BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        HAROLD L. BRUCE,
 
        
 
            Claimant,
 
                                                  File No. 820695
 
        vs.
 
                                               A R B I T R A T I O N
 
        ALTER METAL CO., INC.,
 
        E. COHN & SONS DIVISION,                  D E C I S I O N
 
        
 
            Employer,
 
                                                        F I L E D
 
        and
 
                                                     AUG 18 1989
 
        LIBERTY MUTUAL INSURANCE,
 
                                                 INDUSTRIAL SERVICES
 
            Insurance Carrier,
 
            Defendants.
 
                       
 
                       
 
                                      INTRODUCTION
 
                       
 
            This is a proceeding in arbitration brought by Harold L. 
 
        Bruce against his former employer, Alter Metal Company, Inc., E. 
 
        Cohn & Sons Division, and its insurance carrier, Liberty Mutual 
 
        Insurance Company. The case was heard and fully submitted at 
 
        Cedar Rapids, Iowa on January 4, 1989. The record in the 
 
        proceeding consists of testimony from Harold L. Bruce, Norman 
 
        Turley, Gary Walljasper and Jeff Johnson. The record also 
 
        contains claimant's exhibits A through Q and defendants' exhibits 
 
        1 through 8.
 
        
 
                                      ISSUES
 
                       
 
             The issues identified-by the parties for determination are: 
 
             Whether claimant sustained an injury which arose out of and in 
 
             the course of employment; whether any alleged injury proximately 
 
             caused any temporary or permanent disability which affects Harold 
 
             Bruce; determination of claimant's entitlement, if any, to 
 
             compensation for temporary total disability or healing period. 
 
             It was stipulated by the parties that any such entitlement would 
 
             commence January 13, 1986, but claimant contends that the 
 
             entitlement should end March 1, 1988 while defendants contend 
 
             that if payable, it should end November 9, 1987. Claimant's 
 
             entitlement to compensation for permanent partial or permanent 
 
             total disability was identified as an issue, together with the 
 
             commencement date for payment of any permanent partial disability 
 
             benefits. Claimant's entitlement to recover medical expenses 
 
             under section 85.27 of The Code was also identified as an issue. 
 
             The only issue in that regard, however, was the employer's 
 
             liability for claimant's low back condition, the condition upon 
 
             which the claim is based. Claimant asserted the odd-lot doctrine 
 
             as a means of establishing permanent total disability. He 
 
             alleged that the injury resulted, in whole or in part, from 
 
             cumulative trauma and also seeks penalty for the unreasonable 
 
             denial of compensation in accord with the fourth unnumbered 
 
             paragraph of Code section 86.13.
 
                  
 
                                 SUMMARY OF EVIDENCE
 

 
        
 
 
 
 
 
                  
 
            The following is a summary of evidence presented in this 
 
        case. Of all the evidence received at the hearing, only that 
 
        considered most pertinent to this decision is discussed. 
 
        Conclusions about what the evidence showed are inevitable with 
 
        any summarization. The conclusions in the following summary 
 
        should be considered to be preliminary findings of fact.
 
        
 
             The summary of facts provided by defendants in their 
 
             posthearing brief is generally accurate and is used as the basis 
 
             for the following summary with, however, some modifications.
 
             
 
             Harold Bruce is a 43-year-old, married man who completed the 
 
             eighth grade, but then dropped out of school. He recently 
 
             obtained a GED subsequent to the injury which is the subject of 
 
             this litigation. At the time of hearing, claimant was employed 
 
             as a security guard for Midland Security for which he was paid 
 
             $3.35 per hour and worked approximately 20 hours per week. 
 
             Claimant stated that he is not satisfied with his current job. 
 
             He stated that the wages are not sufficient to enable him to 
 
             support his family and he finds the work to be boring. Claimant 
 
             stated that he sometimes must work in cold weather which tightens 
 
             his back and increases his pain. Claimant stated that he would 
 
             work full time if it were offered, but that his employer has not 
 
             discussed full-time employment with him.
 
                  
 
             Claimant testified that he would be willing to engage in 
 
             retraining if there were certainty that he would be able to 
 
             obtain work upon completion of the training. Claimant was 
 
             reluctant, however, to undertake a two-year educational program 
 
             in order to obtain a job that paid $6.00 per hour. Claimant felt 
 
             unable to attend full-time schooling and hold a job at the same 
 
             time. Claimant testified that he was earning $8.60 per hour and 
 
             also had fringe benefits at the time of his injury.
 
             
 
             Claimant stated that the job of crane operator involves 
 
             operating levers with one's hands and feet. He stated that the 
 
             physically demanding portion of the job is lifting a metal box 
 
             which claimant estimated to weigh 150 pounds in order to perform 
 
             preventive maintenance every morning. He stated that an 
 
             additional heavy part of the job involved sorting scrap metal 
 
             into piles, some pieces of which weighed as much as 70 or 80 
 
             pounds. Claimant related that moving the crane about provided a 
 
             very rough ride. Claimant agreed that most of his time was spent 
 
             inside the crane actually operating it.
 
        
 
             Claimant testified that, on January 2, 1986, he was 
 
             operating a crane for the employer and the bevel gears went out. 
 
             He then assisted a repairman from REXCO to repair the bevel gears 
 
             which had gone out of the crane. Claimant stated that in doing 
 
             so, he lifted and carried a drum and gear assembly which weighed 
 
             in excess of 200 pounds. Claimant stated that while doing so, he 
 
             felt pain in his back, hips and waist. He described the pain as 
 
             sharp, but not real bad. Claimant stated that he had no back 
 
             pain when he started work on that day. He stated that his back 
 
             bothered, but that he kept working. Claimant stated that he 
 
             talked to Norman Turley and the REXCO serviceman about it. 
 
             Claimant testified that he told Turley that he needed to stop 
 
             doing that kind of work because it was tearing up his back. 
 
             Claimant stated that Turley asked him if he thought his back 
 
             would be alright and claimant replied that he thought it would. 
 
             Claimant stated that during the night following the incident, his 
 
             back became real bad and that it was real bad the following day. 
 
             Claimant stated that he continued to work until January 13 and 
 
             went to see Earl Y. Bickel, M.D., on January 14. Claimant stated 
 
             that following the incident and up to the time that he went to 
 

 
        
 
 
 
 
 
             the doctor, he continued to work. He stated that approximately 
 
             two days were spent repairing the crane and that once it was 
 
             repaired he resumed operation of it. Claimant stated that he had 
 
             constant pain in his lower back and hip area.
 
        
 
            Claimant stated that after seeing Dr. Bickel, he was 
 
        authorized to return to work, but that the doctor told him he 
 
        should not lift or bend. Claimant stated that he told Norm 
 
        Turley he was unable to lift and bend. Claimant stated that 
 
        Turley told him operating the crane was the easiest job in the 
 
        workplace and that if he were unable to perform it, he should go 
 
        home. Claimant then went home and has not returned to work with 
 
        the employer since that day.
 
        
 
            E. Cohn & Sons has operated a salvage yard in Cedar Rapids, 
 
        Iowa for many years. In January of 1985, Alter Metal Company, 
 
        Inc. became the owner. Claimant began working for the employer 
 
        in 1966. He worked first as a laborer and then for about 13 
 
        years as a torch man, welder and repairman. In 1979, he became a 
 
        crane operator and held that same job until January, 1986.
 
        
 
             Claimant had an interbody cervical fusion in 1984, at which 
 
             time Dr. Bickel became aware that claimant had a 
 
             spondylolisthesis at L5-Sl (Bickel dep., page 23). Claimant had 
 
             previously experienced some low back pain intermittently for 
 
             which he was able to compensate. Dr. Bickel explained that a 
 
             spondylolisthesis can be congenital, developmental or traumatic. 
 
             He felt that claimant's was congenital or early developmental 
 
             (Bickel dep., pages 24-26). Claimant's was evaluated as being 
 
             grade II which meant that the fifth lumbar vertebra had slipped 
 
             forward on the sacrum about one-half the distance of the 
 
             vertebral body (Bickel dep., page 7).
 
        
 
             Dr. Bickel's knowledge of the work which claimant performed 
 
             was based on the history provided by claimant (Bickel dep., page 
 
             29). Dr. Bickel stated that it would be possible for claimant's 
 
             condition to have become symptomatic to the point that existed in 
 
             January of 1986 without any specific trauma or injury, but he 
 
             expressed the opinion that claimant's spondylolisthesis became 
 
             symptomatic as a result of claimant's work aggravating the 
 
             preexisting condition (Bickel dep., pages 12, 19 and 20).
 
        
 
            When Alter Metal purchased E. Cohn & Sons in January of 
 
        1985, claimant was examined by the company physician, David 
 
        Thaler, M.D., who authorized claimant to return to work. 
 
        Claimant did not report any back trouble to Dr. Thaler at that 
 
        time. Claimant could not recall experiencing any other injuries 
 
        during the time that Alter Metal owned the company.
 
        
 
            Norman Turley has been employed by E. Cohn & Sons for 
 
        approximately 32 years. He has at one time or other held all of 
 
        the positions in the workplace. Turley was instrumental in 
 
        getting claimant the job as a crane operator. Turley estimated 
 
        in his deposition that the electrical box which was moved in 
 
        order to perform preventive maintenance on the crane weighed 100 
 
        pounds. At the time of hearing, he estimated the weight at 50 
 
        pounds. Turley had been a supervisor since 1981. Turley 
 
        testified that many of the employees occasionally complained of 
 
        back pain and that claimant was no different from the others in 
 
        that regard.
 
        
 
            With regard to the events of January 2, 1986, Turley 
 
        confirmed that the crane had broken down and that claimant was 
 
        assisting the REXCO representative, although he did not observe 
 
        claimant's actual role in the process. Turley stated
 
        
 

 
        
 
 
 
 
 
             Well I can remember walking up the driveway, Harold was 
 
             working on the particular crane, and I saw Harold standing 
 
             on the ground, and I walked up to him and I said, how are 
 
             you doing? And he said, my back hurts. I informed Harold, 
 
             like I inform everybody there, if you just hurt your back, 
 
             you have to go see the company doctor. That was my job. 
 
             That's exactly what I said. And he said, no, he said, you 
 
             know, it just hurts. And I told him again, I said, now, 
 
             Harold, if you hurt your back on the job, you have to go see 
 
             the company doctor. And he said, no, it just hurts. And 
 
             that's the conversation Harold and I had.
 
             
 
        (Exhibit F, page 28)
 
        
 
             Turley confirmed that claimant finished working out the day 
 
             on January 2 and continued to work on a regular basis until 
 
             January 14. Turley stated that claimant did not make more 
 
             complaints about his back until January 14, 1986. Turley 
 
             confirmed that on January 14, 1986, he observed claimant standing 
 
             by the crane. When Turley asked what was the matter, claimant 
 
             told him he could not operate the crane anymore. Turley stated 
 
             that it was the easiest job in the place, and that if he could 
 
             not do it, he should go home.
 
        
 
             Dr. Bickel's report of January 16, 1986 (exhibit A, pages 1 
 
             and 2) includes the following:
 
        
 
             X-ray examination of his lumbar spine demonstrates that he 
 
             has spondylolisthesis at L5-S1 with degenerative changes 
 
             present. The degree of slip is rated at Grade II.
 
             
 
             In discussing his problems, it appears that he has been 
 
             lifting entirely too much. It is difficult to believe that 
 
             they would require him to lift as high as 200+ lbs. He 
 
             states that he has to do this occasionally to get something 
 
             out of the crane. The remainder of the type of work that he 
 
             is doing is also heavy work, and I am not sure that he is 
 
             able to carry this out with any great facility. The 
 
             spondylolisthesis that he has present probably is beginning 
 
             to bother him with this heavy, manual type of work. It will 
 
             be difficult for him to change jobs. He has already had a 
 
             fusion at C5-6 and C6-7 plus it will also be difficult for 
 
             him to continue with his present state of heavy work.
 
             
 
             I have fit him with a lumbosacral support and instructed him 
 
             that he must not lift heavy things, refuse if asked to lift 
 
             anything terribly heavy. Most of his difficulty seems to be 
 
             an aggravation of his present problem.
 
        
 
        When deposed, Dr. Bickel explained that it is not uncommon for 
 
        pain to worsen in the days following heavy lifting (Bickel dep., 
 
        page 21).
 
        
 
             As a result of claimant requesting workers' compensation 
 
             benefits, he was contacted by adjustor Gary Walljasper who 
 
             obtained a recorded statement (exhibit 1). Walljasper then 
 
             denied claimant's claim on the ground that there was no specific 
 
             work incident (exhibit H). The employer's group insurance 
 
             carriers paid claimant disability income and a portion of his 
 
             medical expenses.
 
        
 
            Claimant remained under treatment with Dr. Bickel. On May 
 
        22, 1986, lumbar fusion surgery was performed from L4 through the 
 
        sacrum. After an extended period of recovery, it was determined 
 
        that the fusion had failed and that there was a nonunion. Dr. 
 
        Bickel's partner, William A. Roberts, M.D., another orthopaedic 
 

 
        
 
 
 
 
 
        surgeon in the same firm, performed a revised fusion surgery with 
 
        metalic fixation on the 11th of March, 1987. The second fusion 
 
        surgery was successful and 12 weeks postsurgery claimant stated 
 
        to Dr. Roberts that his pain was resolving and that he was 
 
        walking approximately four miles per day (Roberts dep., pages 11 
 
        and 12).
 
        
 
            Dr. Roberts placed claimant into a physical conditioning 
 
        program. On October 14, 1987, a functional capacity assessment 
 
        was performed, as a result of which Dr. Roberts indicated that 
 
        claimant was able to safely lift 50 pounds repetitively. Dr. 
 
        Roberts released claimant to return to work effective November 9, 
 
        1987 with a 50-pound lifting restriction (Roberts dep., pages 12 
 
        and 13; exhibit 5). On December 1, 1987, Dr. Roberts assigned an 
 
        impairment rating of 8-10 percent of the whole body. He further 
 
        indicated that claimant was continuing to improve and that the 
 
        final impairment should be determinable within the next three 
 
        months (Roberts dep., pages 14 and 15).
 
        
 
             In December, 1988, claimant was administered a functional 
 
             capacity assessment. After the assessment, Dr. Roberts assigned 
 
             claimant a 15 percent permanent partial impairment rating and 
 
             placed claimant's lifting restriction at 30 pounds. Dr. Roberts 
 
             further stated that claimant should avoid repetitive activities 
 
             such as bending or twisting (Roberts dep., vol. 2, pages 27-30). 
 
             Dr. Roberts indicated that claimant had become physically 
 
             deconditioned since the 1987 functional capacity assessment and 
 
             that if claimant were to undergo cardiovascular training and get 
 
             back into shape, his physical limitations would be relaxed, but 
 
             that his impairment rating would remain the same (Roberts dep., 
 
             vol. 2, pages 30 and 31).
 
        
 
            Claimant was examined by Richard F. Neiman, M.D., an Iowa 
 
        City neurologist. Dr. Neiman assigned claimant a 20 percent 
 
        impairment rating with a 25-pound lifting restriction (Neiman 
 
        dep., pages 16, 17, 21-25). Dr. Neiman felt that a causal 
 
        relationship existed between claimant's work and his symptoms 
 
        (Neiman dep., pages 25 and 26). He explained that it is not 
 
        uncommon for the onset of pain to follow the aggravating event by 
 
        several hours (Neiman dep., page 10). Dr. Neiman went on to 
 
        explain that if claimant were symptom free, he would not have 
 
        assigned any permanent impairment rating based solely upon the 
 
        existence of the spondylolisthesis (Neiman dep., page 26).
 
        
 
            On July 1, 1987, claimant was referred to Owen Julius of the 
 
        state rehabilitation office in Cedar Rapids by Jerry Gillion, 
 
        claimant's physical therapist. Mr. Gillion felt that he had 
 
        maximized his physical improvement and needed to see about 
 
        employment within his restrictions and limitations. Claimant had 
 
        seen Mr. Julius before the second surgery on March 11, 1987, but 
 
        no file was opened because of the upcoming surgery (exhibit 3, 
 
        Julius notes, July 1, 1987). Mr. Julius referred claimant to 
 
        psychologist Quentin R. Sabotta who gave him a Wechsler Adult 
 
        Intelligence test. Mr. Sabotta concluded that claimant had a 
 
        full scale IQ of 107, which placed him in the upper limits of the 
 
        normal range of intellectual ability. Psychologist Sabotta 
 
        further concluded that claimant was clearly capable of 
 
        functioning effectively in an appropriate vocational setting, but 
 
        the adequacy of his motivation was questionable (exhibit 2, 
 
        Sabotta report, June 30, 1987). Mr. Julius transferred 
 
        claimant's case file to Kirkwood Community College Skills Center 
 
        and claimant was assigned to counselor Gale Pierce. On August 
 
        26, 1987, claimant was referred to the basic skills assessment 
 
        program primarily to complete the SAGE System (system of 
 
        assessment for group evaluation). SAGE is a series of three test 
 
        programs to assess aptitudes, abilities and interest (exhibit 2, 
 

 
        
 
 
 
 
 
        Skill Center Student Report, August 28, 1987). Claimant did very 
 
        well with the SAGE system. His evaluator, Dave Kerton, concluded 
 
        as follows:
 
        
 
             This evaluator was pleasantly surprised to see how well 
 
             Harold performed on the SAGE since he only went through the 
 
             eighth grade of school. It would be very beneficial to 
 
             Harold to earn a general equivalency diploma. Results of 
 
             Harold's performances on the SAGE indicate, especially when 
 
             the 1 standard error of measurement was added to a few of 
 
             Harold's performances, Harold has the aptitudes and 
 
             abilities for success in numerous jobs.
 
             
 
        (Exhibit 2, Skill Center Student Report, August 28, 1987)
 
        
 
            Claimant was referred for evaluation in bookkeeping, 
 
        calculator operations, and record-keeping, so as to determine 
 
        feasibility for competitive employment or further retraining. 
 
        The area supervisor, Mary White, reported on claimant's student 
 
        work performance on October 1, 1987. Claimant was excellent in 
 
        alphabetic and numeric filing, shipping and receiving. The 
 
        evaluator felt that in all areas claimant explored with the 
 
        exception of bookkeeping (in which he really was not interested) 
 
        he was able to complete given tasks to the satisfaction of the 
 
        evaluator. The evaluator felt that claimant's disability did not 
 
        affect his work performance as to problem solving skills; 
 
        performing repetitious work; working with details; and initiative 
 
        (exhibit 2, Student Progress Report, October 1, 1987).
 
        
 
             On October 8, 1987, claimant was referred to the personal 
 
             achievement department for the purpose of obtaining GED and 
 
             improving math and writing skills. Claimant did obtain a GED. 
 
             Counselor Janice Means reported on October 19, 1987 that 
 
             claimant's ability to learn and retain information as indicated 
 
             by the test scores was excellent (90-100%). In addition, he had 
 
             excellent study skills and it was recommended that claimant had 
 
             the academic ability to pursue further training (exhibit 2, 
 
             personal achievement department report, October 8, 1987). On 
 
             October 26, 1987, area supervisor Mary K. White again reported on 
 
             claimant's work adjustment in the business office. She stated 
 
             "Harold has continued to demonstrate competitive work skills." 
 
             Her recommendations for claimant's consideration were shipping 
 
             clerk, inventory clerk, counter worker, file clerk, desk clerk 
 
             and parts clerk (exhibit 2, Mary K . White report, October 26, 
 
             198 7).
 
        
 
             Claimant was referred to the job readiness group for the 
 
             purpose of providing information regarding employer expectations, 
 
             attitudes and values as they relate to work. An exploration of 
 
             job skills was also done. On October 30, 1987, supervisor Mary 
 
             Lou Heitz reported claimant demonstrated a positive and 
 
             cooperative attitude in the job readiness group. Socially he was 
 
             appropriate in his interactions with his instructors and other 
 
             students. His primary disability, i.e., a back impairment, did 
 
             not interfere with his performance during his work with the job 
 
             readiness group (exhibit 2, Mary Lou Heitz report).
 
        
 
            On November 9, 1987, Janice Means of the personal 
 
        achievement department reported claimant's ability to learn and 
 
        retain information as indicated by test scores was excellent 
 
        (90-100%) . He had excellent study skills and his disability did 
 
        not affect his performance (exhibit 2, Janice Means report, 
 
        November 9, 1987). On November 30, 1987, area supervisor Mary 
 
        White submitted another work adjustment report. Claimant was 
 
        average to above average in almost every category. Supervisor 
 
        White noted "Harold has not yet made a determination as to 
 

 
        
 
 
 
 
 
        seeking competitive employment or further vocational training" 
 
        (exhibit 2, Mary White report, November 30, 1987). On December 
 
        16, Mary Lou Heitz, career exploration supervisor, reported that 
 
        as of November 25, claimant had completed the career exploration 
 
        program, but was no closer to making a decision about a 
 
        vocational goal, whether to pursue schooling or employment. She 
 
        reported, "Harold started at the Kirkwood Skills Center on August 
 
        26, 1987 for the purpose of establishing vocational goals and 
 
        objectives. He did obtain the GED diploma but as of December 24, 
 
        1987 had not identified a specific area of interest." On 
 
        December 17, 1987, Janice Means reported that claimant had passed 
 
        the GED mathematics test. His ability to learn and retain 
 
        information as indicated by test scores was excellent. She 
 
        stated "Harold is an exceptional student. He is presently 
 
        improving his geometry, spelling and grammar." She recommended as 
 
        follows: "Harold has the academic ability to pursue further 
 
        training. He needs to make a decision and start the spring 
 
        quarter" (exhibit 2, report of personal achievement department, 
 
        Janice Means, December 17, 1987). On February 17, 1988, Janice 
 
        Means reported claimant's academic assessment as follows: "At 
 
        the present time Harold's academic skills would indicate a 
 
        beginning college level" (exhibit 2, report of Janice Means, 
 
        February 17, 1988).
 
        
 
            On February 8, 1988, claimant started an on-the-job work 
 
        experience at the Muscular Dystrophy Association in Cedar Rapids. 
 
        He worked at the site from 9:00 a.m. until 1:00 p.m., five days 
 
        per week until April 11, 1988. He was evaluated April 12, 1988 
 
        by his employer, Bernie Donnolly. In most areas, claimant was 
 
        evaluated good or excellent. In the area of "physical fitness" 
 
        for the job, claimant received a mark of excellent (exhibit 2, 
 
        Bernie Donnolly evaluation, April 12, 1988).
 
        
 
             Liberty Mutual Insurance Company employed Resource 
 
             Opportunities Incorporated, a Des Moines based rehabilitation 
 
             firm, to work with claimant in seeking employment. Vocational 
 
             consultant Jeff Johnson was assigned to the case. He met 
 
             claimant in attorney Wertz' office when the initial assessment 
 
             was done by his employer Jack Reynolds in May of 1987. He did 
 
             not see claimant again until after he had been released to return 
 
             to work by Dr. Roberts on November 9, 1987. At this time, 
 
             claimant was attending the Skill Center at Kirkwood. Counselor 
 
             Jeff Johnson was asked to do job placement, that is to actively 
 
             work with him in contacting employers to locate employment. The 
 
             purpose of the Skill Center was to evaluate claimant within the 
 
             different skill areas and type of working conditions. Johnson 
 
             arranged to have claimant take a GAT-B test through Job Service 
 
             This is an aptitude test to determine what aptitudes claimant 
 
             would have for various occupations. Claimant scored in the upper 
 
             average level on this test. Johnson was working within 
 
             claimant's physical limitations set by Dr. Roberts in October of 
 
             1987 which were 50-pound lifting, no overhead work, no repetitive 
 
             bending, stooping or reaching and no driving more than one to two 
 
             hours per day and no operating of vibratory equipment. When 
 
             Johnson initially started working with claimant, the target area 
 
             was security guard. Claimant was unclear as to what other types 
 
             of positions he would like to target. Johnson would go out and 
 
             do job development on Harold's behalf while he was still at the 
 
             Skill Center. When he completed the Skill Center, Johnson would 
 
             meet with him and they would go together to various employers in 
 
             an attempt to line up interviews and get applications.
 
        
 
            In addition to seeking employment for claimant, Johnson made 
 
        recommendations for retraining. Based on his GAT-B scores and 
 
        his high average IQ level, Johnson felt that claimant could be 
 
        retrained in the area of automated manufacturing technology or 
 

 
        
 
 
 
 
 
        electronics. Johnson was instrumental in obtaining claimant's 
 
        job as a security guard with Midland Security. He met with the 
 
        personnel director of the company and discussed claimant's 
 
        condition. He advised him that he was attempting to locate 
 
        employment within claimant's limitation and arranged for an 
 
        interview. Johnson feels that claimant can handle the Midland 
 
        Security job on a full-time basis. In fact, he feels that 
 
        claimant is underemployed at Midland Security. He testified that 
 
        there are other security guard positions which would pay a better 
 
        salary than he is now receiving.
 
        
 
                            APPLICABLE LAW AND ANALYSIS
 
        
 
             Claimant has the burden of proving by a preponderance of the 
 
             evidence that he received an injury on January 2, 1986 which 
 
             arose out of and in the course of his employment. McDowell v. 
 
             Town of Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. 
 
             Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
             The supreme court of Iowa in Almquist v. Shenandoah 
 
             Nurseries, 218 Iowa 724, 254 N.W. 35 (1934) at 731-32, discussed 
 
             the definition of personal injury in workers' compensation cases 
 
             as follows:
 
        
 
             While a personal injury does not include an occupational 
 
             disease under the workmen's Compensation Act, yet an injury 
 
             to the health may be a personal injury [Citations omitted.] 
 
             Likewise a personal injury includes a disease resulting from 
 
             an injury....The result of changes in the human body 
 
             incident to the general processes of nature do not amount to 
 
             a personal injury. This must follow, even though such 
 
             natural change may come about because the life has been 
 
             devoted to labor and hard work. Such result of those 
 
             natural changes does not constitute a personal injury even 
 
             though the same brings about impairment of health or the 
 
             total or partial incapacity of the functions of the human 
 
             body.
 
             
 
             ....
 
             
 
             A personal injury, contemplated by the Workmen's 
 
             Compensation Law, obviously means an injury to the body, the 
 
             impairment of health, or a disease, not excluded by the act, 
 
             which comes about, not through the natural building up and 
 
             tearing down of the human body, but because of a traumatic 
 
             or other hurt or damage to the health or body of an 
 
             employee. [Citations omitted.] The injury to the human 
 
             body here contemplated must be something, whether an 
 
             accident or not, that acts extraneously to the natural 
 
             processes of nature and thereby impairs the health, 
 
             overcomes, injures, interrupts, or destroys some function of 
 
             the body, or otherwise damages or injures a part or all of 
 
             the body.
 
        
 
             Aggravation of a preexisting condition is one form of 
 
             compensable injury. While claimant is not entitled to 
 
             compensation for the results of a preexisting injury or disease, 
 
             the mere existence at the time of a subsequent injury is not a 
 
             defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 
 
             N.W.2nd 756 (1956). If the claimant had a preexisting condition 
 
             or disability that is aggravated, accelerated, worsened or 
 
             lighted up so that it results in disability, claimant is entitled 
 
             to recover. Nicks v Davenport Produce Co., 254 Iowa 130, 115 
 
             N.W.2d 812 (1962).
 
        
 
             According to Dr; Neiman, the preexisting spondylolisthesis 
 

 
        
 
 
 
 
 
             would not be disabling if it were not symptomatic. A 
 
             spondylolisthesis, as explained by Dr. Bickel, is most commonly 
 
             the result of a defect in the pars interarticularis which is 
 
             congenital or which develops in early childhood. The pars 
 
             interarticularis connects the vertebrae together and functions to 
 
             hold each vertebra in a position that is directly above or below 
 
             the adjacent vertebra. When the pars defect exists, the 
 
             vertebral body can slide forward to the extent that it impinges 
 
             upon nerve roots and causes pain (Bickel dep., pages 25 and 26). 
 
             Dr. Bickel went on to state that it is possible for a 
 
             spondylolisthesis to become symptomatic without any identifiable 
 
             trauma, incident or strain, but that usually some injury, heavy 
 
             lifting, over activity or other type of strain causes the 
 
             condition to become symptomatic (Bickel dep., pages 29-31). It 
 
             would seem reasonable to expect that in early childhood the pars 
 
             defect may exist but that the vertebral bodies may still be in 
 
             correct alignment. With the passage of years and engaging in 
 
             heavy activities, the vertebral body likely moves forward, a bit 
 
             at a time. It would further be expected that the greater the 
 
             amount of slippage becomes, the more likely it is that the 
 
             condition would be symptomatic. As indicated by Dr. Bickel, 
 
             symptomatology is usually a result of engaging in heavy exertion 
 
             of some type. In this case, it is likely that claimant's work as 
 
             a torch man, the sorting of metal so it could be lifted by the 
 
             crane, and other activities in which he engaged in his 20 years 
 
             of employment for the same employer all contributed to the 
 
             slippage and the preexisting condition becoming symptomatic. The 
 
             single identifiable event of January,2, 1986 is, however, a 
 
             clearly identifiable incident. By virtue of the very nature of 
 
             claimant's preexisting condition, it is quite probable that he 
 
             had experienced aggravations on a number of prior occasions. The 
 
             evidence seems to show that he did not seek medical treatment for 
 
             every aggravation. Apparently, the symptoms resolved on their 
 
             own without medical treatment. When the green stamp program is 
 
             considered, it is certainly understandable that employees would 
 
             initially deny injuries and refrain from seeking medical 
 
             treatment whenever possible. It is certainly reasonable and 
 
             understandable that claimant would have refrained from seeking 
 
             medical treatment until such time as it became apparent to him 
 
             that the aggravation was not going to resolve by itself. Turley 
 
             acknowledged that claimant did make complaint regarding his back, 
 
             although it was not particularly defined as an "injury." The 
 
             concept of injury is sufficiently complex that attorneys often 
 
             disagree as to its meaning. It is certainly unrealistic to 
 
             expect that claimant, with an eighth grade education, would have 
 
             realized the compensability of cumulative trauma injuries or 
 
             injury from aggravation of a preexisting condition, especially 
 
             when the evidence indicates that the adjustor, Gary Walljasper, 
 
             was not aware of the cumulative injury concept. What the record 
 
             in this case does clearly show is that Harold Bruce told Norman 
 
             Turley that his back hurt as a result of the work that he had 
 
             been doing. On January 14, 1986, claimant told Turley that he was 
 
             unable to continue doing that work, with the inference being that 
 
             it bothered his back too much. It is important that the work is 
 
             the type of work claimant had been capable of performing for 20 
 
             years. The onset of claimant's inability to perform what had been 
 
             his customary work is clearly sufficient to establish an injury. 
 
             In making this determination, it is considered that the claimant 
 
             likely had worked with pain and aggravations on a number of 
 
             occasions and that he was reluctant to seek medical treatment. 
 
             Having observed his appearance and demeanor and also having 
 
             considered all the other evidence in the case, it is determined 
 
             that he was highly motivated to be employed at the time of the 
 
             injury. (Current motivation levels are not necessarily the same 
 
             as those that existed at the time of injury.) It is therefore 
 
             determined that claimant has proved, by a preponderance of the 
 

 
        
 
 
 
 
 
             evidence, that he sustained an injury which arose out of and in 
 
             the course of his employment on January 2, 1986. The injury was 
 
             a result of heavy lifting performed while assisting repair of the 
 
             crane which he customarily operated. The injury was an 
 
             aggravation of a preexisting spondylolisthesis.
 
        
 
             The claimant has the burden of proving by a preponderance of 
 
             the evidence that the injury of January 2, 1986 is causally 
 
             related to the disability on which he now bases his claim. 
 
             Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). 
 
             Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A 
 
             possibility is insufficient; a probability is necessary. Burt v. 
 
             John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
             (1955). The question of causal connection is essentially within 
 
             the domain of expert testimony. Bradshaw v. Iowa Methodist 
 
             Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
        
 
            However, expert medical evidence must be considered with all 
 
        other evidence introduced bearing on the causal connection. 
 
        Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need 
 
        not be couched in definite, positive or unequivocal language. 
 
        Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, 
 
        the expert opinion may be accepted or rejected, in whole or in 
 
        part, by the trier of fact. Id. at 907. Further, the weight to 
 
        be given to such an opinion is for the finder of fact, and that 
 
        may be affected by the completeness of the premise given the 
 
        expert and other surrounding circumstances. Bodish, 257 Iowa 
 
        516, 133 N.W.2d 867. See also Musselman v. Central Telephone 
 
        Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
        
 
             In accordance with the evidence from Drs. Bickel and Neiman 
 
             and claimant's own testimony, it is determined that the injury of 
 
             January 2, 1986 was a substantial factor in causing what had 
 
             previously been an asymptomatic, (except for periodic 
 
             aggravations) nondisabling spondylolisthesis to become 
 
             symptomatic and disabling. The injury of January 2, 1986 is 
 
             therefore a proximate cause of the disability which is the basis 
 
             for this claim.
 
        
 
              Claimant seeks to recover compensation for healing period 
 
             under Iowa Code section 85.34(1). The parties stipulated that 
 
             any healing period entitlement would commence on January 13, 
 
             1986. While other evidence in the record could support a starting 
 
             date of January 14, the stipulation of the parties will not be 
 
             disturbed. It is determined that, in this case, the healing 
 
             period should end on November 8, 1987. Claimant's release from 
 
             Dr. Roberts to return to work was effective November 9, 1987 
 
             which then becomes the first day for payment of permanent partial 
 
             disability compensation. The last time Dr. Roberts had seen 
 
             claimant prior to assigning an impairment rating was on October 
 
             14, 1987, the same day as the release to return to work was 
 
             issued. The impairment rating assigned on December 1, 1987 was 
 
             based upon information that existed on October 14, 1987. Since 
 
             the release to return to work and impairment rating were made at 
 
             approximately that same period of time, it is apparent that Dr. 
 
             Roberts felt no further substantial improvement from the injury 
 
             was anticipated, even though some slight improvement might have 
 
             been possible.
 
        
 
             The employer is entitled to credit under Code section 
 
             85.38(2) for the Mutual Benefit Life Insurance Company payments 
 
             as shown in exhibit G.  The workers' compensation laws provide 
 
             for payments to the employee at the appropriate weekly benefit 
 
             amount. Accordingly, the credit is determined by the amounts 
 
             actually paid to the employee. No credit is allowable for 
 
             amounts paid to a governmental taxing authority. The credit in 
 

 
        
 
 
 
 
 
             this case for group disability income benefits is $3,862.52.
 
        
 
            As claimant has an impairment to the body as a whole, an 
 
        industrial disability has been sustained. Industrial disability 
 
        was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
        593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain 
 
        that the legislature intended the term 'disability' to mean 
 
        'industrial disability' or loss of earning capacity and not a 
 
        mere 'functional disability' to be computed in the terms of 
 
        percentages of the total physical and mental ability of a normal 
 
        man."
 
        
 
             Functional impairment is an element to be considered in 
 
             determining industrial disability which is the reduction of 
 
             earning capacity, but consideration must also be given to the 
 
             injured employee's age, education, qualifications, experience and 
 
             inability to engage in employment for which he is fitted. Olson 
 
             v. Goodyear Service Stores, 255 Iowa 1112, 1121 125 N.W.2d 251, 
 
             257 (1963).
 
        
 
            Industrial disability or loss of earning capacity is a 
 
        concept that is quite similar to impairment of earning capacity, 
 
        an element of damage in a tort case. Impairment of physical 
 
        capacity creates an inference of lessened earning capacity. The 
 
        basic element to be determined, however, is the reduction in 
 
        value of the general earning capacity of the person, rather than 
 
        the loss of wages or earnings in a specific occupation. 
 
        Post-injury earnings create a presumption of earning capacity. 
 
        The earnings are not synonymous with earning capacity and the 
 
        presumption may be rebutted by evidence showing the earnings to 
 
        be an unreliable indicator. Carradus v. Lange, 203 N.W.2d 565 
 
        (Iowa 1973); Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 
 
        516 (Iowa App. 1977) A.L.R.3d 143; Michael v. Harrison County, 
 
        34th Biennial Report, 218 (1979): 2 Larson Workmen's 
 
        Compensation Law, sections 57.21 and 57.31.
 
        
 
             Claimant seeks an award of permanent total disability and 
 
             relies upon the odd-lot doctrine as adopted by the Iowa Supreme 
 
             Court in the case Guyton v. Irving Jensen Co., 373 N.W.2d 101, 
 
             103 (Iowa 1985). Total disability is not utter and abject 
 
             helplessness. The ability to earn some wages creates a 
 
             presumption that a person has earning capacity commensurate with 
 
             the wages actually earned, but that presumption can be rebutted 
 
             by evidence which shows the actual earnings to be an unreliable 
 
             indicator of actual earning capacity. The test of permanent 
 
             total disability in a workers' compensation setting has long been 
 
             established and may be summarized as follows: When the 
 
             combination of the factors considered in determining industrial 
 
             disability precludes the worker from obtaining regular employment 
 
             in which the worker can earn a living for himself or herself, the 
 
             disability is total. Guyton v. Irving Jensen Co., 373 N.W.2d 
 
             101, 103 (Iowa 1985); McSpadden v. Big Ben Coal Co., 282 N.W.2d 
 
             181, 192 (Iowa 1980); Diederich v.Tri-City Railway, 219 Iowa 587, 
 
             594, 258 N.W. 899, 902 (1935).
 
        
 
            If claimant's actual earning capacity were only $50 per 
 
        week, he would be totally disabled since it is not possible to be 
 
        self-supporting with an income of.only $50 per week. All the 
 
        testing and other reemployment efforts which have been made since 
 
        the injury have indicated that claimant is of above average 
 
        intelligence. He appears to have the capacity for further 
 
        training. Regardless of whether his physical impairment is 
 
        placed at 15 percent, 20 percent or 25 percent of the body as a 
 
        whole, or even if a 25-pound lifting restriction is imposed, such 
 
        would not necessarily render him totally disabled. Claimant is 
 
        underemployed at this time. The fact that he may have the 
 

 
        
 
 
 
 
 
        capacity to engage in academic pursuits for retraining is of 
 
        little impact, however, if he does not have the economic 
 
        resources with which to do so. An employee's disability is to be 
 
        evaluated as it exists following recuperation from the injury. 
 
        An employer who does not contribute to the cost of higher 
 
        education cannot expect to have the degree of disability 
 
        determined as though the injured employee had successfully 
 
        completed a course of higher learning and obtained appropriate 
 
        employment. Stewart v. Crouse Cartage Co., file number 738644 
 
        (App. Decn., February 20, 1987). The employer's refusal to 
 
        reemploy an injured worker is strong evidence of lack of 
 
        employability. 2 Larson Workmen's Compensation Law, section 
 
        57.61. It is therefore determined that Harold Bruce has a 45 
 
        percent permanent partial disability when the same is evaluated 
 
        industrially as a result of the injury he sustained on January 2, 
 
        1986. Claimant's age when combined with his physical 
 
        restrictions and his lack of recent work experience in fields 
 
        other than salvage yard operations are particularly important in 
 
        the assessment made of this case. While the injury was an 
 
        aggravation of a preexisting condition, that condition was not 
 
        disabling in an industrial sense until the work aggravated it. It 
 
        is the symptoms themselves which are the source of the 
 
        disability, not the underlying condition. The mere existence of 
 
        an asymptomatic spondylolisthesis does not appear to warrant an 
 
        impairment rating under the Guides to the Evaluation of Permanent 
 
        Impairment referred to by Drs. Neiman and Roberts.
 
        
 
            The physical restrictions which have been imposed were 
 
        imposed as a result of the symptoms caused by the injury. They 
 
        were not imposed prior to the injury even though Dr. Bickel was 
 
        clearly aware that the spondylolisthesis existed. Those 
 
        restrictions have a major impact on claimant's access to portions 
 
        of the job market which would otherwise be available to him 
 
        absent those restrictions.
 
        
 
             The only issue with regard to the claimed benefits under 
 
             section 85.27 was liability. Inasmuch as liability has been 
 
             determined to exist, defendants are responsible for payment of 
 
             the claimed medical expenses in the total amount of $29,272.48 
 
             less credit under section 85.38(2) for the amounts paid by Blue 
 
             Cross/Blue Shield in the sum of $27,677.40. Defendants shall 
 
             reimburse claimant for the amounts which claimant has paid 
 
             totalling $1,595.08 and shall pay the remaining unpaid balances 
 
             owing to the medical service providers. Defendants shall also 
 
             pay claimant $114.24 for transportation expenses. All the 
 
             foregoing section 85.27 benefits are determined in accordance 
 
             with the attachments to the prehearing report.
 
        
 
            Claimant also seeks to recover costs. The items which 
 
        claimant requested to have assessed are included as an attachment 
 
        to the prehearing report. Items 2, 3, 9 and 10 are all court 
 
        reporter fees for depositions. As such, they are properly 
 
        assessed. Item 1, a consultation fee with Dr. Bickel, is not 
 
        recoverable. Item 4, Dr. Neiman's deposition fee is limited to 
 
        $150.00. Item 7, Dr. Bickel's report in the amount of $42.00 is 
 
        fully recoverable. The other items sought, namely, items 5, 6 
 
        and 8 which are copy fees for records are not recoverable. The 
 
        costs which claimant may recover are therefore as follows:
 
        
 
            Court reporter fee, Dr. Neiman                    $ 85.40
 
            Court reporter fee, Dr. Bickel                        93.60
 
            Deposition fee, Dr. Neiman                        150.00
 
            Report, Dr. Bickel                                42.00
 
            Court reporter, claimant deposition               68.40
 
            Court reporter, Turley deposition                 121.00
 
            Total                                             $560.40
 

 
        
 
 
 
 
 
        
 
             The penalty which can be assessed under the fourth 
 
             unnumbered paragraph of section 86.13 requires that there have 
 
             been a denial of benefits or a delay in commencement of benefits 
 
             without reasonable or probable cause or excuse. The Iowa Supreme 
 
             Court has not yet ruled upon how that standard is to be 
 
             determined, but the Wisconsin Court of Appeals has addressed the 
 
             issue in the case Kimberly-Clark Corporation v. Labor and 
 
             Industry Review Commission, 405 N.W.2d 685 (Wisconsin 1987). The 
 
             Wisconsin statute authorizes a penalty to be assessed for failure 
 
             to pay compensation when the claim is not "fairly debatable." 
 
             The Wisconsin Court had permitted an employee to maintain a tort 
 
             action for bad faith denial of workers' compensation benefits. 
 
             Coleman v. American Universal Insurance Co., 273 N.W.2d 220 
 
             (Wisconsin 1979).
 
        
 
             The Wisconsin Court, in a case dealing with bad faith on the 
 
             part of an insurer, stated that there must be some reasonable 
 
             basis, whether it concerns a question of fact or a question of 
 
             law, which would lead a reasonable insurer to conclude that it 
 
             need not make payment on the claim. Anderson v. Continental 
 
             Insurance Company, 271 N.W.2d 368 (Wisconsin 1978). The 
 
             Wisconsin Court ruled that the lack of a reasonable basis to deny 
 
             a claim may be inferred from the insurer's or employer's conduct 
 
             where there is a reckless disregard of a lack of a reasonable 
 
             basis for denial or a reckless indifference to the facts or to 
 
             proof submitted by the insured. The Iowa Supreme Court recently 
 
             recognized the first-party bad faith failure to settle tort. 
 
             Dolan v. Aid Insurance Co., 431 N.W.2d 790 (Iowa 1988).
 
        
 
            The Iowa Court adopted the Wisconsin test for the bad faith 
 
        tort from Anderson v. Continental Ins. Co., 85 Wis.2d 675, 
 
        691-92, 217 N.W.2d 368, 376 (1978). When a claim is "fairly 
 
        debatable," the insurer is entitled to debate it, whether the 
 
        debate concerns a matter of fact or law. To show a claim for bad 
 
        faith, a plaintiff must show the absence of a reasonable basis 
 
        for denying benefits of the policy and defendant's knowledge or 
 
        reckless disregard of the lack of a reasonable basis for denying 
 
        the claim. Dolan also agrees with Anderson in considering whether 
 
        the claim was properly investigated and whether the    results 
 
        of the investigation were subjected to a reasonable evaluation 
 
        and review as part of the fairly debatable determination.
 
        
 
            The test established by the Iowa and Wisconsin Courts when 
 
        dealing with the first party bad faith tort seems well reasoned 
 
        and is adopted as the standard to be used when considering claims 
 
        for additional compensation under the fourth unnumbered paragraph 
 
        of Iowa Code section 86.13.
 
        
 
             In this case, every physician who was asked attributed the 
 
             injury to an aggravation of a preexisting condition. Each 
 
             physician who was asked expressed the opinion that the condition 
 
             was a work-related injury. While there may have been some 
 
             uncertainty with regard to the extent of claimant's normal daily 
 
             lifting, the event of January 2, 1986 is well established in the 
 
             evidence. It is not directly refuted. The fact that adjustor 
 
             Walljasper was unaware that injuries which result from cumulative 
 
             trauma were covered by workers' compensation is certainly no 
 
             justification. When an insurance carrier places a person in the 
 
             position of an adjustor, the carrier has an obligation to train 
 
             the adjustor. This case is not, however, so much a matter of 
 
             cumulative trauma as it is one where the severe symptoms did not 
 
             have their onset until after the end of the work day on January 
 
             2, 1986. Both Drs. Neiman and Bickel agreed that increasing 
 
             symptoms subsequent to the actual traumatic event is not unusual. 
 
             What is certain from the record is that on January 2, 1986, 
 

 
        
 
 
 
 
 
             Harold Bruce told Norman Turley that his back hurt as a result of 
 
             the work which he had been performing. The fact that Bruce did 
 
             not have the legal expertise in order to realize that he should 
 
             have characterized the condition as "an injury" is not sufficient 
 
             to justify defendants' refusal to pay. It is therefore 
 
             determined that the failure to pay was unreasonable and that 
 
             additional compensation should be awarded under the fourth 
 
             unnumbered paragraph of Code section 86.13.
 
        
 
             The result of unreasonable denial of compensation is that 
 
             the injured employee is forced to incur the expenses of 
 
             litigation. These expenses normally approximately one-third of 
 
             the amount recovered. When the failure to pay is unreasonable, 
 
             the employee should not be required to bear the expense of 
 
             litigation which is needed in order to obtain the amounts which 
 
             were unreasonably denied. Since litigation expenses and attorney 
 
             fees are normally approximately one-third of the recovery, the 
 
             only way in which to insulate the injured employee from the 
 
             defendants' unreasonable conduct is to award the full 50 percent 
 
             penalty authorized by the statute. Accordingly, a penalty of 50 
 
             percent will be assessed to all amounts which were unreasonably 
 
             denied in this case.
 
        
 
            The duty of an insurance carrier is to investigate and make 
 
        a reasonable assessment of the case. The failure to pay healing 
 
        period compensation is determined to have been totally 
 
        unreasonable. When the disability is evaluated industrially, the 
 
        range of what may be considered to be reasonable is normally more 
 
        broad than the range of reasonable opinions which may apply to 
 
        the end of a healing period. In this case, it could have 
 
        reasonably been argued that claimant had some preexisting 
 
        disability by virtue of his cervical spine condition and the 
 
        preexisting spondylolisthesis. (It should be noted that the 
 
        disability from the spinal condition is not included in the 45 
 
        percent permanent partial disability award made herein.) There 
 
        is simply no justification, however, for defendants' failure to 
 
        pay at least the 10 percent impairment rating which had initially 
 
        been made by Dr. Roberts. The 50 percent penalty will therefore 
 
        be applied to the entire healing period and also to 50 weeks of 
 
        permanent partial disability compensation. The healing period 
 
        constitutes 95 weeks of benefits. The total to which the penalty 
 
        applies is therefore 145 weeks.
 
        
 
             The payment of benefits under a nonoccupational group plan 
 
             does not avoid the penalty for unreasonable denial of weekly 
 
             compensation payments.
 
        
 
                                 FINDINGS OF FACT
 
             
 
             1. On January 2, 1986, Harold Bruce was a resident of the 
 
             state of Iowa employed by Alter Metal Company, Inc., E. Cohn & 
 
             Sons Division, at Cedar Rapids, Iowa.
 
        
 
            2. Bruce was injured on January 2, 1986 while lifting 
 
        components of the crane which he operated for the employer, which 
 
        components weigh approximately 200 pounds.
 
        
 
             3. The injury was an aggravation of a preexisting 
 
             spondylolisthesis.
 
        
 
            4. The injury caused the spondylolisthesis condition to 
 
        become persistently symptomatic and disabling whereas in the past 
 
        it had only been intermittently symptomatic and minimally, if at 
 
        all, disabling.
 
        
 
            5. Following the injury, Bruce was medically incapable of 
 

 
        
 
 
 
 
 
        performing work in employment substantially similar to that he 
 
        performed at the time of injury from January 13, 1986 as 
 
        stipulated by the parties until November 9, 1987, the date when 
 
        it was medically indicated that further significant improvement 
 
        from the injury was not anticipated and claimant was released to 
 
        return to employment.
 
        
 
            6. Claimant's description of the events that occurred on 
 
        January 2, 1986 and also with regard to the onset of his symptoms 
 
        and activities up until the time he first saw Dr. Bickel on or 
 
        about January 14, 1986 are accepted as being correct.
 
        
 
            7. The impairment rating and physical restrictions imposed 
 
        by Dr. Roberts in December, 1988 are accepted as being 
 
        controlling.
 
        
 
             8. Claimant is of high average intelligence, but is limited 
 
             by a work history that is almost exclusively in the salvage 
 
             business. His formal education is limited to the eighth grade. 
 
             The communication skills which claimant demonstrated at hearing 
 
             were below average.
 
        
 
            9. Despite the fact that claimant is of high average 
 
        intelligence, he is not motivated at the present time to enter 
 
        into substantial retraining or a new career field.
 
        
 
             10. Claimant's earning capacity is substantially higher than 
 
             the amount which his current level of earnings would indicate.
 
        
 
             11. Harold Bruce sustained a 45 percent loss of his earning 
 
             capacity as a result of the injuries he sustained on January 2, 
 
             1986.
 
        
 
           12. It was unreasonable for defendants to have denied the 
 
        compensability of claimant's claim, to have denied payment of 
 
        weekly compensation for healing period, and to have denied 50 
 
        weeks of permanent partial disability compensation.
 
                                                
 
                                 CONCLUSIONS OF LAW
 
        
 
             1. This agency has jurisdiction of the subject matter of 
 
             this proceeding and its parties.
 
        
 
            2. Harold Bruce sustained an injury to his low back on 
 
        January 2, 1986 which arose out of and in the course of his 
 
        employment with Alter Metal Company, Inc., E. Cohn & Sons 
 
        Division.
 
        
 
            3. The, injury was a proximate cause of the medical 
 
        treatment which claimant sustained, the disability that ensued 
 
        following the injury until claimant's release to return to work, 
 
        and of the permanent impairment and physical restrictions which 
 
        have been imposed by Dr. Roberts.
 
        
 
            4. Claimant is entitled to recover 95 weeks of healing 
 
        period running from January 13, 1986 through November 8, 1987 
 
        under the provisions of Code section 85.34(1).
 
        
 
            5 Claimant is entitled to recover 225 weeks of compensation 
 
        for permanent partial disability under the provisions of Code 
 
        section 85.34(2)(u).
 
        
 
            6. Claimant is entitled to recover $1,595.08 as 
 
        reimbursement for medical expenses under the provisions of Code 
 
        section 85.27 after the employer is given credit under section 
 
        85.38(2) for amounts paid by its group insurance carrier.
 

 
        
 
 
 
 
 
        
 
            7. Claimant is entitled to recover 145 weeks of additional 
 
        compensation under the fourth unnumbered paragraph of Code 
 
        section 86.13 at the rate of $108.45 per week payable commencing 
 
        January 13, 1986.
 
        
 
            8. Claimant is entitled to recover mileage expenses in the 
 
        amount of $114.24.
 
        
 
             9. Claimant has,not established a prima facie case of total 
 
             disability.
 
        
 
                                      ORDER
 
        
 
             IT IS THEREFORE ORDERED that defendants pay claimant 
 
             ninety-five (95) weeks of compensation for healing period at the 
 
             stipulated rate of two hundred sixteen and 90/100 dollars 
 
             ($216.90) per week payable commencing January 13, 1986, less 
 
             credit in the total amount of three thousand eight hundred 
 
             sixty-two and 52/100 dollars ($3,862.52) for group disability 
 
             income benefits.
 
        
 
             IT IS FURTHER ORDERED that defendants pay claimant two 
 
             hundred twenty-five (225) weeks of compensation for permanent 
 
             partial disability at the stipulated rate of two hundred sixteen 
 
             and 90/100 dollars ($216.90) per week payable commencing November 
 
             9, 1987.
 
        
 
             IT IS FURTHER ORDERED that all healing period compensation 
 
             and all permanent partial disability compensation which is 
 
             accrued, but unpaid shall be paid in a lump sum together with 
 
             interest pursuant to Iowa Code section 85.30 computed from the 
 
             date each payment came due until the date of actual payment.
 
        
 
            IT IS FURTHER ORDERED that defendants pay claimant one 
 
        hundred forty-five (145) weeks of additional compensation under 
 
        the provisions of the fourth unnumbered paragraph of Iowa Code 
 
        section 86.13 at the rate of one hundred eight and 45/100 dollars 
 
        ($108.45) per week. The total amount is fifteen thousand seven 
 
        hundred twenty-five and 25/100 dollars ($15,725.25) payable in 
 
        full on the date of this decision.
 
        
 
             IT IS FURTHER ORDERED that defendants pay claimant one 
 
             thousand five hundred ninety-five and 08/100 dollars ($1,595.08) 
 
             for reimbursement of medical expenses and one hundred fourteen 
 
             and 24/100 dollars ($114.24) for transportation expenses under 
 
             the provisions of Iowa Code section 85.27.
 
        
 
            IT IS FURTHER ORDERED that defendants pay the costs of this 
 
        action in the amount of five hundred sixty and 40/100 dollars 
 
        (560.40).
 
        
 
            IT IS FURTHER ORDERED that defendants file claim activity 
 
        reports as requested by this agency pursuant to Division of 
 
        Industrial Services Rule 343-3.1.
 
        
 
            Signed and filed this 18th day of August, 1989.
 
        
 
        
 
        
 
        
 
        
 
                                         MICHAEL G. TRIER
 
                                         DEPUTY INDUSTRIAL COMMISSIONER 
 
        
 
        Copies To:
 

 
        
 
 
 
 
 
        
 
        Mr. Thomas M. Wertz
 
        Attorney at Law 
 
        4089 21st Avenue SW
 
        Suite 114
 
        Cedar Rapids, Iowa 52404
 
        
 
        Mr. Ralph W. Gearhart
 
        Attorney at Law
 
        500 MNB Building
 
        P.O. Box 2107
 
        Cedar Rapids, Iowa 52406-2107
 
        
 
        
 
        
 
        
 
 
        
 
 
 
 
 
        
 
        
 
                                            1402.20, 1402.30, 1701
 
                                            1802, 1803, 2101, 2206
 
                                            4000.2, 4100
 
                                            Filed August 18, 1989
 
                                            MICHAEL G. TRIER
 
        
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
        
 
        
 
        HAROLD L. BRUCE,
 
        
 
            Claimant,
 
                                                          File No. 
 
        820695
 
        vs.
 
                                                          A R B I T R A 
 
        T I O N
 
        ALTER METAL CO., INC.,
 
        E. COHN & SONS DIVISION,                          D E C I S I O 
 
        N
 
        
 
            Employer,
 
        
 
        and
 
        
 
        LIBERTY MUTUAL INSURANCE,
 
        
 
             Insurance Carrier,
 
             Defendants.
 
             
 
             
 
        1402.20, 1402.30, 1802, 1803, 2206
 
        
 
             Claimant worked at a salvage yard as a crane operator. Much 
 
             of the work was performed while sitting operating the crane, but 
 
             it also involved occasional heavy lifting and exertion. On one 
 
             such occasion, claimant experienced increased symptoms in his 
 
             back. The symptoms worsened over the following days and he 
 
             eventually sought medical treatment. The treating physician 
 
             determined that his preexisting spondylolisthesis had been 
 
             aggravated. Claimant eventually underwent an extended course of 
 
             treatment which involved a failed fusion surgery followed by a 
 
             second successful fusion surgery. The treating orthopaedic 
 
             surgeon's final assessment of the case was a 15 percent permanent 
 
             impairment and restrictions of 30 pounds with avoidance of 
 
             repetitive bending, twisting and lifting. Claimant awarded 45 
 
             percent permanent partial disability and healing period of 95 
 
             weeks running to the date the doctor released claimant to return 
 
             to work.
 
        
 
        2101, 4000.2
 
        
 
             Where all physicians found a causal connection between the 
 
             employment and the injury as an aggravation of a preexisting 
 
             condition, the defendants' denial of the claim was found to be 
 
             unreasonable. Penalty benefits were awarded for the entire 
 
             healing period and to the extent of 50 weeks of permanent partial 
 
             disability.
 
        
 
        4100
 
        
 

 
        
 
 
 
 
 
             Claimant's part-time employment was found to not be 
 
             representative of his earning capacity. The odd-lot doctrine was 
 
             not applied as a prima facie showing of total disability had not 
 
             been made.
 
        
 
        1701, 4000.2
 
        
 
             Section 85.38(2) credit held to be for the amount actually 
 
             paid to the claimant. (No credit for amounts paid to taxing 
 
             authorities.)
 
        
 
            Payments under section 85.38(2) held not to avoid section 
 
        86.13 penalty.
 
        
 
        
 
 
            
 
            
 
            
 
            
 
            
 
                       
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            DAVID L. MARTIN,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 820743
 
            WANG LABORATORIES, INC.,      :
 
                                          :  A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            LIBERTY MUTUAL INSURANCE,     :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in arbitration brought by David 
 
            Martin, claimant, against Wang Laboratories, employer, 
 
            hereinafter referred to as Wang, and Liberty Mutual 
 
            Insurance Company, insurance carrier, defendants, for 
 
            workers' compensation benefits as a result of an alleged 
 
            injury on April 7, 1986.   On August 19, 1992, a hearing was 
 
            held on claimant's petition and the matter was considered 
 
            fully submitted at the close of this hearing.
 
            
 
                 The parties have submitted a prehearing report of 
 
            contested issues and stipulations which was approved and 
 
            accepted as a part of the record of this case at the time of 
 
            hearing.  The oral testimony and written exhibits received 
 
            during the hearing are set forth in the hearing transcript.  
 
            
 
                 According to the prehearing report, the parties have 
 
            stipulated to the following matters:
 
            
 
                 1.  On April 7, 1986, claimant received an injury 
 
            arising out of and in the course of employment with Wang.
 
            
 
                 2. The injury was a cause of temporary total 
 
            disability, the extent of which is in dispute.  It was 
 
            agreed that claimant is entitled to benefits from April 8, 
 
            1986 through April 20, 1986; from May 12, 1986 through May 
 
            26, 1986; and, from July 6, 1987 through August 2, 1987.   
 
            Claimant agreed to a credit towards any permanency award for 
 
            an overpayment from May 27, 1986 through June 8, 1986. In 
 
            dispute is entitlement to weekly benefits from December,  
 
            27, 1988 through September 11, 1989, as well as entitlement 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            to permanent benefits. 
 
                 
 
                 3.  At the time of injury, claimant's gross rate of 
 
            weekly compensation was $510; he was married; and, he was 
 
            entitled to four exemptions.  Therefore, claimant's weekly 
 
            rate of compensation is $313.94 according to the Industrial 
 
            Commissioner's published rate booklet for this injury.
 
            
 
                 4.  Medical benefits are no longer in dispute.
 
            
 
                                        ISSUE
 
            
 
                 The only issue submitted by the parties for 
 
            determination in this proceeding is the extent of claimant's 
 
            entitlement to disability benefits.
 
                 
 
                                    FINDINGS OF FACT
 
            
 
                 Having heard the testimony and considered all of the 
 
            evidence, the deputy industrial commissioner finds as 
 
            follows:
 
            
 
                 A credibility finding is necessary to this decision as 
 
            defendants placed claimant's credibility at issue during 
 
            cross-examination as to the nature and extent of this injury 
 
            as well as an alleged subsequent injury in the state of 
 
            Illinois in December 1988.
 
            
 
                 Claimant began working as a field service representa
 
            tive for Wang after his military service with the U.S. Navy 
 
            in 1979. This employment continued until September 9, 1989, 
 
            when he was terminated under a Wang policy to terminally ill 
 
            or injured workers who are on medical leave for over six 
 
            months.  Claimant's duties involved the diagnosis and repair 
 
            of computer systems at the customer's site, preventative 
 
            maintenance and limited software support.  This job required 
 
            extensive traveling and the lifting of weights from 15 
 
            pounds to several hundred pounds.  The heavy equipment 
 
            generally was on rollers but still hard to move.  Claimant 
 
            was routinely required to bend, squat and crawl under 
 
            equipment to perform his job.  A great deal of flexibility 
 
            was needed.  At the time of the injury herein, claimant 
 
            resided in Mount Vernon, Iowa, and worked in the Cedar 
 
            Rapids and Iowa City, Iowa, metro areas. Claimant's 
 
            testimony on all of these matters was credible and 
 
            unrebutted.    
 
            
 
                 On or about April 7, 1986, claimant injured his low 
 
            back at a Cedar Rapids location while pulling on heavy 
 
            computer equipment.  Claimant describes the injury as a 
 
            popping sensation in the low back.  After squatting to work 
 
            on the equipment, he had to pull himself up and noticed pain 
 
            in the low back and both legs extending into the feet.   
 
            Claimant then sought and received medical treatment from 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            Yang Ahn, M.D. 
 
            
 
                 Claimant had been treated in the past for back pain on 
 
            two occasions in 1983 by Dr. Ahn.  This treatment involved 
 
            acupuncture.  Claimant stated that he recovered from these 
 
            injuries and treatment ended.  Dr. Ahn's records verify this 
 
            testimony.  
 
            
 
                 As before, claimant received acupuncture treatment from 
 
            Dr. Ahn after the April 7, 1986 injury. Claimant initially 
 
            was off work only a few days and was returned to light duty 
 
            by Dr. Ahn with a gradual increase to full duty.  However, 
 
            he again experienced pain from the work and was off for a 
 
            couple of weeks in May 1986. At this time, an orthopedist, 
 
            William Robb, M.D., diagnosed a herniated lumbar disc but 
 
            recommended only continued conservative care.  Claimant 
 
            worked continuously the rest of 1986 and the first half of 
 
            1987.  Claimant stated that he never recovered and continued 
 
            to experience low back and leg pain. In October 1986, he 
 
            transferred to another Wang service representative job 
 
            located in Quincy, Illinois, performing much of the same 
 
            work as before and he moved his residence to Missouri.  
 
            
 
                 After he moved, claimant's care was transferred to 
 
            various physicians in the area of claimant's residence after 
 
            another onset of pain in July 1987.  Claimant was again 
 
            taken off work.  His physicians at that time uniformly 
 
            diagnosed  a herniated disc with chronic low back strain but 
 
            recommended only conservative care, such as physical therapy 
 
            and medications in 1987.  The decision not to surgically 
 
            treat the herniated disc at that time was also concurred in 
 
            by Theodore Sandow, M.D., an orthopaedic surgeon in Kansas 
 
            City, Missouri.  The only formal restriction placed upon 
 
            claimant's work activity when he returned to work in August 
 
            1987 was by Dale Darnell M.D., who stated that claimant 
 
            should restrict the amount of driving by stopping frequently 
 
            to walk around.  Claimant testified that he was told to 
 
            simply take it easy including restricted lifting. This 
 
            testimony is credible as some sort of restriction on 
 
            activity would be consistent with a 16-month history of 
 
            chronic back pain.  
 
            
 
                 Despite his return to work in late summer 1987, 
 
            claimant stated that he improved somewhat but still 
 
            occasionally experienced low back and leg pain with long 
 
            periods of driving, his normal repair and maintenance 
 
            activity and the occasional carrying of tools and equipment.  
 
            He stated that he routinely rested after arriving home each 
 
            work day by lying on the floor for an hour and that he 
 
            rested in bed on weekends.  However, he continued working 
 
            without active medical treatment other than medications 
 
            until December 1988.  At this time, claimant again 
 
            experienced the onset of severe back and leg pain and later 
 
            on in the month he returned to Dr. Sandow.  Claimant's 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            condition was viewed by his physicians as much worse than 
 
            before. A more pronounced herniation was found from image 
 
            testing.  
 
            
 
                 Claimant was taken off work and surgery was performed 
 
            by Dr. Sandow on December 29, 1988.  Dr. Sandow released 
 
            claimant from his care on May 12, 1989, with restrictions 
 
            against lifting no more than 25-35 pounds and no prolonged 
 
            sitting or driving for more than two hours at a time or more 
 
            than four hours per day.  Dr. Sandow opines that claimant 
 
            suffers from a 25 percent impairment to the body as a whole, 
 
            5-10 percent of which is attributable to the April 7, 1986 
 
            injury.
 
            
 
                 While he was off work beginning on December 27, 1988, 
 
            claimant was terminated as discussed above.  Since that 
 
            time, claimant has worked as a detassler for four weeks and 
 
            as a part-time bartender while attending a technical trade 
 
            school.  Since March 1991, he has been working full time as 
 
            a parts/counter person for a motorcycle shop.  His pay is 
 
            approximately $7.25 per hour or $290 per week after 
 
            including his hourly rate and commissions.   Claimant earned 
 
            over $500 per week at Wang.  
 
            
 
                 At hearing, claimant down played the significance of a 
 
            report of injury to Wang and Dr. Sandow in the first part of 
 
            December 1992 which had indicated that the December pain was 
 
            precipitated by an incident in which claimant was lifting a 
 
            heavy power supply unit. It is obvious that claimant felt 
 
            this event significant at the time, as he not only filed an 
 
            injury report, but a formal workers' compensation claim for 
 
            an injury on December 10, 1988, before the Illinois 
 
            Industrial Commission.  This claim resulted in a settlement 
 
            in which claimant received approximately $43,000, after 
 
            expenses, in return for a full release of Illinois workers' 
 
            compensation claims against Wang as insured by Aetna 
 
            Insurance Company arising from any claim of injury on 
 
            December 10, 1988.  The undersigned discounts the 
 
            significance of a discrepancy between the Illinois first 
 
            report for this injury which gave a date of December 1, 1988 
 
            rather than December 10, 1988.
 
            
 
                 Claimant has shown that the work injury of April 7, 
 
            1986, was a cause of a 5-10 percent permanent impairment to 
 
            the body as a whole from chronic low back and leg pain and 
 
            restricted activity. The views of Dr. Sandow are 
 
            uncontroverted.  Claimant was told by his physicians in 1987 
 
            that he had to restrict his physical activity to prevent 
 
            recurrences of back pain.   
 
            
 
                 However, claimant failed to show that the work injury  
 
            of April 7, 1986, was a proximate cause of the December 1988 
 
            injury upon which the Illinois claim and settlement was 
 
            based.  Certainly, the area of injury was the same and 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            involved a herniated disc but no physician in this case has 
 
            opined that the worsening of  the disc condition in December 
 
            1988 was due to or was a consequence of the original April 
 
            7, 1986 injury.  Absent clear supportive medical opinion, 
 
            any finding of causal connection between the two injuries 
 
            would be speculation.  The only permanency opinion in the 
 
            record is from Dr. Sandow who attributes only part of the 
 
            total impairment he found to the original injury.  
 
            Therefore, any disability caused by the December 1988 injury 
 
            is not causally connected to the original 1986 injury.
 
            
 
                 As claimant has shown that the work injury was a cause 
 
            of permanent body as a whole impairment, he is entitled to 
 
            an industrial disability or loss of earning capacity 
 
            evaluation.  However, much of claimant's current loss of 
 
            earning capacity arises from the December 1988 injury not 
 
            the original 1986 injury.  Most of the 25 percent impairment 
 
            found by Dr. Sandow was not the result of the original 
 
            injury.  Surgery was not performed until after the 1988 
 
            injury.  Claimant did not receive formal, detailed work 
 
            restrictions against lifting and sitting until after his 
 
            1988 injury and surgery.  Claimant did not lose his job or 
 
            suffer a reduction in earnings until he was terminated while 
 
            on medical leave from the 1988 injury.   Claimant's absence 
 
            from work from December 27, 1988 through September 11, 1990, 
 
            was not shown to be the result of the April 7, 1986 injury.  
 
            The medical records clearly indicate the onset of pain after 
 
            the December 1988 incident at work to be the cause of this 
 
            absence from work.
 
            
 
                 On the other hand, claimant had chronic pain after the 
 
            April 7, 1986 injury, but before December 1988 which 
 
            required absences from work and medical attention during 
 
            flare-ups.  Claimant was advised to restrict his lifting and 
 
            driving during this time, both of which were required tasks 
 
            in his job.  
 
            
 
                 At the time of the work injury of April 1986, claimant 
 
            had some post-high school education consisting of three 
 
            semesters at Northeast Missouri State College and 
 
            specialized in computer and electronics training at Wang and 
 
            while he was in the Navy.  Claimant was relatively young at 
 
            the time at age 31. Claimant appeared suitable for 
 
            retraining, but his family responsibilities appeared to 
 
            limit his potential for a prolonged and expensive retraining 
 
            effort.  However, prior to the 1988 injury, claimant was 
 
            able to continue working despite this disability and 
 
            retraining was not necessary.
 
                 
 
                 From examination of all of the factors of industrial 
 
            disability, it is found that the work injury of April 7, 
 
            1986 was a cause of a mild 10 percent loss of earning 
 
            capacity prior to the December 1988 injury. His current 
 
            industrial disability appears much greater but this is 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            largely due to the December 1988 injury, not the earlier 
 
            April 7, 1986 injury.  
 
            
 
                                  CONCLUSIONS OF LAW
 
            
 
                 I.  Defendants argue that the Illinois case settlement 
 
            precludes a claim in Iowa for the same injury. This is not 
 
            the case.  It is well settled that the acceptance of 
 
            benefits in another state does not preclude an award of 
 
            benefits under Iowa law as long as the award is reduced by 
 
            the amount of benefits received in the other state.  George 
 
            H. Wentz, Inc. v. Sabasta, 337 N.W.2d 495, 498-99 (Iowa 
 
            1983).  
 
            
 
                 If an employee suffers a compensable injury and 
 
            thereafter suffers another injury and further disability, in 
 
            a claim based upon only the first injury, it must be shown 
 
            that the second injury and further disability is the natural 
 
            or proximate result of the first injury.  See, Lawyer & 
 
            Higgs, Iowa Workers' Compensation--Law and Practice (2nd 
 
            ed.), section 4-4, pp. 26-28 and cases cited therein.  In 
 
            the case sub judice, claimant failed to make this showing.  
 
            The second injury was significant and there was no medical 
 
            opinion to support any finding that the larger herniation 
 
            found in 1988 was a natural and proximate result of the 
 
            first herniation found after the first injury.
 
            
 
                 II.  As the claimant has shown that the work injury was 
 
            a cause 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.  
 
            
 
                 Examination of several factors determines the extent to 
 
            which a work injury and a resulting medical condition caused 
 
            an industrial disability.  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 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            for which the employee is fitted.  Loss of earnings caused 
 
            by a job transfer for reasons related to the injury is also 
 
            relevant.  See Peterson v. Truck Haven Cafe, Inc., vol. 1, 
 
            no. 3 State of Iowa Industrial Commissioner Decisions 654, 
 
            658 (App. Dec. February 28, 1985).
 
            
 
                 A showing that claimant had no loss of actual earnings 
 
            does not preclude a find of industrial disability. See 
 
            Michael v. Harrison County, 34 Biennial Rep., Ia Ind. 
 
            Comm'r 218, 220 (App Dec 1979).  Bearce v. FMC Corp., 465 
 
            N.W.2d 531 (Iowa 1991) only held that continued employment 
 
            with no loss of earnings is significant evidence that should 
 
            not be overlooked in measuring loss of earning capacity.
 
            
 
                 In the case sub judice, it was found that claimant 
 
            suffered a 10 percent loss of his earning capacity as a 
 
            result of the work injury of April 7, 1986.  Such a finding 
 
            entitles claimant to 50 weeks of permanent partial 
 
            disability benefits as a matter of law under Iowa Code 
 
            section 85.34(2)(u) which is 10 percent of 500 weeks, the 
 
            maximum allowable number of weeks for an injury to the body 
 
            as a whole in that subsection.  As claimant last returned to 
 
            work from disability caused by the April 7, 1986 injury on 
 
            August 2, 1987, permanency benefits will be awarded from 
 
            that date. 
 
            
 
                                       ORDER
 
            
 
                 1.  Defendants shall pay to claimant fifty (50) weeks 
 
            of permanent partial disability benefits at a rate of three 
 
            hundred thirteen and 94/100 dollars ($313.94) per week from 
 
            August 2, 1987, less the stipulated credit for overpayment 
 
            of healing period benefits from May 27, 1986 through June 8, 
 
            1986.
 
            
 
                 2.  Defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against this award for all 
 
            benefits previously paid.  
 
            
 
                 3.  Defendants shall pay interest on weekly benefits 
 
            awarded herein as set forth in Iowa Code section 85.30. 
 
            
 
                 4.  Defendants shall pay the costs of this action 
 
            pursuant to rule 343 IAC 4.33, including reimbursement to 
 
            claimant for any filing fee paid in this matter.
 
            
 
                 5.  Defendants shall file activity reports on the 
 
            payment of this award as requested by this agency pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of September, 1992.
 
            
 
            
 
            
 
            
 

 
            
 
            Page   8
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          LARRY P. WALSHIRE
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. William Bauer
 
            Attorney at Law
 
            PO Box 517
 
            Burlington, Iowa  52601
 
            
 
            Mr. Greg A. Egbers
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            111 E 3rd St
 
            Davenport, Iowa  52801-1596
 
            
 
 
            
 
            
 
            
 
            
 
            
 
                                          1800
 
                                          Filed September 29, 1992
 
                                          Larry P. Walshire
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            DAVID L. MARTIN,    
 
                      
 
                 Claimant, 
 
                      
 
            vs.       
 
                                                File No. 820743
 
            WANG LABORATORIES, INC., 
 
                                            A R B I T R A T I O N
 
                 Employer, 
 
                                               D E C I S I O N
 
            and       
 
                      
 
            LIBERTY MUTUAL INSURANCE,     
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            1800   
 
            It was held that a prior settlement of an Illinois workers' 
 
            compensation claim does not preclude assertion of an Iowa 
 
            claim as long as you provide credit for amounts received 
 
            form the Illinois claim.  In this case,  the claim was based 
 
            upon an original Iowa injury seeking benefits largely due to 
 
            a subsequent injury and disability in the state of Illinois.   
 
            Benefits caused by any second Illinois injury were denied  
 
            because claimant failed to shown that the Illinois injury 
 
            was proximately caused by the earlier Iowa injury.
 
                      
 
            
 
 
         
 
         
 
         
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
                                         :
 
         BEVERLY WELLS,                  :
 
                                         :
 
              Claimant,                  :
 
                                         :
 
         vs.                             :
 
                                         :       File No. 820795
 
         EVERCO INDUSTRIES,              :
 
                                         :          A P P E A L
 
              Employer,                  :
 
                                         :        D E C I S I O N
 
         and                             :
 
                                         :
 
         YASUDA FIRE & MARINE            :
 
         INSURANCE COMPANY,              :
 
                                         :
 
              Insurance Carrier,         :
 
              Defendants.                :
 
         _________________________________________________________________
 
         
 
              The record, including the transcript of the hearing before 
 
         the deputy and all exhibits admitted into the record, has been 
 
         reviewed de novo on appeal.
 
         
 
                                      ISSUES
 
         
 
              Defendants state the following issue on appeal:
 
         
 
              The deputy industrial commissioner erred in determining 
 
              that claimant had suffered a change of economic 
 
              condition since the approval of an agreement for 
 
              settlement in May 1991.
 
         
 
              Claimant states the following issues on cross-appeal:
 
         
 
                I.  The deputy industrial commissioner correctly 
 
              increased the award for permanent partial disability.
 
         
 
               II.  The deputy should have awarded the medical 
 
              benefits and mileage set forth in the record.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              The findings of fact contained in the proposed agency 
 
         decision filed March 11, 1993 are adopted as final agency action.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The conclusions of law contained in the proposed agency 
 
         decision filed March 11, 1993 are adopted as set forth below.  
 
         Segments designated by asterisks (*****) indicate portions of the 
 
         language from the proposed agency decision that have been 
 
         intentionally deleted and do not form a part of this final agency 
 
         decision.  Segments designated by brackets ([ ]) indicate 
 

 
         
 
         Page   2
 
        
 
         
 
         language that is in addition to the language of the proposed 
 
         agency decision.
 
         
 
              The first issue to be determined is whether claimant has 
 
         sustained a change of economic condition since the agreement for 
 
         settlement in May 1991.
 
         
 
              Pursuant to Iowa Code section 86.14(2), in a proceeding to 
 
         reopen an award for payments, inquiry is to be made into whether 
 
         or not the condition of the employee warrants an end to, dimin
 
         ishment of, or increase of compensation previously awarded.  A 
 
         change in condition must be shown to justify changing the origi
 
         nal award.  Henderson v. Iles, 250 Iowa 787; 96 N.W.2d 321 
 
         (1959).  It is not proper to merely redetermine the condition of 
 
         the employee as adjudicated by the former award.  Stice v. 
 
         Consolidated Ind. Coal Co., 228 Iowa 1031, 291 N.W. 452 (1940).
 
         
 
              A mere difference of opinion of experts or competent 
 
         observers as to the degree of disability arising from the origi
 
         nal injury is insufficient to justify a different determination 
 
         on a petition for review-reopening; there must be substantial 
 
         evidence of a worsening of the condition not contemplated at the 
 
         time of the first award.  Bousfield v. Sisters of Mercy, 249 Iowa 
 
         64, 86 N.W.2d 109 (1957).  Or, a change in condition may be found 
 
         where claimant has failed to improve to the extent initially 
 
         anticipated, Meyers v. Holiday Inn of Cedar Falls, Iowa, 272     
 
         N.W.2d 24 (Iowa App. 1978).  Additionally, in cases not involving 
 
         scheduled members, a change in earning capacity subsequent to the 
 
         original award which is proximately caused by the original injury 
 
         may constitute a change in condition.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
         
 
              The required change of condition to satisfy the requirements 
 
         of review-reopening need not rest solely upon a change of physi
 
         cal condition if economic hardships causally related to a com
 
         pensable injury but not contemplated within the initial award or 
 
         agreement are demonstrated.  An increase in industrial disability 
 
         may occur without a change in physical condition.  A change in 
 
         earning capacity (subsequent to the original award) which is 
 
         proximately caused by the original injury also constitutes a 
 
         change in condition.  Black, 290 N.W.2d 348 (Iowa 1980); 
 
         McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  The 
 
         question thus secondarily becomes whether or not claimant's 
 
         industrial disability has changed.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of earn
 
         ing capacity, but consideration must also be given to the injured 
 
         employee's age, education, qualifications, experience and inabil
 
         ity 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 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is proportion
 
         ally related to a degree of impairment of bodily function.
 
         
 
              Factors to be considered in determining industrial dis
 
         ability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's qualifi
 
         cations 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 arriv
 
         ing 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, moti
 
         vation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985);  Christensen v. Hagen, Inc., (Appeal 
 
         Decision, March 26, l985).
 
         
 
              Since this is a review-reopening from a prior settlement 
 
         agreement, the burden of proof is upon claimant to show a change 
 
         of condition by a preponderance of the evidence.  Caterpillar 
 
         Tractor Co. v. Mejorado, 410 N.W.2d 675 (Iowa 1987); Stice, 228 
 
         Iowa 1031, 291 N.W.2d 452.  The employee must show "additional 
 
         consequences, facts and circumstances" proximately caused by the 
 
         original injury that occurred subsequent to the settlement being 
 
         reviewed.  Henderson, 250 Iowa 787, 96 N.W.2d 321; Deaver v. 
 
         Armstrong Rubber Co., 170 N.W.2d 455 (Iowa 1969).  A nonphysical 
 
         change in condition will permit an additional award where there 
 
         is a change in earning capacity without a change in physical 
 
         condition subsequent to the original settlement or award 
 
         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 physical restrictions and limited job possibilities.
 
         
 
              Weighing these factors together and considering all of the 
 
         other industrial disability factors in this case, it is 
 
         determined that claimant has sustained an additional 20 percent 
 
         industrial disability.
 
         
 
              [Claimant has shown a change of economic condition.  
 
         Although often a plant layoff is not considered a change of 
 
         economic condition, as a layoff affects all workers equally, in 
 
         this case the record shows that claimant was not recalled due to 
 
         her restrictions from her work injury.]
 
         
 
              The next issue to be determined is whether claimant is 
 
         entitled to medical benefits under Iowa Code section 85.27, 
 
         specifically, whether claimant is entitled to reimbursement for 
 
         an examination at the Mayo Clinic and for unpaid medication 
 
         expenses.
 
         
 
              The employer shall furnish reasonable surgical, medical, 
 
         dental, osteopathic, chiropractic, podiatric, physical 
 
         rehabilitation, nursing, ambulance and hospital services and 
 
         supplies for all conditions compensable under the workers' 
 
         compensation law.  The employer shall also allow reasonable and 
 
         necessary transportation expenses incurred for those services.  
 
         The employer has the right to choose the provider of care, except 
 
         where the employer has denied liability for the injury.  Section 
 
         85.27.; Holbert v. Townsend Engineering Co., Thirty-second 
 
         Biennial Report of the Industrial Commissioner 78 
 
         (Review-reopening 1975).  Claimant has the burden of proving that 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         the fees charged for such services are reasonable.  Anderson v. 
 
         High Rise Constr. Specialists, Inc., File No. 850096 (App. 1990).
 
         
 
              Claimant is not entitled to reimbursement for medical bills 
 
         unless claimant shows they were paid from claimant's funds.  See 
 
         Caylor v. Employers Mut. Casualty Co., 337 N.W.2d 890 (Iowa Ct. 
 
         App. 1983).
 
         
 
              When a designated physician refers a patient to another 
 
         physician, that physician acts as the defendant employer's agent.  
 
         Permission for the referral from defendants is not necessary.  
 
         Kittrell v. Allen Memorial Hospital, Thirty-fourth Biennial 
 
         Report of the Industrial Commissioner 164 (Arb. Decn. 1979) 
 
         (aff'd by indus. comm'r).
 
         
 
              An employer's right to select the provider of medical 
 
         treatment to an injured worker does not include the right to 
 
         determine how an injured worker should be diagnosed, evaluated, 
 
         treated or other matters of professional medical judgment.  
 
         Assmann v. Blue Star Foods, Inc., File No. 866389 (Declaratory 
 
         Ruling, May 18, 1988).
 
         
 
              Claimant testified that she underwent examination and 
 
         assessment at the Mayo Clinic on November 20, 1989 for purposes 
 
         of a second opinion.  Claimant acknowledged that this examination 
 
         was unauthorized.  However, she argues that the opinions rendered 
 
         at the clinic improved her condition and mitigated employer's 
 
         liability.  Claimant's argument is unpersuasive and since the 
 
         second opinion was clearly unauthorized, the costs for such 
 
         examination will not be awarded to her.
 
         
 
              In addition to requesting reimbursement for the Mayo Clinic 
 
         evaluation, claimant submitted a list of unpaid prescription 
 
         bills from McWilliams Drug.  Claimant testified that all of these 
 
         prescriptions were prescribed by Dr. Neiman for treatment related 
 
         to her January 21, 1986 injury.*****[Claimant's submitted list of 
 
         expenses, attached bills from Dr. Neiman and the McWilliams Drug 
 
         Store, and the deposition testimony of Dr. Neiman, establish a 
 
         causal connection to her work injury and those expenses will be 
 
         awarded to claimant.]
 
         
 
              WHEREFORE, the decision of the deputy is affirmed and 
 
         modified.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendants pay to claimant an additional one hundred 
 
         (100) weeks of permanent partial disability benefits at the rate 
 
         of two hundred twenty and 51/100 dollars ($220.51) per week 
 
         commencing on January 25, 1992.
 
         
 
              That defendants shall pay the medical expenses submitted by 
 
         claimant for services by Dr. Neiman and for prescriptions from 
 
         McWilliams Drug.
 
         
 

 
         
 
         Page   6
 
         
 
         
 
         
 
              That defendants pay accrued amounts in a lump sum.
 
         
 
              That defendants pay interest pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That claimant and defendants shall share equally the costs 
 
         of the appeal including transcription of the hearing.  Defendants 
 
         shall pay all other costs.
 
         
 
              That defendants shall file claim activity reports as 
 
         required by this agency pursuant to rule 343 IAC 3.1.
 
         
 
              
 
         
 
              Signed and filed this ____ day of January, 1994.
 
         
 
         
 
         
 
         
 
         
 
                                       ________________________________
 
                                                BYRON K. ORTON
 
                                           INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. H. Edwin Detlie
 
         Attorney at Law
 
         114 North Market Street
 
         Ottumwa, Iowa  52501-2912
 
         
 
         Mr. Walter F. Johnson
 
         Attorney at Law
 
         111 West Second Street
 
         P O Box 716
 
         Ottumwa, Iowa  52501-2502
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                             5-2905; 5-2700
 
                                             Filed January 31, 1994
 
                                             BYRON K. ORTON
 
                     
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
            BEVERLY WELLS,                  :
 
                                            :
 
                 Claimant,                  :
 
                                            :
 
            vs.                             :
 
                                            :       File No. 820795
 
            EVERCO INDUSTRIES,              :
 
                                            :          A P P E A L
 
                 Employer,                  :
 
                                            :        D E C I S I O N
 
            and                             :
 
                                            :
 
            YASUDA FIRE & MARINE            :
 
            INSURANCE COMPANY,              :
 
                                            :
 
                 Insurance Carrier,         :
 
                 Defendants.                :
 
            ____________________________________________________________
 
            
 
            5-2905
 
            Claimant proved by a preponderance of the evidence that she 
 
            sustained a change of economic condition subsequent to the 
 
            agreement for settlement.  Claimant was awarded an 
 
            additional 20 percent permanent partial disability benefits 
 
            after being laid off by employer due to her disability.
 
            
 
            
 
            5-2700
 
            Claimant's visit to the Mayo Clinic for second opinion was 
 
            clearly unauthorized and therefore she was not awarded the 
 
            costs.
 
            
 
 
            
 
            
 
            
 
                                                52701
 
                                                Filed March 21, 1994
 
                                                Jean M. Ingrassia
 
            
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            BEVERLY WELLS, 
 
                                               File No. 820795
 
                 Claimant, 
 
                                               A L T E R N A T E
 
            vs.       
 
                                                M E D I C A L 
 
            EVERCO INDUSTRIES,  
 
                                                   C A R E  
 
                 Employer,
 
                                                D E C I S I O N
 
            and       
 
                      
 
            YASUDE FIRE & MARINE,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
            52701
 
            Defendants were ordered to designate a treating physician to 
 
            provide claimant with ongoing medical care for her 
 
            work-related injury.
 
            
 
 
            
 
            
 
            
 
            
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ------------------------------------------------------------
 
            BEVERLY WELLS, 
 
                                                File No. 820795
 
                 Claimant, 
 
                                               A L T E R N A T E
 
            vs.       
 
                                                 M E D I C A L 
 
            EVERCO INDUSTRIES,  
 
                                                   C A R E  
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            YASUDE FIRE & MARINE,    
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ------------------------------------------------------------
 
           
 
                                STATEMENT OF THE CASE
 
            
 
            This is a proceeding for alternate medical care under Iowa 
 
            Code section 85.27.  Claimant has invoked the summary 
 
            procedures set forth in rule 343 IAC 4.48.  The action is 
 
            upon the petition of Beverly Jean Wells against Everco 
 
            Industries, employer and Yasuda Fire and Marine, insurance 
 
            carrier.  Mr. Wells sustained an injury on January 21, 1986.  
 
            Employer has admitted liability as to this injury.  Claimant 
 
            requests that defendants authorize a treating physician to 
 
            manage claimant's ongoing medical care.  
 
            
 
            A telephone conference hearing was held on March 18, 1994.  
 
            Claimant participated personally and was represented by her 
 
            attorney Mr. H. Edwin Detlie.  Defendants were represented 
 
            by Mrs. Gayla Harrison.  The documentary evidence identified 
 
            in the record consists of claimant's exhibits 8 through 17.  
 
            
 
                                       ISSUE
 
            
 
            The sole issue presented for resolution is whether 
 
            defendants have authorized a treating physician to provide 
 
            claimant with ongoing medical care.  
 
            
 
                                FINDINGS OF FACT
 
            
 
            The undersigned has carefully considered all the testimony 
 
            given at the hearing, arguments made, evidence contained in 
 
            the exhibits herein, and makes the following findings:
 
            Claimant testified that she has been under the care of 
 
            Richard Neiman, M.D., since 1986.  She stated that she has a 
 
            good working relationship with Dr. Nieman and he has 
 
            provided excellent care.  At the present time, she sees Dr. 
 
            Neiman two times a year primarily for renewal of 
 
            prescription pain medication.  Defendants countered that 
 
            David J. Boarini, M.D., is the authorized treating 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            physician.  However, claimant testified that she was only 
 
            sent to Dr. Boarini for two independent medical 
 
            examinations, the last one in March 1993.  She described the 
 
            relationship as unpleasant and feels that Dr. Boarini is not 
 
            interested in treating her. 
 
            conclusions of law
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., File No. 850096 (App. 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for the referral from defendants is not 
 
            necessary.   Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker does not include the right to 
 
            determine how an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgment.  Assmann v. Blue Star Foods, Inc., File No. 866389 
 
            (Declaratory Ruling, May 18, 1988).
 
            Clearly, defendants have not offered claimant care which is 
 
            reasonably suited to treat her work injury.  In fact, 
 
            defendants have not provided claimant with any ongoing care.  
 
            They have, however, acquiesced in treatment by Dr. Neiman 
 
            prior to September 21, 1993, when they notified him that 
 
            they would no longer authorize his care.  (exhibit 15).  
 
            Nevertheless, defendants agreed to an amicable compromise 
 
            and with input from claimant agreed to designate a mutually 
 
            acceptable physician to provide her with ongoing care and 
 
            treatment.  If this arrangement become unworkable, claimant 
 
            has the option of filing another alternate care petition 
 
            with the industrial commissioner's office.
 
            The undersigned has been delegated the authority to issue 
 
            final agency action in this matter.  Appeal of this 
 
            decision, if any, would be by judicial review pursuant to 
 
            Iowa Code section 17A.19.
 
            
 
                                        ORDER
 
            
 
            THEREFORE IT IS ORDERED:
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            That defendants designate a physician to provide claimant 
 
            with ongoing medical care to treat her work-related injury.  
 
            That defendants pay the costs of this action pursuant to 
 
            rule 343 IAC 4.33 and Iowa Code section 86.40.
 
            Signed and filed this ________ day of March, 1994.
 
            
 
            
 
            
 
            
 
                                          ______________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER    
 
            
 
            Copies to:
 
            
 
            Mr. H. Edwin Detlie
 
            Attorney at Law
 
            114 N Market St
 
            Ottumwa, Iowa  52501
 
            
 
            Mr. Walter Johnson
 
            Attorney at Law
 
            1111 W. 2nd St
 
            PO Box 716
 
            Ottumwa, Iowa  52501
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                                          :
 
            BEVERLY WELLS,                :
 
                                          :
 
                 Claimant,                :       File No. 820795
 
                                          :
 
            vs.                           :
 
                                          :        R E V I E W -
 
            EVERCO INDUSTRIES INC.,       :
 
                                          :      R E O P E N I N G
 
                 Employer,                :
 
                                          :       D E C I S I O N
 
            and                           :
 
                                          :
 
            YASUDA FIRE AND MARINE,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                             STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Beverly Wells, claimant, against Everco Industries, 
 
            employer, and Yasuda Fire and Marine, insurance carrier, for 
 
            benefits as a result of an injury sustained on January 21, 
 
            1986.  A hearing was held in Oskaloosa, Iowa, on March 2, 
 
            1993, and the case was fully submitted at the close of the 
 
            hearing.  Claimant was present and testified.  Also present 
 
            and testifying were Kenneth Fitzsimmons and JoAnn Spencer.  
 
            The documentary evidence identified in the record consists 
 
            of joint exhibits 1-18 (excluding exhibits 2, 4, 13, 15 and 
 
            16), and, claimant's exhibit A.
 
            
 
                                      issues
 
            
 
                 The issues to be determined, as set out by the parties 
 
            in the hearing report include:
 
            
 
                 1.  Whether claimant has sustained a change of economic 
 
            condition since May 7, 1991, when their Agreement for 
 
            Settlement was approved by the industrial commissioner; and,
 
            
 
                 2.  Whether claimant is entitled to medical expenses 
 
            pursuant to Iowa Code section 85.27.
 
            
 
                 In the order approving the parties' agreement for 
 
            settlement, claimant was awarded 112.50 weeks of permanent 
 
            partial disability benefits at the rate of $220.51 per week, 
 
            for a total of $24,807.37.  Unsettled at that time was a 
 
            medical bill from the Mayo Clinic in the amount of $4,499 
 
            for an evaluation performed on November 20, 1989.
 
            
 
                 The parties have stipulated that if claimant is 
 
            entitled to additional permanent partial disability 
 
            benefits, the commencement date for payment is January 25, 
 
            1992.  
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 On June 21, 1982, claimant was hired by employer as a 
 
            Grade 2 laborer at $6.14 an hour.  By September 22, 1986, 
 
            claimant was earning $8.87 per hour.  Claimant testified 
 
            that as a result of a work injury in January 1986, she was 
 
            off work for two years.  Claimant returned to work for 
 
            employer on February 1, 1988, and because of three and 
 
            one-half pound weight lifting limitation, she was placed in 
 
            the packing department and reclassified as a Grade 1 
 
            laborer.   This change in status reduced claimant's wage to 
 
            $8.59 per hour.
 
            
 
                 Testimony from Kenneth Fitzsimmons, claimant's 
 
            supervisor since February 1988, reveals that claimant was 
 
            laid off from November through December 1990; September 
 
            through November 1991; February through June 1992; and, 
 
            November 1992 to the present because her restrictions 
 
            prevented employer from placing her in any other job within 
 
            the factory.  Claimant admitted that the job she was given 
 
            in February 1988 in the packing department was an "easy" job 
 
            which required no lifting, carrying, bending, stooping or 
 
            climbing.
 
            
 
                 On January 4, 1993, defendants filed answers to 
 
            claimant's interrogatories and stated that:  "Claimant was 
 
            laid off effective 11/9/92 due to reduction of work-force in 
 
            Department 5.  She had restrictions from Dr. Neiman stating 
 
            she could only work in Department 5." (Exhibit 10, page 539)  
 
            When asked by claimant whether employer had any intention of 
 
            recalling her back to work he responded:  "She will be 
 
            recalled based on labor contract and her seniority when 
 
            employer's needs and future plant schedule as to Department 
 
            5 dictates." (Ex. 10, p. 539)
 
            
 
                 At the hearing, JoAnn Spencer, registered nurse with 
 
            employer since October 1984 and a member of the First Aide 
 
            and Human Resources Department, testified that she learned 
 
            the day before the hearing that based on testimony given by 
 
            David J. Boarini, M.D., in a deposition taken on February 
 
            15, 1993, that  claimant is now considered eligible for 
 
            recall in any department at Everco.  Specifically, Dr. 
 
            Boarini stated that claimant has no specific restrictions 
 
            based on the objective medical evidence.  However, based on 
 
            her symptoms, she is restricted from repetitive lifting over 
 
            20 pounds or maybe even 40-50 pounds (Ex. 1).
 
            
 
                 Claimant testified that she received unemployment 
 
            insurance compensation benefits during those periods that 
 
            she was laid off from Everco.  She testified that in May 
 
            1992, she commenced a secretarial program at Indian Hills 
 
            Community College and is expected to graduate in August 
 
            1993.  She voluntarily participates in this retraining 
 
            program because she is under the impression that her 
 
            employment at Everco has been terminated.  She learned for 
 
            the first time at the hearing that employer now considers 
 
            her eligible for recall.  Nevertheless, she admitted being 
 
            puzzled by employer's recent reliance on Dr. Boarini's 
 
            February 1993 opinion because he had the same opinion on 
 
            March 6, 1991 (Ex. 2).
 
            
 
                               CONCLUSIONS OF LAW
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
                 The first issue to be determined is whether claimant 
 
            has sustained a change of economic condition since the 
 
            agreement for settlement in May 1991.
 
            
 
                 Pursuant to Iowa Code section 86.14(2), in a proceeding 
 
            to reopen an award for payments, inquiry is to be made into 
 
            whether or not the condition of the employee warrants an end 
 
            to, diminishment of, or increase of compensation previously 
 
            awarded.  A change in condition must be shown to justify 
 
            changing the original award.  Henderson v. Iles, 250 Iowa 
 
            787; 96 N.W.2d 321 (1959).  It is not proper to merely 
 
            redetermine the condition of the employee as adjudicated by 
 
            the former award.  Stice v. Consolidated Ind. Coal Co., 228 
 
            Iowa 1031, 291 N.W. 452 (1940).
 
            
 
                 A mere difference of opinion of experts or competent 
 
            observers as to the degree of disability arising from the 
 
            original injury is insufficient to justify a different 
 
            determination on a petition for review-reopening; there must 
 
            be substantial evidence of a worsening of the condition not 
 
            contemplated at the time of the first award.  Bousfield v. 
 
            Sisters of Mercy, 249 Iowa 64, 86 N.W.2d 109 (1957).  Or, a 
 
            change in condition may be found where claimant has failed 
 
            to improve to the extent initially anticipated, Meyers v. 
 
            Holiday Inn of Cedar Falls, Iowa, 272     N.W.2d 24 (Iowa 
 
            App. 1978).  Additionally, in cases not involving scheduled 
 
            members, a change in earning capacity subsequent to the 
 
            original award which is proximately caused by the original 
 
            injury may constitute a change in condition.  Blacksmith v. 
 
            All-American, Inc., 290 N.W.2d 348 (Iowa 1980).
 
            
 
                 The required change of condition to satisfy the 
 
            requirements of review-reopening need not rest solely upon a 
 
            change of physical condition if economic hardships causally 
 
            related to a compensable injury but not contemplated within 
 
            the initial award or agreement are demonstrated.  An 
 
            increase in industrial disability may occur without a change 
 
            in physical condition.  A change in earning capacity 
 
            (subsequent to the original award) which is proximately 
 
            caused by the original injury also constitutes a change in 
 
            condition.  Black, 290 N.W.2d 348 (Iowa 1980); McSpadden v. 
 
            Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).  The question 
 
            thus secondarily becomes whether or not claimant's 
 
            industrial disability has changed.
 
            
 
                 Functional impairment is an element to be considered in 
 
            determining industrial disability which is the reduction of 
 
            earning capacity, but consideration must also be given to 
 
            the injured employee's age, education, qualifications, 
 
            experience and inability to engage in employment for which 
 
            he is fitted.  Olson v. Goodyear Service Stores, 255 Iowa 
 
            1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 253 
 
            Iowa 285, 110 N.W.2d 660 (1961).
 
            
 
                 A finding of impairment to the body as a whole found by 
 
            a medical evaluator does not equate to industrial disabil
 
            ity.  This is so as impairment and disability are not syn
 
            onymous.  Degree of industrial disability can in fact be 
 
            much different than the degree of impairment because in the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            first instance reference is to loss of earning capacity and 
 
            in the latter to anatomical or functional abnormality or 
 
            loss.  Although loss of function is to be considered and 
 
            disability can rarely be found without it, it is not so that 
 
            a degree of industrial disability is proportionally related 
 
            to a degree of impairment of bodily function.
 
            
 
                 Factors to be considered in determining industrial dis
 
            ability include the employee's medical condition prior to 
 
            the injury, immediately after the injury, and presently; the 
 
            situs of the injury, its severity and the length of healing 
 
            period; the work experience of the employee prior to the 
 
            injury, after the injury and potential for rehabilitation; 
 
            the employee's qualifications intellectually, emotionally 
 
            and physically; earnings prior and subsequent to the injury; 
 
            age; education; motivation; functional impairment as a 
 
            result of the injury; and inability because of the injury to 
 
            engage in employment for which the employee is fitted.  Loss 
 
            of earnings caused by a job transfer for reasons related to 
 
            the injury is also relevant.  These are matters which the 
 
            finder of fact considers collectively in arriving at the 
 
            determination of the degree of industrial disability.
 
            
 
                 There are no weighting guidelines that indicate how 
 
            each of the factors are to be considered.  There are no 
 
            guidelines which give, for example, age a weighted value of 
 
            ten percent of the total value, education a value of fifteen 
 
            percent of total, motivation - five percent; work experience 
 
            - thirty percent, etc.  Neither does a rating of functional 
 
            impairment directly correlate to a degree of industrial 
 
            disability to the body as a whole.  In other words, there 
 
            are no formulae which can be applied and then added up to 
 
            determine the degree of industrial disability.  It therefore 
 
            becomes necessary for the deputy or commissioner to draw 
 
            upon prior experience, general and specialized knowledge to 
 
            make the finding with regard to degree of industrial dis
 
            ability.  See Peterson v. Truck Haven Cafe, Inc., (Appeal 
 
            Decision, February 28, 1985);  Christensen v. Hagen, Inc., 
 
            (Appeal Decision, March 26, l985).
 
            
 
                 Since this is a review-reopening from a prior 
 
            settlement agreement, the burden of proof is upon claimant 
 
            to show a change of condition by a preponderance of the 
 
            evidence.  Caterpillar Tractor Co. v. Mejorado, 410 N.W.2d 
 
            675 (Iowa 1987); Stice, 228 Iowa 1031, 291 N.W.2d 452.  The 
 
            employee must show "additional imant's layoff status is a 
 
            nonphysical change of condition which has caused additional 
 
            loss of earnings since the settlement agreement in May 1991.
 
            
 
                 When claimant was laid off in November 1992, she was 
 
            earning $9.04 per hour plus 24 cents per hour night pay 
 
            differential.  That job now pays $9.29 per hour.  Claimant 
 
            testified that upon completion of the secretarial program 
 
            she expects to enter a job market which pays only $6 an 
 
            hour.  This represents a diminution in potential future 
 
            earnings.  The layoff forced claimant to seek retraining on 
 
            her own in order to pursue other employment.  The layoff 
 
            forces claimant into the competitive job market with 
 
            significant physical restrictions and limited job 
 
            possibilities.
 
            
 
                 Weighing these factors together and considering all of 
 
            the other industrial disability factors in this case, it is 
 
            determined that claimant has sustained an additional 20 
 
            percent industrial disability.
 
            
 
                 The next issue to be determined is whether claimant is 
 
            entitled to medical benefits under Iowa Code section 85.27, 
 
            specifically, whether claimant is entitled to reimbursement 
 
            for an examination at the Mayo Clinic and for unpaid 
 
            medication expenses.
 
            
 
                 The employer shall furnish reasonable surgical, 
 
            medical, dental, osteopathic, chiropractic, podiatric, 
 
            physical rehabilitation, nursing, ambulance and hospital 
 
            services and supplies for all conditions compensable under 
 
            the workers' compensation law.  The employer shall also 
 
            allow reasonable and necessary transportation expenses 
 
            incurred for those services.  The employer has the right to 
 
            choose the provider of care, except where the employer has 
 
            denied liability for the injury.  Section 85.27.; Holbert v. 
 
            Townsend Engineering Co., Thirty-second Biennial Report of 
 
            the Industrial Commissioner 78 (Review-reopen 1975).  
 
            Claimant has the burden of proving that the fees charged for 
 
            such services are reasonable.  Anderson v. High Rise Constr. 
 
            Specialists, Inc., File No. 850096 (App. 1990).
 
            
 
                 Claimant is not entitled to reimbursement for medical 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            bills unless claimant shows they were paid from claimant's 
 
            funds.  See Caylor v. Employers Mut. Casualty Co., 337 
 
            N.W.2d 890 (Iowa Ct. App. 1983).
 
            
 
                 When a designated physician refers a patient to another 
 
            physician, that physician acts as the defendant employer's 
 
            agent.  Permission for the referral from defendants is not 
 
            necessary.  Kittrell v. Allen Memorial Hospital, 
 
            Thirty-fourth Biennial Report of the Industrial Commissioner 
 
            164 (Arb. Decn. 1979) (aff'd by indus. comm'r).
 
            
 
                 An employer's right to select the provider of medical 
 
            treatment to an injured worker does not include the right to 
 
            determine how an injured worker should be diagnosed, 
 
            evaluated, treated or other matters of professional medical 
 
            judgment.  Assmann v. Blue Star Foods, Inc., File No. 866389 
 
            (Declaratory Ruling, May 18, 1988).
 
            
 
                 Claimant testified that she underwent examination and 
 
            assessment at the Mayo Clinic on November 20, 1989 for 
 
            purposes of a second opinion.  Claimant acknowledged that 
 
            this examination was unauthorized.  However, she argues that 
 
            the opinions rendered at the clinic improved her condition 
 
            and mitigated employer's liability.  Claimant's argument is 
 
            unpersuasive and since the second opinion was clearly 
 
            unauthorized, the costs for such examination will not be 
 
            awarded to her.
 
            
 
                 In addition to requesting reimbursement for the Mayo 
 
            Clinic evaluation, claimant submitted a list of unpaid 
 
            prescription bills from McWilliams Drug.  Claimant testified 
 
            that all of these prescriptions were prescribed by Dr. 
 
            Neiman for treatment related to her January 21, 1986 injury.  
 
            However, claimant did not produce the actual bills 
 
            describing the services or identity of the provider in order 
 
            to compare them with the dates of the prescribed medication 
 
            for which claimant seeks reimbursement.   Claimant has the 
 
            burden of proof in this regard.  Claimant has not produced 
 
            progress notes from Dr. Neiman and the undersigned has no 
 
            way of correlating exhibit A with services performed by Dr. 
 
            Neiman.   Accordingly, the undersigned cannot order 
 
            defendants to pay the prescription expenses listed in 
 
            claimant's exhibit A.
 
            
 
                           
 
            
 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
           ORDER
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants pay to claimant an additional one 
 
            hundred (100) weeks of permanent partial disability benefits 
 
            at the rate of two hundred twenty and 51/100 dollars 
 
            ($220.51) per week commencing on January 25, 1992.
 
            
 
                 That defendants pay accrued amounts in a lump sum.
 
            
 
                 That defendants pay interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That the costs of this action shall be paid by 
 
            defendants pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file claim activity reports as 
 
            required by this agency pursuant to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of March, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
                                   ________________________________
 
                                          JEAN M. INGRASSIA
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr H Edwin Detlie
 
            Attorney at Law
 
            114 N Market St
 
            Ottumwa IA 52501-2912
 
            
 
            Mr Walter F Johnson
 
            Attorney at Law
 
            111 W Second St
 
            P O Box 716
 
            Ottumwa IA 52501-2502
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               5-2905; 5-2700
 
                                               Filed March 11, 1993
 
                                               Jean M. Ingrassia
 
            
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
            ____________________________________________________________
 
                      
 
            BEVERLY WELLS, 
 
                      
 
                 Claimant,                      File No. 820795
 
                      
 
            vs.       
 
                                                 R E V I E W -
 
            EVERCO INDUSTRIES INC.,  
 
                                              R E O P E N I N G
 
                 Employer, 
 
                                                D E C I S I O N
 
            and       
 
                      
 
            YASUDA FIRE AND MARINE,  
 
                      
 
                 Insurance Carrier,  
 
                 Defendants.    
 
            ___________________________________________________________
 
            
 
            5-2905
 
            Claimant proved by a preponderance of the evidence that she 
 
            sustained a change of economic condition subsequent to the 
 
            agreement for settlement.  Claimant was awarded an 
 
            additional 20 percent permanent partial disability benefits 
 
            after being laid off by employer due to her disability.
 
            
 
            5-2700
 
            Claimant's visit to the Mayo Clinic for second opinion was 
 
            clearly unauthorized and therefore she was not awarded the 
 
            costs.
 
            The medical expenses contained in claimant's exhibit A were 
 
            not awarded because claimant did not provide any bills 
 
            describing the services or the identity of the providers in 
 
            order to compare them with the dates of the prescribed 
 
            medication for which claimant sought reimbursement.