            funeral plan and improve her housing.  None of which could 
 
            be accomplished at any time in the near future if the 
 
            benefits are paid weekly.  However, if claimant were to 
 
            experience a divorce, as she has so many times in the past, 
 
            she would not be able to make her house payments, taxes and 
 
            utilities.  Claimant would eventually be left destitute.  
 
            
 
                 Having considered all of the evidence presented it is 
 
            found that claimant has failed to prove by a preponderance 
 
            of the evidence that approval of the full commutation is in 
 
            the claimant's best interests.
 
            
 
                                conclusions of law
 
            
 
                 Section 85.45, Code of Iowa, provides, in relevant 
 
            part:
 
            
 
                 Future payments of compensation may be commuted to 
 
                 a present worth lump sum payment on the following 
 
                 conditions:
 
            
 
                 1.  When the period during which compensation is 
 
                 payable can be definitely determined.
 
            
 
                 2.  When it shall be shown to the satisfaction of 
 
                 the industrial commissioner that such commutation 
 
                 will be for the best interest of the person or 
 
                 persons entitled to the compensation, or that 
 
                 periodical payments as compared with a lump sum 
 
                 payment will entail undue expense, hardship, or 
 
                 inconvenience upon the employer liable therefor.
 
            
 
                 ...
 
            
 
                 In Diamond v. Parsons Co., 256 Iowa 915, 129 N.W.2d 608 
 
            (1964) the Iowa Supreme Court outlined the basis for 
 
            granting commutations and stated at pages 128-129:
 
            
 
                 [I]n determining the "best interest of the person 
 
                 or persons entitled to the compensation" as 
 
                 required by the statute, claimant's condition and 
 
                 life expectancy may properly be considered along 
 
                 with other matters.  Here, under weekly payments, 
 
                 if claimant lives out his expectancy, he will 
 
                 outlive his compensation period and be left with 
 
                 nothing.  If he dies prematurely his total weekly 
 
                 payments may be less than the present commuted 
 
                 value.
 
            
 
                    [12] Based upon claimant's estimates and 
 
                 desires, the benefits and convenience from 
 
                 improved living quarters, the availability of 
 
                 family help, the testimony of real-estate agents, 
 
                 and all surrounding circumstances, the trial court 
 
                 approved commutation.  Whether the court was right 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 in attempting to look into the future only the 
 
                 passage of time will tell.  Claimant's plans may 
 
                 not develop as profitably as he hopes but they are 
 
                 not unreasonable.  He may invest or spend unwisely 
 
                 but that possibility is present in very petition 
 
                 for commutation.
 
            
 
                 The court should not act as an unyielding 
 
                 conservator of claimant's property and disregard 
 
                 his desires and reasonable plans just because 
 
                 success in the future is not assured.
 
            
 
                 The principles of Diamond were reconsidered by the 
 
            court in Dameron v. Neuman Brothers, Inc., 339 N.W.2d 160 
 
            (Iowa 1983).  After review of the Diamond decision the court 
 
            again adopted its principles and commented at page 164:
 
            
 
                 In summary, Diamond held that the decision whether 
 
                 to allow commutation must turn on the statutory 
 
                 guideline, best interest of the claimant, and the 
 
                 focus should be on the worker's personal, family, 
 
                 and financial circumstances, and the 
 
                 reasonableness of the worker's plans for using the 
 
                 lump sum proceeds.  Consequently, factors which 
 
                 can be distilled from the Diamond analysis include 
 
                 the following:
 
            
 
                 1.  The worker's age, education, mental and 
 
                 physical condition, and actual life expectancy (as 
 
                 contrasted with information provided by actuarial 
 
                 tables).
 
            
 
                 2.  The worker's family circumstances, living 
 
                 arrangements, and responsibilities to dependents.
 
            
 
                 3.  The worker's financial condition, including 
 
                 all sources of income, debts and living expenses.
 
            
 
                 4.  The reasonableness of the worker's plan for 
 
                 investing the lump sum proceeds and the worker's 
 
                 ability to manage invested funds or arrange for 
 
                 management by others.
 
            
 
                 Ultimately, the Diamond analysis involves a 
 
                 benefit-detriment balancing of factors, with the 
 
                 worker's preference and the benefits to the worker 
 
                 of receiving a lump sum payment weighed against 
 
                 the potential detriments that would result if the 
 
                 worker invested unwisely, spend foolishly, or 
 
                 otherwise wasted the fund so it no longer provided 
 
                 the wage-substitute intended by our worker's 
 
                 compensation law.  Under the last two paragraphs 
 
                 quoted above from the Diamond opinion, however, a 
 
                 request for commutation is approved on the 
 
                 best-interest balancing test unless the potential 
 
                 detriments to the worker outweigh the worker's 
 
                 expressed preference and the demonstrated benefits 
 
                 of commutation.
 
            
 
                 The court most recently addressed the question of 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            commutation in Sidles Distributing Co. v. Heath, 366 N.W.2d 
 
            1 (1985).  In that case the court found that permanent total 
 
            disability compensation payments are to be made for the life 
 
            of the injured worker and that life expectancy is to be 
 
            determined by the standard mortality tables of the 
 
            industrial commissioner.  The court added, however, that the 
 
            ten percent simple interest discount basis for commutations 
 
            which had been applied by the commissioner was in error and 
 
            that the appropriate basis for discount should be ten 
 
            percent compounded interest.
 
            
 
                 The claimant has shown that receiving her award in a 
 
            lump sum would improve her lifestyle for a short period of 
 
            time by providing improved living quarters, a paid-up 
 
            funeral plan and the extinguishment of outstanding personal 
 
            debt.  The worker's personal, family, financial 
 
            circumstances, and the plans for using the proceeds leads to 
 
            the finding that approval of the commutation is not in 
 
            claimant's best interest.  If claimant were to experience a 
 
            divorce she would be unable to pay all existing bills on her 
 
            own.  Furthermore, claimant lives from check to check at 
 
            this time and has not demonstrated an ability to handle 
 
            money.
 
            
 
                 Claimant has failed to prove by a preponderance of the 
 
            evidence that it is in her best interest to receive a full 
 
            commutation of all remaining benefits.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED:
 
            
 
                 That the application for commutation is denied.
 
            
 
                 That defendant is assessed costs of these proceedings.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          MARLON D. MORMANN
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. Sheldon Gallner
 
            Attorney at Law
 
            803 3rd Avenue
 
            PO Box 1588
 
            Council Bluffs, Iowa  51502
 
            
 
            Mr. Greg Knoploh
 
            Assistant Attorney General
 
            Hoover State Office Bldg
 
            Des Moines, Iowa  50319
 
            
 
            
 
                 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
                      53303
 
                      Filed February 8, 1991
 
                      Marlon D. Mormann
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            JUDITH BLAND,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  819160
 
            GLENWOOD STATE HOSP SCHOOL,   :
 
                                          :   C O M M U T A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            53303
 
            Claimant failed to establish that a full commutation of her 
 
            permanent total disability award was in her best interest.
 
            Claimant had been married four times and recently filed for 
 
            divorce from her present husband.  Without her husband's 
 
            income claimant would not be able to pay her bills, based 
 
            upon her plans for the commutation proceeds.
 
            
 
            
 
 
        
 
 
 
 
 
        
 
        
 
        
 
        
 
        
 
                                      51401; 51402.40; 51804; 1701; 1704; 
 
                                      4100
 
                                      Filed December 28, 1989
 
                                      WALTER R. McMANUS, JR.
 
        
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                      
 
                                      
 
        JUDITH BLAND,
 
        
 
             Claimant,
 
             
 
        vs.
 
                                                  File No. 819160
 
        GLENWOOD STATE HOSPITAL
 
        SCHOOL,                                 A R B I T R A T I O N
 
        
 
            Employer,                             D E C I S I O N
 
        
 
        and
 
        
 
        STATE OF IOWA,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        51401; 51402.40; 51804
 
        
 
             Claimant, age 50, a licensed practical nurse, injured her 
 
             back moving a convulsing patient. She received one cervical and 
 
             two lumbar laminectomies and was awarded impairments of 15 and 20 
 
             percent respectively. She was restricted from bending; lifting 
 
             and carrying; prolonged standing, sitting or walking; and lifting 
 
             10 pounds regularly and 25 pounds occasionally. Defendants' 
 
             vocational rehabilitation specialist made a plan and apparently 
 
             defendants abandoned it. Claimant's vocational rehabilitation 
 
             specialist said claimant was not employable. Claimant contended 
 
             she spent her day at home in bed or in a recliner and required a 
 
             cane or a wall to keep from falling when she walked. Claimant 
 
             was found to be permanently and totally disabled.
 
        
 
        1701; 1704
 
        
 
             It was determined that the State of Iowa Employees' Longterm 
 
             Disability plan qualifies for a credit under Iowa Code section 
 
             85.38(2). During those times when claimant received both 
 
             workers' compensation benefits and long-term disability benefits, 
 
             credit is not available to deprive claimant of weekly benefits in 
 
             the future, because workers' compensation is intended to insure 
 
             that claimant receives a weekly benefit check every week. The 
 
             long-term disability carrier may have an action against claimant 
 
             for any excess payments they made to which claimant was not 
 
             entitled. During those periods when the long-term disability was 
 
             paid and workers' compensation was not paid, defendants may apply 
 
             the credit. Sufficient data was not submitted for the deputy to 
 
             accurately calculate the actual amounts involved.
 
        
 

 
        
 
 
 
 
 
        4100
 
        
 
             Since claimant was determined to be permanently and totally 
 
             disabled under the question of Diederich, the question of whether 
 
             claimant was odd-lot under the concept of Guyton became moot.
 
             
 
        
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            BENJAMIN M. MAIDEN,       :
 
		                      :
 
                 Claimant,	      :      File No. 819477
 
                      		      :
 
		            vs.       :        A P P E A L
 
                		      :
 
            FDL FOODS, INC.,          :      D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            The record, including the transcript of the hearing before 
 
            the deputy and all exhibits admitted into the record, has 
 
            been reviewed de novo on appeal.  The decision of the deputy 
 
            filed May 31, 1990 is affirmed and is adopted as the final 
 
            agency action in this case. 
 
            Defendant shall pay the costs of the appeal, including the 
 
            preparation of the hearing transcript.
 
            Signed and filed this ____ day of November, 1991.
 
            
 
            
 
            
 
            
 
                      ________________________________
 
                               BYRON K. ORTON
 
                           INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Patrick Tallon
 
            Attorney at Law
 
            633 S. LaGrange Rd.
 
            LaGrange, IL  60525-6725
 
            
 
            Mr. James M. Heckmann
 
            Attorney at Law
 
            One CyCare Plaza, Ste 216
 
            Dubuque, Iowa 52001
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            9998
 
            Filed November 19, 1991
 
            BYRON K. ORTON
 
            WRM
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
		                      :
 
            BENJAMIN M. MAIDEN,	      :
 
		                      :
 
                 Claimant,	      :       File No. 819477
 
                      		      :
 
		            vs.       :         A P P E A L
 
                		      :
 
            FDL FOODS, INC.,   	      :       D E C I S I O N
 
                      		      :
 
                 Employer, 	      :
 
                 Self-Insured,        :
 
                 Defendant.           :
 
            ___________________________________________________________
 
            
 
            
 
            
 
            9998
 
            
 
                 Summary affirmance of deputy's decision filed May 31, 
 
            1990.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BENJAMIN M. MAIDEN,
 
         
 
              Claimant,                               File No.  8194771
 
         
 
         VS.
 
                                                    A R B I T R A T I 0 N
 
         
 
         FDL FOODS, INC.,
 
                                                       D E C I S I 0 N
 
              Employer
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Benjamin M. 
 
         Maiden, claimant, against FDL Foods, employer and self-insured 
 
         defendant, for benefits as the result of an injury that occurred 
 
         on March 17, 1986.  A hearing was held on July 13, 1989, at 
 
         Dubuque, Iowa, and the case was fully submitted at the close of 
 
         the hearing.  Claimant was represented by Patrick A. Tallon.  
 
         Defendant was represented by James M. Heckmann.  The record 
 
         consists of the testimony of Benjamin M. Maiden, claimant; Kevin 
 
         B. Fagan, claimant's nephew; joint exhibits 1 through 21 and 23 
 
         through 27 and claimant's exhibit 22 (transcript page 40).  The 
 
         deputy ordered a transcript of the hearing.  Defendant's attorney 
 
         submitted an excellent posthearing brief.  Claimant's attorney 
 
         did not submit a brief.
 
         
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on March 17, 1986, that 
 
         arose out of and in the course of employment with employer.
 
         
 
              That the injury was the cause of temporary disability from 
 
         March 17, 1986 through August 25, 1986; that claimant is entitled 
 
         to and was paid temporary disability benefits for this period of 
 
         time; and that temporary disability is no longer a disputed 
 
         matter in this case at this time.
 
         
 
         
 
         
 
         MAIDEN VS. FDL FOODS
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              That the commencement date of permanent partial disability 
 
         benefits, in the event such benefits are awarded, is August 26, 
 
         1986.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $231.83 per week.
 
         
 
              That the provider of medical services would testify that the 
 
         fees charged were reasonable and defendant is not offering 
 
         contrary evidence.
 
         
 
              That defendant makes no claim for employee non-occupational 
 
         group health plan benefits or workers' compensation permanent 
 
         partial disability benefits paid to claimant prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
              That the issues of notice under Iowa Code section 85.23 and 
 
         the statute of limitations under Iowa Code section 85.26 were 
 
         withdrawn as hearing issues by the parties at the time of the 
 
         hearing.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the injury was the cause of permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits to include whether claimant is entitled to industrial 
 
         disability benefits for an injury to the body as a whole or 
 
         whether claimant is entitled to scheduled member benefits.
 
         
 
              Whether claimant is entitled to a $75 medical expense with 
 
         Julian G. Nemmers, M.D., incurred on September 14, 1987.
 
         
 
              Whether claimant is entitled to certain costs.
 
         
 
                                 FINDINGS OF FACT
 
                                        
 
                      CAUSAL CONNECTION-PERMANENT DISABILITY
 
         
 
              Claimant worked for Dubuque Pack as a pork boner for 
 
         approximately 30 years.  He then continued to work for FDL Foods 
 
         as a pork boner for approximately three years prior to this 
 
         injury.  FDL Foods is the successor company to Dubuque Pack 
 
         occupying the same premises and plant and operating a pork 
 
         operation.  Claimant testified that as a pork boner he removed 
 
         the hitch bone, center bone and shank bone.  The hitch bone 
 
         required four cuts, the shank bone required three cuts and the 
 
         center bone required four
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         MAIDEN VS. FDL FOODS 
 
         Page 3
 
         
 
         
 
         cuts.  Claimant maneuvered the hams with his left hand and 
 
         performed boning operations with a six-inch boning knife with his 
 
         dominant right hand.  The hams weighed between 16 and 32 pounds.  
 
         Claimant testified that he processed 51 hams per hour.  Claimant 
 
         worked approximately eight hours a day, five days, five and 
 
         one-half days or six days a week (tr. pp. 46-51).  A 
 
         pre-employment physical examination with employer on October 12, 
 
         1982, did not disclose any problems with claimant's hands or 
 
         wrists (exhibit 1).
 
         
 
              On January 30, 1986, claimant complained of left wrist pain.  
 
         He saw the plant nurse, who referred him to Luke C. Faber, M.D., 
 
         the plant physician, who referred him to Lynn D. Kramer, M.D., a 
 
         neurologist, for an EMG (tr. p. 51; ex. 3, p. 2; ex. 21, p. 2).  
 
         On February 28, 1986, Dr. Kramer reported that the NCV/EMG study 
 
         disclosed that the patient had bilateral slowing over the carpal 
 
         tunnels a little bit worse on the left (ex. 4).  A first report 
 
         of injury completed on March 12, 1986, which was not objected to 
 
         by either party, states in item 18, "How did the accident or 
 
         injury occur?  States that while boning hams, both wrists became 
 
         sore with numbness in right and left long and ring fingers."  
 
         Item 19 reads as follows, "Describe the injury or illness in 
 
         detail and indicate the part of the body affected.  Slowing over 
 
         carpal tunnels of right and left wrists.  EMG Testing 3-7-86."  
 
         Item 21 reads as follows, "Name the object or substance which 
 
         directly injured the employee.  Repetitive motion."  Item 22 
 
         reads as follows, "Time injury occurred.  Gradual."  Item 30 
 
         states that disability began on March 17, 1986. (ex. 5).
 
         
 
              Dr. Faber completed a surgeon's report on March 12, 1986 
 
         showing that on January 30, 1986, both wrists became sore with 
 
         numbness in right and left long and ring fingers.  Dr. Faber 
 
         stated, "Nature and Extent of Injury.  Both wrists, bilateral 
 
         carpal tunnel syndrome."  (ex. 13).  Dr. Faber said claimant was 
 
         treated with left and right cock-up splints.  He added that EMG 
 
         testing on February 28, 1986 revealed bilateral slowing over the 
 
         carpal tunnels a little bit worse on the left. (ex. 13).  Dr. 
 
         Faber completed another surgeon's report on March 17, 1986 and 
 
         again recorded that the nature and extent of injury was, "Both 
 
         wrists bilateral carpal tunnel syndrome."  (ex. 16).  The left 
 
         wrist was casted on March 17, 1986.  The cast was removed and a 
 
         subsequent EMG on April 28, 1986 disclosed a bilateral condition. 
 
         (exs. 6, 13 & 16).  Still another EMG on May 19, 1986 disclosed, 
 
         "mild bilateral carpal tunnel." (ex. 6).  The left arm was cast 
 
         again for three weeks and another EMG on June 25, 1986 disclosed, 
 
         "mild entrapment of the median nerve at the wrist bilaterally." 
 
         Claimant complained of being awakened at night with pain from the 
 
         wrist to the long, ring and index fingers on both hands (ex. 7).
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Dr. Faber referred claimant to Julian G. Nemmers, M.D., an 
 
         orthopedic surgeon, for a "second opinion for bilateral carpal
 
         
 
         
 
         
 
         MAIDEN VS. FDL FOODS 
 
         Page 4
 
         
 
         
 
         tunnel." (exs. 8 and 17, p. 8).  Dr. Nemmers recorded pain on the 
 
         volar aspect of the wrists radiating up to his elbows and 
 
         sometimes down into his hands.  The middle two fingers of each 
 
         hand were the most numb and wake him up at night with numbness.  
 
         Dr. Nemmers diagnosed, "bilateral carpal tunnel syndrome," and 
 
         performed surgery on July 17, 1986 at Finley Hospital (exs. 8, p. 
 
         1; 17, p. 8).  The Finley Hospital records show a principal 
 
         diagnosis of, "carpal tunnel syndrome, bilateral," and that 
 
         claimant received a, "release of carpal tunnels bilateral."  (ex. 
 
         9, pp. 1-26).  Claimant testified that he did not want to have 
 
         both hands operated on and disabled at the same time, but that he 
 
         was forced to do so by employer (tr. p. 54).
 
         
 
              In view of the foregoing summary of evidence it is 
 
         determined that claimant sustained a cumulative injury to both 
 
         hands simultaneously on March 17, 1986, which was the day he was 
 
         forced to leave work due to the injury.  McKeever Custom Cabinets 
 
         v. Smith, 379 N.W.2d 368 (Iowa 1985).  Defendant's argument that 
 
         claimant sustained two separate injuries because the left arm was 
 
         casted first is without merit in view of the foregoing summary of 
 
         evidence.  Furthermore, even though claimant's first complaints 
 
         were in his left arm, nevertheless, when he was diagnosed by Dr. 
 
         Faber and Dr. Nemmers and tested by Dr. Kramer, the neurologist, 
 
         it was determined by these professional medical persons that 
 
         claimant had sustained bilateral carpal tunnel.
 
         
 
              On September 4, 1987, Dr. Nemmers examined and evaluated 
 
         claimant and determined, "It is my opinion that he has no 
 
         permanent impairment in either hand as a result of carpal tunnel 
 
         syndrome with a surgical treatment."  Dr. Nemmers further opined 
 
         that claimant's continued complaints of night numbness in the 
 
         middle and ring finger on both hands was not due to carpal tunnel 
 
         syndrome after the division of the transverse carpal ligament.  
 
         The doctor stated it must indicate spinal cord disease or other 
 
         rare neuropathy of the upper extremities, but it is not related 
 
         to carpal tunnel.  The doctor did find quite a bit of swelling in 
 
         the soft tissues because his hands were puffy. (ex. 17, pp. 8 & 
 
         9).
 
         
 
              Claimant was examined by Barry L. Fischer, M.D., an 
 
         evaluating physician for claimant, on April 28, 1988.  Dr. 
 
         Fischer correctly summarized claimant's history of treatment and 
 
         complaints. (ex. 22, pp. 13-16; deposition ex. 4). Dr. Fischer 
 
         determined that the injury was the cause of permanent impairment. 
 
         (ex. 22, pp. 21-26).  Dr. Fischer concluded as follows:
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              DIAGNOSIS:
 
              
 
                 This patient sustained a repetitive trauma to both hands 
 
              that resulted in bilateral carpal tunnel syndrome, requiring 
 
              operative intervention.  There is
 
         
 
         
 
         
 
         MAIDEN VS. FDL FOODS 
 
         Page 5
 
         
 
         
 
              post-operative scarring of both wrists.  There is loss of 
 
              range of motion of both wrists.  There is comparative 
 
              weakness of the right hand to grip.  There is an elevated 
 
              vibratory threshold of both hands, worse on the right.
 
         
 
              CONCLUSION:
 
              
 
                 It is my opinion, based upon the findings of this 
 
              examination, that this patient sustained injuries resulting 
 
              in permanent partial disability to the right hand of 40%, 
 
              with an additional 30% functional impairment to the left 
 
              hand.
 
         
 
         (ex. 22, dep. ex. 4, pp. 3 & 4).
 
         
 
              Dr. Fischer explained that his use of the term disability 
 
         was a mistake on his part.  He intended to say impairment.  Dr. 
 
         Fischer further stated that he used tables four and five of the 
 
         Guides to the Evaluation of Permanent Impairment, second edition, 
 
         published by the American Medical Association to arrive at this 
 
         evaluation (ex. 22, pp. 61-68).  Dr. Fischer admitted that he did 
 
         not use table nine in his evaluation (ex. 22, p. 69-72).
 
         
 
              From the foregoing evidence, it is determined that claimant 
 
         did sustain a permanent impairment and disability as a result of 
 
         the injury which occurred on March 17, 1986.  Dr. Nemmers did not 
 
         state how he arrived at his determination that claimant sustained 
 
         no permanent impairment.  He did not state whether he used the 
 
         AMA Guides, the orthopedic surgeons' Guides, some other guides or 
 
         no guides at all.  Dr. Fischer is determined to have completed 
 
         the most detailed physical examination of claimant and has given 
 
         the most trustworthy, reliable and best reasoned opinion on 
 
         causal connection.  Rockwell Graphics Systems, Inc. v. Prince, 
 
         366 N.W.2d 1871 192 (Iowa 1985).
 
         
 
                   ENTITLEMENT TO PERMANENT DISABILITY BENEFITS
 
         
 
              Claimant was released to return to work on August 25, 1986.  
 
         Dr. Nemmers imposed temporary restrictions of 10 pounds for each 
 
         wrist, a total of 20 pounds, until September 15, 1986.  Claimant. 
 
         could perform full duty after that. (exs. 10, pp. 1 & 2; 11 & 
 
         12).  Claimant, however, retired on October 26, 1986, at age 62, 
 
         rather than return to work.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              An EMG was performed on June 16, 1987, and claimant still 
 
         complained of numbness in the long fingers of both hands and a 
 
         burning sensation from the wrist into the palm of both hands.  He 
 
         complained of weakness in the right hand.  The report concluded:
 
         
 
         
 
         
 
         MAIDEN VS. FDL FOODS 
 
         Page 6
 
         
 
         
 
              SUMMARY:  This patient is 11 months post bilateral carpal 
 
              tunnel surgery with persistent elevation of the bilateral 
 
              median motor and sensory distal latencies.
 
         
 
         (ex. 14)
 
         
 
              Still another EMG was performed on July 15, 1988, by the 
 
         same licensed physical therapist.  Claimant still complained of 
 
         numbness in fingers two and three and a tingling in the long and 
 
         ring finger bilaterally.  Claimant stated he was awakened two or 
 
         three times every night.  He continued to take Motrin and found 
 
         it helpful.  The therapist concluded:
 
         
 
              Impression:  Continued elevation of bilateral medial distal 
 
              latencies and slowing of conduction times.  Patient is a 
 
              postoperative patient and sensory latencies my remain 
 
              elevated.
 
         
 
         (ex. 21, p. 1)
 
         
 
              Dr. Fischer found a two and one-half inch curved area of 
 
         operative scarring over the flexor surface of the right wrist, 
 
         extending to the mid palmar surface, and a three-inch area of 
 
         operative scarring over the flexor surface of the left wrist, 
 
         extending to the mid palmar surface.  He found a loss of range of 
 
         motion in both wrists.  He found weakness in the right hand and 
 
         an elevated vibratory threshold of the median nerves of both 
 
         hands, worse on the right. (ex. 22, dep ex. 4, p. 3; ex. 22, pp. 
 
         16-22, 52-57).
 
         
 
              Defendant's counsel correctly demonstrated, by 
 
         cross-examination of Dr. Fischer and in defendant's brief, that 
 
         Dr. Fischer should have, but failed to use table nine of the AMA 
 
         Guides to make his evaluation. (tr. pp. 63-72).  Defendant's 
 
         counsel made the following statement in his brief on pages 6 and 
 
         7:
 
         
 
                 Dr. Fischer calculated a 40% permanent functional loss to 
 
              Maiden's right hand and a 30% functional loss to Maiden's 
 
              left hand purportedly by using the A.M.A. Guides.  If Dr. 
 
              Fischer's observations of Maiden's current condition are 
 
              taken at face value and the A.M.A. Guides utilized in their 
 
              proper manner, the calculation of functional loss works out 
 
              to be 14% to Maiden's right hand and 12% to Maiden's left 
 
              hand.  A correct calculation of functional loss based on Dr. 
 
              Fischer's observations is as follows:
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
                 Right hand
 
                   Sensory loss:  30% (Table 4) x 40% (Table 9) =   12%
 
                   Motor loss:    10% (Table 4) x 35% (Table 9) =  3.5%
 
         
 
         
 
         MAIDEN VS. FDL FOODS 
 
         Page 7
 
         
 
         
 
                   Combined value (Combined Values [Chart])         14%
 
              
 
                 Left hand
 
                   Sensory loss:  30% (Table 4) x 40% (Table 9)       12%
 
         
 
              The figure used from Table 9 is for sensory and motor loss 
 
              for the entire median nerve, not just affected fingers.  
 
              Thus, the above calculation is an absolute maximum based on 
 
              the A.M.A Guides.  Maiden's functional loss is, in all 
 
              likelihood, substantially less.
 
         
 
              The only slight flaw in counsel's work is that if 3.5 
 
         percent is rounded down to 3 percent, the combined value is 15 
 
         percent.  If 3.5 percent is rounded up to 4 percent, the combined 
 
         value is 16 percent.  Strictly speaking, the combined value would 
 
         be 15.5 percent for the calculation for the right hand.  AMA 
 
         Guides, second edition, page 240, combined values chart.
 
         
 
              Claimant's right arm is his dominant arm and it is impaired 
 
         the worst.  Claimant testified that his hands are numb, like a 
 
         toothache.  He can't hold on to anything.  He has no grip.  He is 
 
         awakened at night.  They impair his ability to use his fishing 
 
         rod (tr. pp. 67, 68 & 80).  Claimant said he is able to mow the 
 
         lawn, wash some dishes, vacuum and wash windows once in a while.  
 
         He is not able to do his own repair work on his home, but rather 
 
         his son and his nephew perform the repair work (tr. pp. 86 & 87).  
 
         Claimant testified he is no longer able to garden and he cannot 
 
         coon hunt because he does not have the strength to pull the hides 
 
         off the coons.(tr. P. 88).
 
         
 
              From the foregoing evidence, and after observation of 
 
         claimant's hands and seeing and hearing the witness, Conyers v. 
 
         Ling-Caster Joint Venture, Vol. I, No. 2 State of Iowa Industrial 
 
         Commissioner Decisions 309, (Appeal Decision 1984); and applying 
 
         agency expertise [Iowa Administrative Procedure Act 17A.14(5)], 
 
         it is determined that claimant has sustained an 11 percent 
 
         permanent impairment to his right hand and a 10 percent permanent 
 
         impairment to his left hand.  Eleven percent and 10 percent 
 
         combine to 20 percent using the combined values chart on page 246 
 
         in the third edition of the AMA Guides.  The same result is 
 
         obtained by using the second edition of the Guides.  Therefore, 
 
         it is determined that claimant has sustained a 20 percent 
 
         impairment to both hands, "caused by a single accident", Iowa 
 
         Code section 85.34(2)(s), and is entitled to 100 weeks of 
 
         permanent partial disability benefits (.20 x 500 weeks = 100 
 
         weeks).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                               $75 MEDICAL EXPENSE
 
         
 
              Defendant's contention that claimant was not authorized to 
 
         see Dr. Nemmers on September 4, 1987, is without merit.  Dr. 
 
         Nemmers had been authorized as the orthopedic surgeon to perform
 
         
 
         
 
         MAIDEN VS. FDL FOODS 
 
         Page 8
 
         
 
         
 
         claimant's surgery.   Defendant specifically authorized claimant 
 
         to see Dr. Nemmers on April 22, 1987.  There is no evidence that 
 
         defendant ever told claimant that he was no longer entitled to 
 
         see Dr. Nemmers or that he needed additional permission to see 
 
         Dr. Nemmers.  Therefore, it is determined that claimant's visit 
 
         to Dr. Nemmers on September 4, 1987, when he had continuing 
 
         complaints, was authorized medical care.
 
         
 
              This charge is broken down into $30 for an office visit and 
 
         another $45.  On some exhibits the other $45 is shown as a 
 
         medical report (ex. 18, p. 11).  On another copy of this bill it 
 
         is shown as a disability evaluation (ex. 23, p. 4).  Claimant 
 
         testified that he neither requested a medical report nor an 
 
         evaluation (tr. p. 66).  Employer's medical record for claimant 
 
         for the date June 12, 1987, shows that after the EMG on June 16, 
 
         1987, employer anticipated that T.O. (Tom Osterholz], "will talk 
 
         about Dr. Nemmers evaluation."  after he receives the EMG results 
 
         (exs. 3, p. 6; 15, p. 7).  Tom Osterholz was present during the 
 
         entire hearing as the employer representative and gave no 
 
         testimony to rebut, controvert, contradict or refute claimant's 
 
         sworn testimony that claimant did not order a medical report or a 
 
         disability evaluation.  Therefore, it is determined that claimant 
 
         is entitled to be reimbursed for the $75 which he personally paid 
 
         to Dr. Nemmers from employer or the insurance carrier. (ex. 23).
 
         
 
                                      COSTS
 
         
 
              Claimant has presented a statement of costs (ex. 24).
 
         
 
              Claimant is entitled to the court reporter expense in the 
 
         amount of $238.90 for the deposition of Dr. Fischer.  Division of 
 
         Industrial Services Rule 343-4.33(l).
 
         
 
              Claimant is not entitled to the court reporting expense in 
 
         the amount of $25.92 for a copy of the transcript of the 
 
         deposition of Benjamin Maiden, even though defendant did not 
 
         object to this cost.  A "cost award may include only costs of 
 
         depositions which are introduced in evidence in whole or in part 
 
         at trial."  Woody v. Machin, 380 N.W.2d 727, 730 (Iowa 1986).  
 
         Claimant's deposition was not used in evidence, nor should it 
 
         have been used as evidence, since claimant was available for 
 
         direct and cross-examination in person.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              Claimant is not entitled to recover the cost of fees paid 
 
         for copies or medical records in the amount of $15, $30.75 and 
 
         $10.  These are considered to be trial preparation expenses.  
 
         They are not shown as allowable costs in Division of Industrial 
 
         Services Rule 343-4.33(l) through (7).
 
         
 
              Claimant is not entitled to the $250 independent medical 
 
         examination fee of Dr. Fischer.  These expenses are provided for
 
         
 
         
 
         
 
         MAIDEN VS. FDL FOODS
 
         Page 9
 
         
 
         
 
         in Iowa Code section 85.39.  An independent medical examination 
 
         of Iowa Code section 85.39 was not designated as a hearing issue 
 
         on the hearing assignment order.  Hearing deputies determine 
 
         issues designated as hearing issues on the hearing assignment 
 
         order.  Presswood v. Iowa Beef Processors, Inc., file no. 735442 
 
         (Appeal Decision November 14, 1986).  Since an independent 
 
         medical examination, under Iowa Code section 85.39, was not 
 
         designated as a hearing issue, no determination is made for that 
 
         expense at this time.
 
         
 
              Claimant is entitled to recover $150 of the $300 fee charged 
 
         by Dr. Fischer for the expert testimony in his deposition.  
 
         Division of Industrial Services Rule 343-4.33(5) and Iowa Code 
 
         section 622.72. In conclusion, claimant is allowed $238.90 for 
 
         the court reporter expense and $150 for the expert witness fee 
 
         for Dr. Fischer's testimony.  Total costs allowed $388.90. (ex. 
 
         24).
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              That the cumulative injury which occurred on March 17, 1986 
 
         was the cause of permanent impairment to claimant's hands.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965); 
 
         Lindahl v. L.O. Boggs Co., 236 Iowa 296 18 N.W.2d 607 (1945).  
 
         The argument of claimant's counsel that claimant has sustained an 
 
         industrial disability because, "there has been trauma to the 
 
         hands, the soft tissues, ligament tissues as well as the 
 
         neurological system operating the hands," (tr. p. 42) is without 
 
         merit.
 
         
 
              It is determined that claimant has sustained an injury to 
 
         both hands, "caused by a single accident" and is entitled to be 
 
         compensated on the basis of 500 weeks [Iowa Code section 85.34 
 
         (2) (s)].
 
         
 
              It is determined that claimant has sustained an 11 percent 
 
         permanent partial disability to the right hand and a 10 percent 
 
         permanent partial disability to the left hand, the combined value 
 
         of which is 20 percent of 500 weeks of workers' compensation 
 
         benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Defendant's contention that claimant sustained some 
 
         permanent impairment from his brief attempt to shingle his house 
 
         at the lake cottage is without merit.  Claimant testified he 
 
         tried to hammer, but the hammer flew out of his hand and he had 
 
         to quit.  Claimant's nephew, Kevin B. Fagan, testified that he 
 
         was present when the lake cottage was built and that claimant 
 
         tried to help, but that he wasn't able to do much.  Five other 
 
         people were working to build the cottage.  Claimant's principal 
 
         job was to run errands.  Fagan testified that claimant probably 
 
         put down four shingles, maybe ten, and drove approximately 15 
 
         nails (tr.
 
         
 
         
 
         
 
         MAIDEN VS. FDL FOODS 
 
         Page 10
 
         
 
         
 
         pp. 96-98).  Dr. Fischer testified that claimant's brief amount 
 
         of work for a few days at the cottage would not contribute to his 
 
         impairment or residual dysfunction. (ex. 22, p. 72).
 
         
 
              It is determined that claimant is entitled to be reimbursed 
 
         for the $75 that he paid to Dr. Nemmers.  It is determined that 
 
         he was authorized to see Dr. Nemmers for a follow-up visit for 
 
         the continued trouble he was having with his hands.  The charge 
 
         for the office visit was $30.  Claimant denied he ordered a 
 
         medical report or a disability evaluation or planned to get them.  
 
         This evidence was not controverted.  There is evidence that 
 
         employer did want a medical report and a disability evaluation.  
 
         Therefore, it is determined that claimant is entitled to 
 
         reimbursed for the $75 which he paid to Dr. Nemmers from either 
 
         the employer or the insurance carrier.
 
         
 
              It is determined that claimant is entitled to recover the 
 
         costs of this action in the amount of $388.90 -- $238.90 for the 
 
         court reporter costs for Dr. Fischer's deposition, and $150 of 
 
         Dr. Fischer's expert witness fee.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendant pay to claimant one hundred (100) weeks of 
 
         permanent partial disability at the rate of two hundred 
 
         thirty-one and 83/100 dollars ($231.83) per week in the total 
 
         amount of twenty-three.thousand one hundred eighty-three dollars 
 
         ($23,183) commencing on August 26, 1986.  Iowa Code section 
 
         85.34(2).
 
         
 
              That defendant pay this amount in a lump sum.
 
         
 
              That interest will accrue under Iowa Code section 85.30.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
              That defendant pay to claimant seventy-five dollars ($75) as 
 
         reimbursement for the amount that claimant paid to Dr. Nemmers.
 
         
 
              That the costs of this action are charged to defendant 
 
         pursuant to Division of Industrial Services Rule 343-4.33, more 
 
         specifically, defendant is charged with the cost of the 
 
         transcript of the hearing in the amount of two hundred 
 
         ninety-nine and 63/100 dollars ($299.63).
 
         
 
              Defendant is also to pay claimant three hundred eighty-eight 
 
         and 90/100 dollars ($388.90) for the court reporter costs for Dr. 
 
         Fischer's testimony and one hundred fifty dollars ($150) for the 
 
         expert witness fee for Dr. Fischer's testimony.
 
         
 
         
 
         
 
         MAIDEN VS. FDL FOODS
 
         Page 11
 
         
 
         
 
              That defendant file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
         
 
              Signed and filed this 31st day of May, 1990.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Patrick Tallon
 
         Attorney at Law
 
         633 S. LaGrange Rd.
 
         LaGrange, Il. 60525-6725
 
         
 
         Mr. James M. Heckmann
 
         Attorney at Law
 
         One CyCare Plaza STE 216
 
         Dubuque, Iowa 52001
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         51401; 51402.40; 51402.60;
 
                                         51403.20; 51403.30; 52209;       1803.10; 
 
                                         51803; 52501; 52700; 52907;
 
                                         Filed May 31, 1990 
 
                                         Walter R. McManus, Jr.
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         BENJAMIN M. MAIDEN,
 
         
 
              Claimant,                   File No.  819477
 
         
 
         VS.
 
                                         A R B I T R A T I 0 N 
 
         FDL FOODS, INC.,
 
                                         D E C I S I 0 N
 
              Employer,
 
              Self-Insured,
 
              Defendant.
 
         
 
         
 
         514Ol; 51402.40; 51402.60; 51403.20; 51403.03; 52209
 
         
 
              Claimant worked as a ham boner for 35 years.  It was 
 
         determined that the injury was the cause of bilateral carpal 
 
         tunnel caused by a single accident and benefits were awarded 
 
         under Iowa Code section 85.34(2)(s).  There were not separate 
 
         injuries to each hand when all of the medical professionals 
 
         diagnosed bilateral carpal tunnel.
 
         
 
         1803.1
 
         
 
              It was determined that the injury was not an injury to the 
 
         body as a whole because it affected "the soft tissues, ligament 
 
         tissues as well as the neurological system operating the hands."
 
         
 
         51803
 
         
 
              Claimant awarded 11 percent for the right hand and 10 
 
         percent for the left hand which combined to 20 percent of 500 
 
         weeks which resulted in 100 weeks of benefits.  Calculation of 
 
         defendant's counsel used in part to arrive at this determination.
 
         
 
         52501, 52700
 
         
 
              Defendant ordered to reimburse claimant for $75 of medical 
 
         expenses defendant refused to pay.  Claimant was not required to 
 
         be authorized to go back and see the operating orthopedic surgeon 
 
         after the surgery when he had continued problems with his hands 
 
         when defendant had never terminated the authorization that 
 
         previously existed.  A charge for a medical report/disability 
 
         evaluation appeared to be ordered by defendant rather than 
 
         claimant.  Claimant denied he ordered it.  Employer
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         MAIDEN VS. FDL FOODS 
 
         Page 2
 
         
 
         
 
         representative was present in the courtroom and did not 
 
         controvert claimant's testimony.  Employer's medical notes showed 
 
         that they wanted an evaluation and report and had planned to get 
 
         them.
 
         
 
         52907
 
         
 
              Claimant allowed cost of court reporter for deposition of 
 
         claimant's evaluator and $150 of his expert witness fee.  Medical 
 
         records are not enumerated as authorized costs under Division of 
 
         Industrial Services Rule 343-4.33 (1) through (7).  They are 
 
         trial preparation expenses.  Cost of claimant's deposition 
 
         disallowed because it was not used in evidence, nor should it 
 
         have been, since claimant was available for direct and 
 
         cross-examination at the time of hearing.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM RAMSEY MASON,
 
         
 
              Claimant,
 
                                              FILE NOS. 819978 & 816116
 
         VS.
 
                                                A R B I T R A T I 0 N
 
         THERMO-GAS,
 
                                                   D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         NORTHWEST NATIONAL INSURANCE
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by William 
 
         Ramsey Mason, claimant, against Thermo-Gas, employer, and 
 
         Northwest National Insurance Company (the caption of this case 
 
         shall now be modified accordingly), insurance carrier, 
 
         defendants, for workers' compensation benefits as a result of 
 
         alleged injuries on April 18, 1984 and January 28, 1985.  On 
 
         December 10, 1987, a hearing was held on claimant's petition and 
 
         the matter was considered fully submitted at the close of this 
 
         hearing.  At hearing the parties agreed that a separate claim and 
 
         file should be created for the January 28, 1985 alleged injury 
 
         and a decision rendered thereon in this decision.
 
         
 
              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 the 
 
         following witnesses: P. K. McGinnins, Randy McGinnins and Charles 
 
         Corey.  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.  On April 18, 1984, claimant received an injury which 
 
         arose out of and in the course of his employment with 
 
         Thermo-Gas.
 
         
 
              2.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be 
 
         $205.69 per week.
 

 
         
 
         
 
         
 
         MASON V. THERMO-GAS
 
         Page   2
 
         
 
         
 
              3.  Claimant is not seeking temporary total disability or 
 
         healing period benefits in this proceeding.
 
         
 
              4.  If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability 
 
         to the body as a whole.
 
         
 
              5.  With reference to the medical bills submitted by 
 
         claimant at hearing, it was agreed that the provider would 
 
         testify that the charges were fair and reasonable and 
 
         defendants are not offering contrary evidence.  The issue of 
 
         their causal connection to the work injury or whether the 
 
         treatment was reasonable remains an issue to be decided in this 
 
         decision.
 
         
 
                                   ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         in this proceeding.
 
         
 
              I.  Whether claimant received an injury on January 28, 1985 
 
         arising out of and in the course of employment;
 
         
 
             II.  Whether there is a causal relationship between the 
 
         alleged work injuries and permanent disability;
 
         
 
            III.  The extent of weekly benefits for permanent disability 
 
         to which claimant is entitled; and,
 
         
 
              IV.  The extent of claimant's entitlement to medical 
 
         benefits under Iowa Code section 85.27.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              The following is a summary of the 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 worked for Thermo-Gas from 1979 
 
         until September 17, 1985.  Claimant initially was a bulk tank 
 
         driver making day-to-day deliveries of LP gas to commercial and 
 
         residential customers.  This work required some billing 
 
         responsibilities and route making.  The physical requirements of 
 

 
         
 
         
 
         
 
         MASON V. THERMO-GAS
 
         Page   3
 
         
 
         the job required driving the gas tank truck along with physically 
 
         dragging the large hoses 20 to 100 feet to fill each customer's 
 
         propane tank.
 
         
 
              After approximately two and one-half years, claimant moved 
 
         to service work in which he repaired and serviced propane 
 
         furnaces, hot water heaters and other propane gas appliances.  
 
         Claimant testified that this work involved occasional lifting up 
 
         to 50 pounds.  In the spring of each year, Thermo-Gas sold liquid 
 
         fertilizer to local farmers.  This fertilizer was mixed on the 
 
         premises of Thermo-Gas.  Claimant was assigned to these mixing 
 
         duties each year.  It was while performing this mixing work that 
 
         claimant was first injured.  Claimant initially earned $5.50 per 
 
         hour in the delivery job.  According to his pay records at 
 
         Thermo-Gas, claimant was earning from $1300 to $1500 per month at 
 
         the time of the work injury.  The exact amount of the earnings 
 
         varied from month to month for reasons not entirely clear in the 
 
         record.  Claimant stated at hearing that he had no prior back 
 
         injuries or back difficulties before April, 1984 and was fully 
 
         able to perform physically all work assigned to him.
 
         
 
              The facts surrounding the work injury of April 18, 1984 are 
 
         not in real dispute.  Claimant testified that he slipped on 
 
         fertilizer which had been spilt onto wooden steps in his work 
 
         area and he fell on the steps striking his back.  Following the 
 
         injury, claimant was treated for low back and right hip pain by 
 
         Dr. Weber (first name unknown) whose only diagnosis was a 
 
         contusion to the back after x-rays failed to reveal any 
 
         abnormalities.  This treatment consisted of a couple of weeks of 
 
         physical therapy including hot packs and ultrasound therapy.  
 
         During this time, claimant continued to work at Thermo-Gas.  
 
         Claimant testified that he was able to work despite ongoing back 
 
         pain because fellow employees assisted him in performing heavy 
 
         work.  After completing the physical therapy, claimant 
 
         discontinued treatment but stated that the pain continued on 
 
         occasion depending upon his activity both at home and at work.
 
         
 
              In the summer of 1984, before the second alleged work 
 
         injury, claimant became the company bookkeeper which included 
 
         keeping books of account, making reports and posting data to 
 
         accounts.  Claimant said that he was offered this job by his 
 
         manager in part because the manager knew of his continuing back 
 
         problems after the April, 1984, injury and that the bookkeeping 
 
         work would be easier for him.  Claimant said that his back 
 
         problems were largely responsible for him accepting this type of 
 
         work.  From claimant's pay records, there was no noticeable 
 
         change in claimant's earnings following his transfer from repair 
 
         work to the office as a bookkeeper.
 
         
 
              While working as a bookkeeper at Thermo-Gas, claimant 
 
         testified that he was injured again on January 28, 1985, while he 
 
         was walking in the plant yard after taking a reading on one of 
 
         the storage tanks.  Apparently, recording such readings was a 
 
         part of his bookkeeping job.  Claimant said that he slipped on 
 
         some ice and fell on a frozen "rut" made by one of the propane 
 
         trucks and struck his back in the same place as the injury in 
 
         April, 1984.   Claimant again felt immediate pain in his back but 
 
         this time more localized in the area of the injury.  He then 
 
         began to receive treatment from Dr. Wolf (first name unknown).  
 
         After taking x-rays which again revealed nothing abnormal, Dr. 
 

 
         
 
         
 
         
 
         MASON V. THERMO-GAS
 
         Page   4
 
         
 
         Wolf diagnosed contusion of the back and prescribed further 
 
         physical therapy and light duty work.  Claimant said that a lump 
 
         developed on his spine at that time which persists today.  Most 
 
         of his physicians have opined however that this lump was not due 
 
         to the work injuries.    Claimant stated that Dr. Wolf told him 
 
         to return on an as needed basis.  However, claimant ended on his 
 
         own his physical therapy treatment in February, 1985.. At 
 
         hearing, claimant said that he continued to have pain but 
 
         controlled his pain by performing various home exercises he 
 
         learned following the first injury and changed positions 
 
         frequently while working as the company bookkeeper.
 
         
 
              Claimant ended his bookkeeping job and his employment at 
 
         Thermo-Gas on September 17, 1985.  Claimant said that he had 
 
         difficulties with handling the job as a bookkeeper despite 
 
         receiving some training from Thermo-Gas.  This difficulty had 
 
         nothing to do with his physical problems.  Claimant stated that 
 
         he experienced the most difficulties when Thermo-Gas attempted to 
 
         computerize the bookkeeping system.  Claimant said that despite 
 
         receiving a few days of training in computer operation, he had 
 
         considerable difficulty converting the accounts using the 
 
         computer program.  Whether claimant was terminated or voluntarily 
 
         quit is unclear in the record.  Claimant testified that after 
 
         taking a few days off and thinking about his difficulties as a 
 
         bookkeeper, he asked Thermo-Gas to transfer him back to the 
 
         position he held before becoming a bookkeeper.  Claimant said 
 
         that Thermo-Gas refused this request because they were reluctant 
 
         to terminate the person who had been hired to fill the position 
 
         when claimant became the bookkeeper.  Claimant stated at hearing 
 
         that he had been Olaid off" at that time and then began to draw 
 
         unemployment benefits.
 
         
 
              In the latter part of 1985, claimant on two occasions 
 
         attempted to work for another LP dealer in bulk deliveries as he 
 
         had done for Thermo-Gas back in 1979.  However, claimant said 
 
         that he experienced considerable difficulties with his back in 
 
         this job due to prolonged sitting and lifting and dragging of the 
 
         hoses.  Claimant's inability to continue due to his back 
 
         difficulties and the strenuous nature of this work was verified 
 
         at hearing by this LP dealer.
 
         
 
              When he experienced difficulties with the bulk delivery job 
 
         after leaving Thermo-Gas, claimant consulted an attorney and then 
 
         sought treatment from Raymond Dasso, a board certified orthopedic 
 
         surgeon, in February, 1986.  This orthopedist has over 30 years 
 
         of experience in orthopedic surgery.  After his examination of 
 
         claimant, Dr. Dasso ordered a CT scan and a myelogram test.  The 
 
         myelogram test was found to be normal but the CT scan revealed 
 
         mild degenerative changes with central bulging of the annulus 
 
         fibrosis at L4-5.  No herniation of the disc was found.  Dr. 
 
         Dasso diagnosed claimant suffered from "lumbosacral myofiascial 
 
         [sic] strain, fairly severe and chronic."  The doctor prescribed 
 
         physical therapy and attendance at a back school.  The doctor 
 
         felt that the back school was necessary to prevent further 
 
         injury, not to change claimant's condition.  On August 7, 1986, 
 
         Dr. Dasso discontinued physical therapy as he felt that further 
 
         therapy would no longer help claimant and rated claimant as 
 
         suffering from a 30 percent permanent partial disability.  In 
 
         December, 1986, he lowered the rating to 25 percent and opined 
 
         that in his deposition that such permanent disability is causally 
 

 
         
 
         
 
         
 
         MASON V. THERMO-GAS
 
         Page   5
 
         
 
         connected to the January 28, 1986 fall at Thermo-Gas.  Dr. Dasso 
 
         also imposed permanent restrictions upon claimant's future 
 
         activity consisting of no lifting over 15 pounds and no excessive 
 
         bending, stooping or twisting.  Dr. Dasso also stated in his 
 
         written reports that claimant cannot work over six hours per day.  
 
         However, this six hour limitation apparently only applied to 
 
         claimant's current work because Dr. Dasso stated in his 
 
         deposition that claimant could work as a bookkeeper or in some 
 
         other sedentary occupation up to eight hours per day.
 
         
 
              Claimant testified that he looked for work in the area of 
 
         his residence near Savanna, Illinois but has not as yet been able 
 
         to find suitable employment.  In the past he has worked for a 
 
         chemical company called Chemplex in the reactor control 
 
         department but that such work also involved outside work which 
 
         can be strenuous at times.  The job also involved 12 hour shifts 
 
         which claimant feels he would not be able to do on a day-to-day 
 
         basis.  However, he has applied at Chemplex but has not received 
 
         a response to his application.  Claimant also, for a period of 
 
         time, operated a gas appliance repair business on a self-employed 
 
         basis but was compelled to quit for insurance reasons.  Claimant 
 
         also has converted automobiles to LP gas.
 
         
 
              At the present time claimant works for his father-in-law as 
 
         a retail clerk at a roadside produce stand.  Claimant's 
 
         father-in-law owns and operates a truck garden and the stand.  
 
         The father-in-law testified that he hired claimant due to his 
 
         troubles and pays him $5.00 an hour only because he is a 
 
         relative.  The father-in-law testified that he pays non-relative 
 
         employees a minimum wage of $3.35 per hour.  Claimant only works 
 
         part-time at the stand which is only operated in the summer and 
 
         fall.  Last winter, claimant worked part-time for a furniture 
 
         refinisher at minimum wage.  Corey, the LP dealer in the Savanna, 
 
         Illinois area, testified that jobs are difficult to find in the 
 
         Savanna area at the present time due to a depressed economy.
 
         
 
              Claimant is 37 years of age and graduated from high school. 
 
          He also has completed one semester of college.  Claimant dropped 
 
         out in the second semester for reasons not clear in the record. 
 
         Claimant was also a musician and played in a band for three or 
 
         four years when he was younger but denies he could do this today. 
 
          Claimant also was a bartender for a period of time the Savanna 
 
         area.  Claimant's only formal training in accounting and computer 
 
         work was the few classes he took while working as a bookkeeper 
 
         for Thermo-Gas.
 
         
 
              Claimant was examined by Ralph H. Condon, M.D., another 
 
         orthopedic surgeon, in February, 1987.  Dr. Condon stated that 
 
         after his examination of claimant and review of claimant's past 
 
         medical records, it was his impression that claimant had 
 
         unsubstantiated problems as a result of the injury.  Dr. Condon 
 
         went on to state that claimant should have further treatment 
 
         including physical therapy and a work hardening problem to enable 
 
         him to tolerate work.
 
         
 
              Claimant's appearance and demeanor indicated that he was 
 
         testifying in a truthful manner.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 

 
         
 
         
 
         
 
         MASON V. THERMO-GAS
 
         Page   6
 
         
 
             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.
 
         
 
              In this case, claimant's credible demeanor established that 
 
         he indeed suffered the fall and injury as described in his 
 
         testimony concerning the events of January 28, 1985.
 
         
 
             II.  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 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 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 
 

 
         
 
         
 
         
 
         MASON V. THERMO-GAS
 
         Page   7
 
         
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant established that he  has 
 
         suffered a permanent impairment as a result of the January 28, 
 
         1985 injury.
 
         
 
              Claimant credibly testified that he had no prior back 
 
         problems.  The history relied upon by Dr. Dasso in rendering his 
 
         causal connection opinions was essentially the same story he told 
 
         at hearing.  The opinions of Dr. Dasso were for the most part 
 
         uncontroverted in the record.  Dr. Dasso is a qualified board 
 
         certified orthopedic surgeon with over 30 years of experience and 
 
         such a background is certainly impressive.  The background of Dr. 
 
         Condon on the other hand was unknown.  Admittedly, the fact that 
 
         claimant did not seek further treatment until after his 
 
         termination at Thermo-Gas certainly was not helpful to his case.  
 
         However, claimant's activity was relatively sedentary during this 
 
         period of time and it is only logical that he would not 
 
         experience difficulties again until his activity increased when 
 
         he attempted to return to work as a delivery truck driver in the 
 
         latter part of 1985.
 
         
 
              III.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899 (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors.  These factors 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.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, February 
 
         28, 1985).
 
         
 
              In the case sub judice, claimant's medical condition before 
 
         the work injury was excellent and he had no functional 
 
         impairments or ascertainable disabilities.  Claimant was able to 
 
         fully perform physical tasks involving heavy lifting, repetitive 
 
         lifting, bending, twisting and stooping; and prolonged standing 
 
         and sitting.
 

 
         
 
         
 
         
 
         MASON V. THERMO-GAS
 
         Page   8
 
         
 
         
 
              Claimant's treating physician, Dr. Dasso, has given claimant 
 
         a significant permanent impairment rating to the body as a whole 
 
         and has restricted claimant's work activities by prohibiting 
 
         tasks such as heavy lifting, or excessive bending, twisting or 
 
         stooping.  Claimant also has trouble with prolonged sitting.
 
         
 
              Claimant's medical condition prevents him from returning to 
 
         his former work or to any other work which requires claimant to 
 
         violate the work restrictions.  Claimant is best suited for the 
 
         employment as a propane delivery driver or as a propane appliance 
 
         serviceman.  Claimant demonstrated that he cannot perform these 
 
         jobs fully because the need for occasional lifting in excess of 
 
         his restrictions.  Claimant admitted that he performed work as a 
 
         serviceman and ended his work only for insurance reasons, not 
 
         because of his disability.  However, it is clear that claimant 
 
         would have to make accommodations for his physical impairments in 
 
         any such work as a serviceman due to his lifting restrictions and 
 
         his restrictions against excessive bending and stooping.
 
         
 
              Claimant has been motivated to look for suitable light duty 
 
         employment but has not been able to find such work in the area of 
 
         his residence.  This is in part due to the depressed state of the 
 
         economy and disabilities caused by such downturns in the economy 
 
         is not compensable.  See Webb v. Lovejoy Construction Co., II 
 
         Iowa Industrial Commissioner Report, 430 (1981).
 
         
 
              Claimant is 37 years of age and should be in the most 
 
         productive years of his life.  His disability is more severe than 
 
         would be the case for a younger or an older individual.  Claimant 
 

 
         
 
         
 
         
 
         MASON V. THERMO-GAS
 
         Page   9
 
         
 
         has a high school education and some college.  He also did not 
 
         lose his job at Thermo-Gas because of his disability.  He is in a 
 
         better position than many injured claimants in his attempts to 
 
         locate sedentary or office type work.  However, it is clear that 
 
         claimant is intellectually and physically able to work as a full 
 
         time bookkeeper, office clerk or other low grade office type of 
 
         occupation.  On the other hand, his unsuccessful efforts to 
 
         remain as a bookkeeper at Thermo-Gas demonstrates an inability to 
 
         function in a more responsible accounting type of position.  
 
         There is also no reason why claimant cannot work full time in a 
 
         retail salesclerk position as well.  However, the work claimant 
 
         is able to perform is certainly much lower pay than his work at 
 
         Thermo-Gas at the time of the work injuries.  As indicated by 
 
         claimant's father-in-law, he normally pays his help minimum of 
 
         $3.35 per hour.
 
         
 
              After examination of all of the factors, it is found as a 
 
         matter of fact that claimant has suffered a 40 percent loss of 
 
         his earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 200 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2)(u) which is 40 percent of the 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.  These benefits shall be awarded from the date 
 
         of injury as claimant is not seeking healing period benefits.
 
         
 
              IV.  Claimant is also seeking reimbursement for the 
 
         treatment he obtained for his work injury after leaving the 
 
         employment at Thermo-Gas.  From a review of the medical records 
 
         and the bills submitted, it is clear that all of the bills are 
 
         causally connected to the work injuries found herein and it also 
 
         appears that the treatments were reasonable as they were 
 
         performed by a board certified orthopedic surgeon and defendants 
 
         have not offered any contrary evidence.  Defendants claim that 
 
         the treatment after claimant left the employment of Thermo-Gas 
 
         was not authorized and claimant is not entitled to reimbursement 
 
         for such expenses under Iowa Code section 85.27 which provides 
 
         employers with the right to choose the medical care.
 
         
 
              However, section 85.27 applies only to injuries compensable 
 
         under Chapters 85 and 85A, 85B or 87 of The Code and obligates 
 
         the employers to furnish reasonable medical care.  This agency 
 
         has held that it is inconsistent to deny liability and the 
 
         obligation to furnish care on one hand and at the same time claim 
 
         a right to choose the care.  Kindhart v. Fort Des Moines Hotel, 
 
         (Appeal Decision, March 27, 1985); Barnhart v. MAQ, Inc., I Iowa 
 
         Industrial Commissioner Report 16 (1981).
 
         
 
              The right to control the medical care must be conditioned 
 
         upon the establishment of liability for an injury either by 
 
         admission or final agency decision.  Iowa Code section 85.27 does 
 
         not give the employer the right to choose the care without 
 
         affording the claimant the right to petition the commissioner to 
 
         resolve disputes concerning such care.  However, this agency does 
 
         not have authority to order an employer to furnish any particular 
 
         care unless the employer's liability for an injury under Chapters 
 
         85, 85A or 85B has been established.  Therefore, the right to 
 
         control the care must coincide with this agency's jurisdiction 
 
         over the matter.
 
         
 

 
         
 
         
 
         
 
         MASON V. THERMO-GAS
 
         Page  10
 
         
 
              Defendants in this case throughout these proceedings have 
 
         denied the causal connection and liability for claimant's 
 
         symptoms after leaving Thermo-Gas in September, 1985.  They also 
 
         have not offered any other care to claimant.  For these reasons 
 
         and absent a future change in defendants' legal position as to 
 
         the issue of liability, defendants will not have the right to 
 
         choose the medical care for claimant's complaints after 
 
         September, 1985, until a decision of this agency establishing the 
 
         compensability of such complaints becomes final.  Therefore, the 
 
         expenses listed in the prehearing report totaling $3,037.11 will 
 
         be awarded to claimant.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  Claimant was a credible witness.
 
         
 
              2.  Claimant was in the employ of Thermo-Gas at all times 
 
         material herein.
 
         
 
              3.  On April 18, 1984, and again on January 28, 1985, 
 
         claimant suffered an injury to the low back which arose out of 
 
         and in the course of employment with Thermo-Gas.  The first 
 
         injury involved a fall upon wooden steps while mixing fertilizer 
 
         and the second injury involved a fall in the plant yard on a 
 
         frozen "rut" after slipping on ice.
 
         
 
              4.  The work injury of January 28, 1985, was a cause of a 25 
 
         percent permanent partial impairment to the body as a whole and 
 
         of permanent restrictions upon claimant's physical activities 
 
         consisting of no lifting over 15 pounds and no excessive bending, 
 
         stooping or twisting or prolonged sitting.  Claimant had no 
 
         physical limitations before April 18, 1984.
 
         
 
              5.  The work injury of January 28, 1985 and the resulting 
 
         permanent partial impairment was a cause of a 40 percent loss of 
 
         earning capacity.  Claimant had no prior ascertainable industrial 
 
         disability.  Claimant is 37 years of age and has not been able to 
 
         return to work in employment in the propane injury for which he 
 
         is best suited.  Claimant has worked as a bookkeeper and has one 
 
         semester of college but the bookkeeping job was not successful.  
 
         Claimant has skill in the repair of LP gas appliances but has not 
 
         been able to find, at the present time, utilization of such 
 
         skills in employment suitable to his physical limitations.  
 
         Claimant has been a bartender and currently works as a retail 
 
         salesclerk.  Claimant's earnings at the time of his work injury 
 
         was approximately $1300 to $1500 per month.  Claimant's current 
 
         job only provides income to most people at $3.35 per hour 
 
         although claimant is currently making $5.00 per hour because he 
 
         is working for a relative.
 
         
 
              6.  The medical expenses requested by claimant as set forth 
 
         in the prehearing report totaling $3,037.11 are fair and 
 
         reasonable and were incurred for fair and reasonable treatment 
 
         for the work injuries of April 18, 1984 and January 28, 1985.  
 
         Defendants did not offer to claimant treatment after September, 
 
         1985 and have denied liability for symptoms in claimant's back 
 
         after September, 1985.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 

 
         
 
         
 
         
 
         MASON V. THERMO-GAS
 
         Page  11
 
         
 
              Claimant has established by a preponderance of the evidence 
 
         entitlement to permanent partial disability benefits and medical 
 
         benefits as awarded below.
 
         
 
                                      ORDER
 
         
 
              1.  Defendants shall pay to claimant two hundred (200) weeks 
 
         of permanent partial disability benefits at the rate of two 
 
         hundred five and 69/100 dollars ($205.69) per week from January 2 
 
         8, 1985 .
 
         
 
              2.  Defendants shall pay to claimant the sum of three 
 
         thousand thirty-seven and 11/100 dollars ($3,037.11) as 
 
         reimbursement for medical expenses.
 
         
 
              3.  Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive credit against this award for benefits 
 
         previously paid.
 
         
 
              4.  Defendants shall pay interest on benefits awarded herein 
 
         as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6.  Defendants shall file activity reports on payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 17th day of February, 1988.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                             LARRY P. WALSHIRE
 
                                             DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Mark A. Tarnow
 
         Attorney at Law
 
         400 Black Hawk Federal Bldg.
 
         P. 0. Box 186
 
         Rock Island, Illinois 61201
 
         
 
         Mr. Thomas N. Kamp
 
         Attorney at Law
 
         600 Davenport Bank Bldg.
 
         Davenport, Iowa 52801
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1803; 2500
 
                                               Filed February 17, 1988
 
                                               LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         WILLIAM RAMSEY MASON,
 
         
 
              Claimant,
 
                                             FILE NOS. 819978 & 816116
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         THERMO-GAS,
 
                                                  D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         NORTHWEST NATIONAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1803; 2500
 
         
 
              Claimant awarded 40 percent industrial disability benefits 
 
         and medical benefits for a work injury.  Claimant has been 
 
         restricted from performing manual labor in the type of work he is 
 
         best suited which is as a delivery person or serviceman in the LP 
 
         gas industry.  Claimant currently only works as a part-time 
 
         retail clerk in a fruit stand owned by his father-in-law.  
 
         However, claimant has a high school education and one semester in 
 
         college with experience in bookkeeping and office clerical type 
 
         work.