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                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GERALD L. KUHL,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  821068
 
            IOWA MEDICAL CLASSIFICATION   :
 
            CENTER,                       :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Gerald 
 
            L. Kuhl, claimant, against Iowa Medical Classification 
 
            Center and the State of Iowa, as defendants, to recover 
 
            benefits as a result of an alleged injury of January 31, 
 
            1986.  The record in this case consists of the testimony of 
 
            claimant; John Brewer, Ph.D.; James Ernst; John Baldwin; 
 
            Rusty Rogerson; claimant's exhibits 1 through 8, inclusive, 
 
            and Defendants' exhibits 1 through 7(n), inclusive.  The 
 
            matter came on for hearing before the undersigned deputy 
 
            industrial commissioner May 15, 1990.  
 
            
 
                                      issues
 
            
 
                 In accordance with the hearing assignment order and the 
 
            prehearing report, the following issues are presented for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained an injury on January 31, 
 
            1986, which arose out of and in the course of his 
 
            employment;
 
            
 
                 2.  Whether the alleged injury is causally connected to 
 
            the disability on which claimant now bases his claim;
 
            
 
                 3.  Whether claimant is entitled to temporary total 
 
            disability benefits or healing period benefits or permanent 
 
            partial disability benefits; and
 
            
 
                 4.  Whether claimant is entitled to medical benefits as 
 
            provided by Iowa Code section 85.27.
 
            
 
                                 findings of fact
 
            
 
                 The undersigned deputy industrial commissioner, having 
 
            heard the testimony and considered all of the evidence, 
 

 
            
 
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            finds that:
 
            
 
                 Claimant began employment with the State of Iowa in 
 
            1965 after obtaining a degree in religion with a minor in 
 
            psychology and sociology from the University of Iowa.  
 
            Claimant held a variety of social service positions with the 
 
            state until approximately 1971 when he became the financial 
 
            manager with the Linn County Social Service Agency.  
 
            (Although this position was with Linn county, it was still 
 
            considered state employment.)  Claimant had a limited 
 
            background to qualify for this position, but took evening 
 
            classes in business and accounting and subsequently took an 
 
            educational leave in 1975 to take additional courses.  In 
 
            approximately October of 1974, claimant was promoted to the 
 
            position of business manager at the Riveview Release Center 
 
            in Newton, Iowa.  In this position, claimant worked closely 
 
            with the superintendent of the facility and decisions on 
 
            such things as the budget were based on the team approach.  
 
            Claimant received evaluations which were well above 
 
            satisfactory (four or five on a scale of one to five).  
 
            
 
                 In June of 1984, claimant sought and received the 
 
            position of business manager at the Iowa Medical 
 
            Classification Center (IMCC) in Oakdale.  Claimant was 
 
            responsible for the business office with a staff of six and 
 
            oversaw the facility's maintenance and dietary functions.  
 
            Claimant felt that initially things went reasonably well and 
 
            he received a satisfactory probationary performance 
 
            evaluation in September of 1984.  However, while claimant 
 
            had had a close working relationship with his supervisor at 
 
            Riverview, and had interacted regularly with this 
 
            supervisor, he found the superintendent at Oakdale to be 
 
            aloof, inaccessible, often absent, and eventually hostile 
 
            with a style of management that was vastly different from 
 
            the team approach taken at the Newton facility.  In March of 
 
            1985, John Baldwin, deputy director of the Department of 
 
            Corrections, met with the claimant and expressed general 
 
            dissatisfactions with the management of the facility 
 
            business operations, including several technical 
 
            deficiencies and skill/capability inadequacies (Claimant's 
 
            Exhibit 1, page 25).
 
            
 
                 A special performance evaluation was done for the 
 
            period covering September 16, 1984 to May 24, 1985, which 
 
            resulted in an overall score of 1.95 and another special 
 
            evaluation was to be performed four months later.  Claimant 
 
            objected to the manner in which the evaluation was done, 
 
            characterizing it as "autocratic" and responded with a seven 
 
            page letter (Cl. Ex. 1, pp. 46-52) expressing his 
 
            dissatisfaction and disagreement with the evaluations 
 
            comments.  Claimant's response was never discussed 
 
            personally with any supervisor. 
 
            
 
                 In September of 1985, claimant was scheduled for 
 
            another evaluation.  However, before it was given to him, 
 
            the scores were "leaked" and claimant wrote a memo to the 
 
            superintendent asking that such a problem be corrected.  The 
 
            evaluation score which claimant eventually received was 
 
            lower than the score that had been "leaked" and claimant 
 
            believed the evaluation was rewritten and lowered in 
 

 
            
 
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            retribution for calling the leak to the superintendent's 
 
            attention.  At this time, claimant chose to initiate the 
 
            agency grievance policy and his grievance was eventually 
 
            heard by Marrie Murray, chief of Bureau of Personnel and 
 
            Training and Paul Grossheim, deputy director of the Division 
 
            of Institutions.  After the grievance was heard, the agency 
 
            response stated:
 
            
 
                 [I]t is apparent that there must be better 
 
                 communication between yourself and your supervisor 
 
                 for the working relationship to have a chance of 
 
                 success.  You must initiate more opportunities for 
 
                 understanding expectations and through sources 
 
                 other than just the Superintendent.  The 
 
                 Superintendent should perhaps make less 
 
                 assumptions about your previous experience, which 
 
                 would affect your knowledge, e.g. JCAH 
 
                 accreditation, and direct you to appropriate 
 
                 resources.  Both participants must communicate 
 
                 better when the supervisor's style is to utilize 
 
                 limited communication.
 
            
 
                 Finally, the issue of training is also a joint 
 
                 responsibility.  Basic skills which you should 
 
                 possess to satisfactorily assume the position are 
 
                 your responsibility as well as the training to 
 
                 establish those skills.  The Employer is 
 
                 responsible for providing the training to enhance 
 
                 your performance or to expand your areas of 
 
                 responsibility.  The Employer's responsibility to 
 
                 provide the training is balanced by you are 
 
                 corresponding responsibility to seek out learning 
 
                 opportunities.  You are to be commended for taking 
 
                 some coursework on your own, and the resulting 
 
                 work performance improvements speak for 
 
                 themselves.
 
            
 
                 In summary, this working relationship may have 
 
                 deteriorated to the point where it will never be 
 
                 positive and you will never be evaluated as a 
 
                 successful performer.  The undersigned feel [sic] 
 
                 strongly that you should seriously improve your 
 
                 performance in the areas of leadership, 
 
                 intrainstitution relationships, and budget 
 
                 administration.  The Superintendent should 
 
                 seriously review his ratings on this revised 
 
                 Section B against the ratings first given for this 
 
                 rating period; adjustment of one or more ratings 
 
                 would seem appropriate.
 
            
 
            (Claimant's Exhibit 1, pages 98-99)
 
            
 
                 The superintendent declined to change claimant's 
 
            ratings on the evaluation and claimant's appeal to the merit 
 
            employment department was denied for lack of jurisdiction.  
 
            (See Cl. Ex. 1, p. 112).  Claimant, at this time, began to 
 
            feel trapped and that he had nowhere to go to redress his 
 
            grievances.
 
            
 
                 In January 1986, claimant had another unsatisfactory 
 

 
            
 
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            performance evaluation which he did not feel was either fair 
 
            or objective.  On January 31, while talking to a personnel 
 
            assistant in Des Moines, claimant reported his plan to have 
 
            a "car accident" to "do away" with himself.  Claimant was 
 
            referred to the state's employee assistance program, took 
 
            sick leave from work and eventually came under the care of 
 
            the Psychiatric Clinic at the University of Iowa Hospitals.  
 
            In the social history taken from claimant's wife, Francis 
 
            Valainis, social worker, wrote:
 
            
 
                    REFERRAL INFORMATION:....Reason for referral is 
 
                 a self-referral for symptoms of stress relating to 
 
                 work and home....
 
            
 
                    ....
 
            
 
                    PRESENT CONDITION:  The wife states that the 
 
                 patient was seen in our emergency clinic for an 
 
                 evaluation about a week ago.  She stated that at 
 
                 that time she did not know her husband was being 
 
                 seen and only found out afterwards.  She states 
 
                 that her husband has been having problems at work 
 
                 since he started this present job about a year or 
 
                 a year and a half ago.  Prior to that time, 
 
                 according to the wife, he did not report having 
 
                 any type of stressful situation at work which he 
 
                 could not handle.  She states that she has not 
 
                 observed any depressive symptoms nor any symptoms 
 
                 of anxiety or delusions or hallucinations.  The 
 
                 only major depressive symptom that she was able to 
 
                 identify is decrease in his concentration.  But 
 
                 this has not been getting any worse.  She noticed 
 
                 this decrease in concentration for the last year 
 
                 or so.  Last week was the first time that he told 
 
                 her that he felt like driving into a telephone 
 
                 pole.  She is not able to identify any particular 
 
                 patterns in regards to his stress at work.  She 
 
                 does know that he had been having difficulty with 
 
                 his boss almost from the first day that he started 
 
                 his job.  She describes this situation in terms of 
 
                 lack of communication with the boss and that no 
 
                 one tells him what the procedures are in the 
 
                 office.  It is her understanding that his present 
 
                 boss wants him to leave the job but doesn't give 
 
                 any particular reasons.  The other present problem 
 
                 relates to a discipline problem in school with one 
 
                 of their youngest son.  She states that she and 
 
                 the two children did not want to move from their 
 
                 last place of residence in Newton.  It has been a 
 
                 difficult time adjusting to the move for both her 
 
                 and the two children.  The other problem relates 
 
                 to an increased complaint of headaches for the 
 
                 last couple of months....
 
            
 
                    ....
 
            
 
                 BACKGROUND INFORMATION:....She describes his usual 
 
                 personality as one who has no sense of humor and 
 
                 is "straight laced", one who likes to be by 
 
     
 
            
 
            
 
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                 himself more than with others and who is generally 
 
                 a "dull" person.
 
            
 
                    ....
 
            
 
                 IMPRESSION:....The primary diagnosis will be an 
 
                 adjustment disorder and rule out major depressive 
 
                 disorder.  The other problems relate to his work 
 
                 situation as well as difficulty in their marriage 
 
                 relationship which has been ongoing for some time.  
 
                 The other problem relates to the adjustment and 
 
                 discipline problem of their youngest son.
 
            
 
            (Cl. Ex. 4, pp.3-6)
 
            
 
                 After diagnostic evaluation, claimant was referred for 
 
            counseling and he began seeing Mr. Valainis on a regular 
 
            basis.  On March 17, 1986, claimant was admitted to the 
 
            University of Iowa Hospitals and Clinic for evaluation of 
 
            increased hypertension, tachycardia, tremors and insomnia.  
 
            It was thought that claimant's symptoms were secondary to an 
 
            adverse reaction of nortriptyline and therefore he was 
 
            advised to discontinue use of the antidepressant but to 
 
            continue with his counseling sessions.
 
            
 
                 Claimant remained off work for approximately three 
 
            months during which time a question arose as to whether he 
 
            had accepted a voluntary demotion from business manager to 
 
            correctional officer.  Claimant did eventually return to 
 
            work on May 15, 1986 as a correction officer but was 
 
            reinstated as business manager with limited responsibilities 
 
            on May 22, 1986.
 
            
 
                 By the time claimant had returned to work, a new 
 
            superintendent had been appointed and claimant felt intense 
 
            pressure to leave.  A memo from the superintendent dated 
 
            June 9, 1986 stated:
 
            
 
                    Last week I informed you that I felt I must 
 
                 impose some time frames concerning your employment 
 
                 at this facility.  On May 29, 1986, you and I had 
 
                 a lengthy conversation concerning your employment 
 
                 status.  We both agreed that you could not remain 
 
                 as Business Manager at this facility.  We also 
 
                 both agreed that it would be impossible for you to 
 
                 successfully perform your duties considering all 
 
                 that has happened.  At that meeting I informed you 
 
                 that I did not feel you had the skills necessary 
 
                 to manage a budget in excess of seven million 
 
                 dollars.  We both agreed that IMCC's current 
 
                 situation is not totally your fault, but you 
 
                 deserve part of the blame.
 
            
 
                    Taking all of this into consideration, you 
 
                 agreed that you would actively seek another job.  
 
                 However, I feel we must establish a time frame for 
 
                 this to be resolved, as I cannot allow this to be 
 
                 a long process.  I feel that to be fair I will 
 
                 give you 60 days to locate another job.  This 
 
                 facility needs a Business Manager very soon.  
 

 
            
 
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                 During this 60 day period I will begin the 
 
                 documentation process, which I will utilize to 
 
                 terminate you, if you have not resigned.
 
            
 
                    I feel I have been fair and honest with you and 
 
                 now it your turn to be fair with me.  Let's work 
 
                 together to resolve this situation.
 
            
 
            (Cl. Ex. 1, p. 143)
 
            
 
                 Claimant applied for other jobs but was unsuccessful 
 
            until he secured a position as a correctional counselor at 
 
            Oakdale.  Claimant took a voluntary demotion to work in this 
 
            classification although his salary remained the same as that 
 
            of a business manager for one year.  Claimant held that 
 
            position for two and one-half years during which time he 
 
            worked on a certified public accountant review course and 
 
            prepared for the CPA examination.  By May of 1988, claimant 
 
            passed all phases of the exam but was unsuccessful in his 
 
            search for employment to fulfill the two year 
 
            apprenticeship.
 
            
 
                 On February 1, 1989, claimant became the director of 
 
            finance at Four Oaks, a home for "emotionally disturbed 
 
            children" which employment he resigned on or about May 15, 
 
            1990, when it was determined that claimant could not be 
 
            retained.  The position which claimant held was a new 
 
            position at the facility and the executive director 
 
            determined that the person who performed the job had to be 
 
            able to work independently.  Claimant was unable to meet 
 
            that qualification because of the amount of supervision he 
 
            continually needed.  Claimant had a "relapse" of depression 
 
            as the demands of his employment at Four Oaks increased.  In 
 
            May 1986, claimant began an accounting practice in his home.
 
            
 
                 An internal investigation task force was formed May 7, 
 
            1986 to assess the fiscal and staff management of the Iowa 
 
            Medical Classifications Center.  Among the conclusions and 
 
            recommendations of the task force were:
 
            
 
                 1. It is clear to the task force that good budget 
 
                    development, presentation, implementation, 
 
                    decision making, and monitoring processes did 
 
                    not occur on a regular basis at IMCC....
 
            
 
                 2. In the opinion of the Task Force, the business 
 
                    manager is a very key staff member to the total 
 
                    institution.  There was substantial evidence 
 
                    presented that the superintendent and central 
 
                    office had serious doubts about the ability of 
 
                    the business manager to perform his duties 
 
                    satisfactorily.  Whether or not the business 
 
                    manager was competent or incompetent is not a 
 
                    judgement of this Task Force.  Institutional 
 
                    superintendents who do not have complete 
 
                    confidence in the business manager should 
 
                    either quickly take steps to enhance the 
 
                    business manager's performance or designate an 
 
                    immediate replacement.  Consideration should be 
 
                    given to having the business manager serve at 
 

 
            
 
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                    the pleasure of the superintendent or warden to 
 
                    expedite removal if necessary.
 
            
 
                    ....
 
            
 
                 6. The business manager of an institution as 
 
                    mentioned previously is a key employee.  
 
                    Evidence was presented that the business 
 
                    manager was denied authority to be able to do 
 
                    his/her duties in a complete manner.  A 
 
                    detailed system of responsibilities needs to be 
 
                    established and monitored so inappropriate 
 
                    management practices do not occur.
 
            
 
            (Cl. Ex. 1, pp. 135-136)
 
            
 
                 J. D. Brewer, Ph.D, clinical psychologist, began 
 
            treating claimant on a "frequent basis" June 6, 1988.  
 
            Claimant related to Dr. Brewer a history of depression with 
 
            treatments since 1986, discouragement, irritability, low 
 
            energy, poor concentration, memory and difficulty with 
 
            decision making.  Dr. Brewer found nothing significant about 
 
            claimant's family life determining that claimant had a 
 
            supportive wife and "normal" concerns with regard to his 
 
            sons.  Dr. Brewer originally diagnosed major depression in 
 
            partial remission and treated claimant with supportive 
 
            psychotherapy but changed the diagnosis to major depression 
 
            recurrent after claimant's experience at Four Oaks since 
 
            claimant went back into a full blown depression.  Dr. 
 
            Brewer, in the two plus years he has treated claimant, has 
 
            never seen claimant without depression although he has seen 
 
            progress and regression throughout this period of time.  On 
 
            December 28, 1988, Dr. Brewer opined:
 
            
 
                    It appears that Mr. Kuhl's difficulties  were 
 
                 precipitated by stress he experienced at the work 
 
                 place.  Much of the stress appears to be related 
 
                 to his personality features of doing a job 
 
                 perfectly and in control.  Increased role 
 
                 conflicts of being responsible for outcomes 
 
                 without the authority to follow through 
 
                 intensified his difficulties.
 
            
 
                    During the time I have worked with Mr. Kuhl, it 
 
                 has been increasingly apparent that he will not be 
 
                 able to return to his previous occupational job.  
 
                 After he took a voluntary demotion, while it 
 
                 minimized some of the stress, it also had 
 
                 attendant with it an increased feeling of 
 
                 frustration for not being able to use his talents 
 
                 and skills as a business manager.
 
            
 
                    Mr. Kuhl has shown some stabilization and some 
 
                 improvement in the area of self-esteem, although 
 
                 he still experiences considerable emotional 
 
                 turmoil regarding his work setting.
 
            
 
            (Cl. Ex. 5)
 
            
 
                 Claimant was seen by Robert B. Wesner, M.D., Assistant 
 

 
            
 
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            Professor of Psychiatry, at the University of Iowa College 
 
            of Medicine, Department of Psychiatry, on February 14, 27, 
 
            March 13, and 20, 1986.  Dr. Wesner summarized claimant's 
 
            treatment in a letter dated January 5, 1989, stating:
 
            
 
                 Mr. Kuhl presented for diagnostic evaluation on 
 
                 February 14, 1986.  At that time he complained of 
 
                 low energy, persistent fatigue, and difficulty 
 
                 with work performance.  At that time, he reported 
 
                 a history of depressive symptoms that dated back 
 
                 to October 1985.  In October 1985 he began to 
 
                 notice a decrease in energy with decreased 
 
                 motivation, terminal insomnia, increased 
 
                 irritability, social withdrawal and difficulty 
 
                 concentrating on his work.  At the time of his 
 
                 diagnostic evaluation, Mr. Kuhl reported numerous 
 
                 psychosocial problems.  At the time of this 
 
                 evaluation he was working for the Oakdale Security 
 
                 Facility as a business manager.  He described many 
 
                 difficulties with his work position including 
 
                 numerous problems with his superior.  He had also 
 
                 been given three notifications that his work was 
 
                 not up to standards and just prior to his 
 
                 diagnostic evaluation, he was told to leave for 
 
                 three weeks for medical leave to obtain treatment.  
 
                 In addition to the depressive symptoms mentioned 
 
                 above, Mr. Kuhl also expressed symptoms of 
 
                 hopelessness and helplessness stating that he felt 
 
                 trapped in his current situation and saw no way 
 
                 out....
 
            
 
                    Our assessment at the time of initial 
 
                 evaluation was adjustment disorder with depressed 
 
                 mood, rule out major depressive disorder.  Mr. 
 
                 Kuhl did not clearly meet criteria for major 
 
                 depressive disorder at the time of his initial 
 
                 evaluation; however, it could not be entirely 
 
                 ruled out.  Because of that we tried him on 
 
                 Nortriptyline.
 
            
 
                    ....
 
            
 
                    Our impression at the time of his second visit 
 
                 was the same as the first visit.  We were still 
 
                 unable to make a clear diagnosis of adjustment 
 
                 disorder with depressed mood vs major depressive 
 
                 disorder....[T]he patient was referred to one of 
 
                 our social workers for counseling.
 
            
 
                    Mr. Kuhl was seen for the third time in our 
 
                 clinic on March 13, 1986.  At that time he was 
 
                 taking Nortriptyline 75 mg. at bedtime and had 
 
                 been at that dose for approximately 10 days.  
 
                 Although he reported a short period of improvement 
 
                 over those 10 days, he again complained of low 
 
                 mood, poor energy, poor concentration, and poor 
 
                 sleep.  Despite his persistent depressive 
 
                 complaints he had been able to continue with some 
 
                 college courses that he was taking and achieved a 
 
                 C+ on an exam in an accounting course....I 
 

 
            
 
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                 informed Mr. Kuhl that based on our observations 
 
                 there was no reason why he could not return to 
 
                 full time work at that time.
 
            
 
                    I saw Mr. Kuhl for the last time on March 20, 
 
                 1986....Mr. Kuhl related to me at that time that 
 
                 since he had had a poor reaction to antidepressant 
 
                 treatment he did not wish to try any further 
 
                 medication at that time.  He elected to continue 
 
                 to see our social worker for further counseling 
 
                 and to my knowledge he did follow-up on that.  
 
                 Again I was unable to make a clear diagnosis and 
 
                 his assessment remained adjustment disorder with 
 
                 depressed mood vs. major depressive disorder....
 
            
 
                    ...Patients diagnosed with adjustment disorder 
 
                 with depressed mood tend to have a very benign, 
 
                 self-limited course and for the most part did not 
 
                 require medical treatment.  Although they may have 
 
                 typical depressive symptoms they, in general, do 
 
                 not have a recurrent illness that patients with 
 
                 major depressive disorder do.  Patients with major 
 
                 depressive disorder on the other hand tend to have 
 
                 a recurrent depressive illness that may be 
 
                 relatively mild or severe.  Patients with major 
 
                 depressive disorder are good candidates for 
 
                 medical treatment and it is these treatments that 
 
                 antidepressants are the most useful for.  He was 
 
                 only on the antidepressants for a short period of 
 
                 time so it is unclear whether or not further 
 
                 improvement might have been obtained if higher 
 
                 doses or other antidepressants were tried.  As for 
 
                 prognosis, I am unable to make a judgement about 
 
                 prognosis since I was unable to make a diagnosis 
 
                 in the first place.  Additionally, since I was 
 
                 unable to make a clear diagnosis on Mr. Kuhl, I am 
 
                 unable to make a judgement as to whether or not 
 
                 his working conditions either caused or was a 
 
                 significant contributing factor to the problem 
 
                 that brought him to our clinic.
 
            
 
            (Cl. Ex. 6)
 
            
 
                 Claimant was seen by Robert E. Smith, M.D., at the 
 
            request of defendants on January 25, 1989.  Prior to the 
 
            assessment as part of the interpretation of the evaluation, 
 
            previous medical records, including those from the 
 
            University of Iowa Hospitals and Clinics and reports from 
 
            Dr. Wesner and Brewer, were reviewed.  Dr. Smith diagnosed:  
 
            Axis I:  Major Depressive Disorder, probable second episode, 
 
            resolving.  Axis II:  Obsessive-Compulsive Personality 
 
            Disorder.  Dr. Smith wrote on March 9, 1989:
 
            
 
                   Mr. Kuhl clearly has overwhelming evidence to 
 
                 support a diagnosis of Obsessive-Compulsive 
 
                 Personality Disorder.  A personality disorder is 
 
                 defined as enduring patterns of perceiving, 
 
                 relating to, and thinking about the environment 
 
                 and oneself with resultant functional impairment 
 
     
 
            
 
            
 
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                 and subjective distress.
 
            
 
                    Mr. Kuhl's behavioral traits include 
 
                 significant perfectionism; a degree of 
 
                 preoccupation with details, organizations, and 
 
                 lists; an insistence upon others performing tasks 
 
                 or obligations by his rules and orders; a tendency 
 
                 to be excessively devoted to work and 
 
                 productivity; and a degree of inflexibility 
 
                 concerning moralistic and ethical values.  These 
 
                 behavioral traits are essentially life-long in 
 
                 duration and clearly cluster in other family 
 
                 members.
 
            
 
                    It appears that Mr. Kuhl experienced his first 
 
                 episode of depression while he was a college 
 
                 student, leading him to seek care at the Student 
 
                 Health Clinic.  The severity of his illness was 
 
                 moderate and the patient appeared to respond with 
 
                 minimal intervention.  The second episode of 
 
                 depression appears to have occurred in 1985 with 
 
                 continuing residual symptoms.  The presence of the 
 
                 Obsessive-compulsive Personality Disorder places 
 
                 an individual at significantly increased risk for 
 
                 depressive episodes and this clinical observation 
 
                 must be taken into consideration in the evaluation 
 
                 of Mr. Kuhl's depressive episode.
 
            
 
                    ....
 
            
 
                    The relationship between the onset of Mr. 
 
                 Kuhl's depression in the work setting must be 
 
                 evaluated in the context of his Obsessive-
 
                 Compulsive Personality Disorder.  The presence of 
 
                 the endearing traits of perfectionism, insistence, 
 
                 and adhering to rules and regulations, and his 
 
                 insistence in having things performed "his way" 
 
                 placed him in great conflict with his supervisors 
 
                 as well as his employees within his department.  
 
                 As these conflicts escalated, an episode of 
 
                 endogenous, biochemical depression occurred.  Mr. 
 
                 Kuhl was predisposed to the occurrence of a 
 
                 biochemical depression and, in all probability, 
 
                 had already had a previous episode.  His 
 
                 personality traits fueled the fire of increasing 
 
                 stress within the work setting.  As the stresses 
 
                 and conflicts increased, the balance was tipped 
 
                 and an endogenous depression occurred.
 
            
 
                    It is my opinion that if the Obsessive-
 
                 Compulsive Personality Disorder were not present 
 
                 then the level of stress and the level of conflict 
 
                 in the job setting would have been markedly less 
 
                 and, in all likelihood, a depressive episode would 
 
                 not have occurred.  Clearly the demands of the 
 
                 work place cannot be excluded as a factor in 
 
                 understanding the onset of the depression, but 
 
                 their significance is partial at best and cannot 
 
                 be viewed as the prime causation for the 
 
     
 
            
 
            
 
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                 depressive episode.
 
            
 
            (Defendants' Exhibit 5)
 
            
 
            
 
                         reasoning and conclusions of law
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe 246 Iowa 402, 68 N.W.2d 63.
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe, 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of January 31, 
 
            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). 
 
            
 
                 Expert medical evidence must be considered with all 
 
            other evidence introduced bearing on the causal connection.  
 
            Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts 
 
            need not be couched in definite, positive or unequivocal 
 
            language.  Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 
 
            1974).  However, the expert opinion may be accepted or 
 
            rejected, in whole or in part, by the trier of fact.  Id. at 
 
            907.  Further, the weight to be given to such an opinion is 
 
            for the finder of fact, and that may be affected by the 
 
            completeness of the premise given the expert and other 
 
            surrounding circumstances.  Bodish, 257 Iowa 516, 133 N.W.2d 
 
            867.  See also Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967).
 
            
 
                 The first issue for resolution is to determine whether 
 
            claimant's psychological problems constitute an injury which 
 
            arose out of and in the course of his employment.  The 
 
            standard for determining whether a mental injury arose out 
 
            of and in the course of employment was discussed in the case 
 
            of Ohnemus v. John Deere Davenport Works (Appeal Decision 
 
            filed February 26, 1990).  The industrial commissioner, in 
 
            that case, wrote:
 

 
            
 
            Page  12
 
            
 
            
 
            
 
            
 
            
 
                 In order to prevail claimant must prove that he 
 
                 suffered a non-traumatically caused mental injury 
 
                 that arose out of and in the course of his 
 
                 employment.  This matter deals with what is 
 
                 referred to as a mental-mental injury and does not 
 
                 deal with a mental condition caused by physical 
 
                 trauma or a physical condition caused by mental 
 
                 stimulus.  The supreme court in Schreckengast v. 
 
                 Hammer Mills, Inc., 369 N.W.2d 809 (Iowa 1985), 
 
                 recognized that issues of causation can involve 
 
                 either causation in fact or legal causation.  As 
 
                 stated in footnote 3 at 369 N.W.2d 810:
 
            
 
                         We have recognized that in both civil 
 
                      and criminal actions causation in fact 
 
                      involves whether a particular event in 
 
                      fact caused certain consequences to 
 
                      occur.  Legal causation presents a 
 
                      question of whether the policy of the 
 
                      law will extend responsibility to those 
 
                      consequences which have in fact been 
 
                      produced by that event.  State v. Marti, 
 
                      290 N.W.2d 570, 584-85 (Iowa 1980).  
 
                      Causation in fact presents an issue of 
 
                      fact while legal causation presents an 
 
                      issue of law.  Id.
 
            
 
                 That language was the basis of the language in 
 
                 Desgranges v. Dept. of Human Services, (Appeal 
 
                 Decision, August 19, 1988) which discussed that 
 
                 there must be both medical and legal causation for 
 
                 a nontraumatic mental injury to arise out of and 
 
                 in the course of employment.  While Desgranges 
 
                 used the term medical causation the concept 
 
                 involved was factual causation.  Therefore, in 
 
                 this matter it is necessary for two issues to be 
 
                 resolved before finding an injury arising out of 
 
                 and in the course of employment - factual and 
 
                 legal causation.  Proving the factual existence of 
 
                 an injury may be accomplished by either expert 
 
                 testimony or nonexpert testimony.
 
            
 
                 As in Ohnemus, attention is first turned to the matters 
 
            of factual and legal causation.
 
            
 
                 J. D. Brewer, Ph.D., clinical psychologist, reported 
 
            that it "appears" that claimant's difficulties were 
 
            precipitated by stress he expressed at the work place and 
 
            opined that the psychosocial stress of the work environment 
 
            caused claimant's depression.
 
            
 
                 Robert D. Wesner, M.D., Assistant Professor of 
 
            Psychiatry at the University of Iowa Hospitals and Clinics, 
 
            was unable to make a clear diagnosis of claimant's condition 
 
            and therefore was also unable to make a judgment as to 
 
            whether or not claimant's working conditions are the cause 
 
            or were a significant contributing factor to his problems.
 
            
 
                 Robert E. Smith, M.D., opined that claimant suffers 
 

 
            
 
            Page  13
 
            
 
            
 
            
 
            
 
            from an obsessive compulsive personality disorder and if the 
 
            personality disorder were not present then the level of 
 
            stress and the level of conflict in the job setting would 
 
            have been markedly less and a depressive episode would not 
 
            have occurred.  In addition, Dr. Smith stated that while the 
 
            demands of the work place cannot be excluded as a factor in 
 
            understanding the onset of the depression, their 
 
            significance is partial at best and cannot be viewed as the 
 
            prime causation for the depressive episode.
 
            
 
                 Finally, Francis Valainis, licensed social worker, 
 
            related claimant's problems to his work situation as well as 
 
            difficulty in the marriage relationship and to the 
 
            adjustment and disciplinary problems of claimant's youngest 
 
            son.
 
            
 
                 In Ohnemus, the commissioner went on to state:
 
            
 
                    It should be noted that the discussion here is 
 
                 not whether there is a causal connection between 
 
                 an injury and an alleged disability.  The proof of 
 
                 the causal connection between an injury and an 
 
                 alleged disability is dependent upon medical 
 
                 opinion.  That medical opinion cannot only be the 
 
                 opinion of a psychologist.  See Saunders v. Cherry 
 
                 Burrell Corp., II Iowa Industrial Commissioner 
 
                 Report 333 (Appeal Decision 1982) and Palmer v. 
 
                 Norwalk Community School District, II Iowa 
 
                 Industrial Commissioner Report 302 (Appeal 
 
                 Decision 1981).  A psychologist is not a 
 
                 physician.  See Iowa Code section 135.1(5).  If 
 
                 the issue of whether there was a causal connection 
 
                 between claimant's alleged injury and his alleged 
 
                 disability were to be decided in this case, 
 
                 claimant's claim would be denied because there is 
 
                 no opinion of causal connection given by a 
 
                 physician.
 
            
 
                 Dr. Brewer, who clearly would have established the 
 
            factual causal connection necessary, is only a psychologist.  
 
            It is interesting to note, however, that Dr. Brewer did not 
 
            begin treating claimant until June 1988, almost three years 
 
            after the onset of his symptoms.  Francis Valainis is a 
 
            licensed social worker.  Dr. Wesner, a psychiatrist, does 
 
            not render an opinion.  Dr. Smith, also a psychiatrist, 
 
            appears to be somewhat equivocal in his opinion in light of 
 
            his statements with regard to the obsessive compulsive 
 
            personality disorder.
 
            
 
                 A cause is proximate if it is a substantial factor in 
 
            bringing about the result; it need not be the only cause. 
 
            Blacksmith v. All American, Inc., 290 N.W.2d 348, 354 (Iowa 
 
            1980).
 
            
 
                 While it is clear that the work environment cannot be 
 
            excluded as a cause of claimant's problems, the undersigned 
 
            cannot conclude that the medical opinions in this case show 
 
            that the work was a substantial factor in bringing about the 
 
            result.  A review of the only physician rendering an opinion 
 
            in this case leaves to the conclusion that the work was not 
 

 
            
 
            Page  14
 
            
 
            
 
            
 
            
 
            a substantial factor in bringing about the result although 
 
            the work place cannot be excluded as a factor.
 
            
 
                 Therefore, it is concluded that claimant has failed to 
 
            establish his work was the factual cause of his mental 
 
            injury.
 
            
 
                 However, even if claimant had proved that the work was 
 
            the factual cause of his mental condition, claimant must 
 
            also prove that it was the legal cause.  The standard for 
 
            making this determination is whether claimant proved that 
 
            the mental condition resulted from his situation of greater 
 
            dimensions than day-to-day mental stresses and tensions 
 
            which all employees must experience.  Williams Kostelac v. 
 
            Feldman's, Inc., (Appeal Decision filed June 13, 1990).
 
            
 
                 The undersigned cannot conclude claimant has shown that 
 
            the work stresses placed upon him were of greater dimensions 
 
            than the day-to-day mental stresses and tensions which all 
 
            employees must experience.  In Swiss Colony v. Department of 
 
            ICAR, 240 N.W.2d 128 (Wisconsin 1976), the court noted that 
 
            "out of ordinary work stresses must be shown in order for 
 
            claimant to recover." Id. at 240 N.W.2d at 132.
 
            
 
                 The expectation of a supervisor that an individual in a 
 
            responsible position perform to the fullest extent of that 
 
            responsibility cannot be deemed out of ordinary work stress.  
 
            With the transfer from Riverview to IMMC came increased 
 
            responsibility.  Claimant was aware of this if, for no other 
 
            reason, than the size of the facility.  Different managers 
 
            have different management styles as well as skills.  It was 
 
            not reasonable for claimant to expect his supervisors to 
 
            conform to his own working style.
 
            
 
                 Further, claimant was clearly not equipped to handle 
 
            the responsibility of business manager.  In a phrase, 
 
            claimant was "in over his head" and the stress he felt was 
 
            not out of the ordinary considering those circumstances.  As 
 
            well, budget deficit situations exists and are clearly 
 
            stressful.  But such situations are stressful for all 
 
            employees.  The undersigned cannot dispute claimant felt 
 
            this stress for even Dr. Brewer acknowledged that all 
 
            employees would feel stress.  However, Dr. Brewer went on to 
 
            state that whether all employees would get depressed is 
 
            another question.
 
            
 
                 It is undisputed that claimant also failed at 
 
            subsequent employment with Four Oaks.  He had essentially 
 
            the same complaints there as with IMMC.  This leaves the 
 
            undersigned to conclude that claimant's problems were more 
 
            internal than the result of external forces.
 
            
 
                 Therefore, claimant has also failed to establish legal 
 
            causation and consequently has failed to prove he sustained 
 
            an injury that arose out of and in the course of his 
 
            employment.  Claimant shall take nothing from these 
 
            proceedings.
 
            
 
                                      order
 
            
 

 
            
 
            Page  15
 
            
 
            
 
            
 
            
 
                 Based on the conclusions of law previously stated, it 
 
            is ordered, therefore, that claimant shall take nothing as a 
 
            result of these proceedings.
 
            
 
                 Defendants shall pay the costs of this action, pursuant 
 
            to 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of July, 1991.
 
            
 
            
 
                                          ______________________________
 
                                          DEBORAH A. DUBIK
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies to:
 
            
 
            Mr William D Martin
 
            Attorney at Law
 
            420 Paramount Bldg
 
            Cedar Rapids IA 52401
 
            
 
            Mr. Thomas M Wertz
 
            Attorney at Law
 
            4089 21st Ave SW  Ste 114
 
            Cedar Rapids IA 52404
 

 
            
 
            Page  16
 
            
 
            
 
            
 
            
 
            
 
            Mr Greg Knoploh
 
            Ms Joanne Moeller
 
            Assistant Attorneys General
 
            Tort Claims
 
            Hoover Building
 
            Des Moines IA 50319
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1800; 2204
 
                      Filed July 18, 1991
 
                      Deborah A. Dubik
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            GERALD L. KUHL,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No.  821068
 
            IOWA MEDICAL CLASSIFICATION   :
 
            CENTER,                       :
 
                                          :    A R B I T R A T I O N
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            1800; 2204
 
            Claimant alleged mental/mental injury arising out of stress 
 
            from his relationship with his supervisor.
 
            Claimant was a living example of the "Peter Principle."  
 
            Claim for benefits denied.
 
            
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROLINA PRICE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 821082
 
            CHEROKEE MENTAL HEALTH        :
 
            INSTITUTE,                    :
 
                                          :        R E V I E W -
 
                 Employer,                :
 
                                          :      R E O P E N I N G
 
            and                           :
 
                                          :       D E C I S I O N
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              STATEMENT OF THE CASE
 
            
 
                 This is a proceeding in review-reopening brought by 
 
            Carolina Price, claimant, against her employer, Cherokee 
 
            Mental Health Institute, and the State of Iowa, as 
 
            defendants.  The matter came on for hearing before the 
 
            undersigned deputy industrial commissioner on March 4, 1992, 
 
            at Storm Lake, Iowa.
 
            
 
                 Claimant offered exhibits A through R, to which 
 
            defendants objected due to non-compliance with the fifteen 
 
            day rule as set out in the hearing assignment order, which 
 
            was filed on August 21, 1991.  Claimant argues that the 
 
            exhibit list and witness list were placed in the mail on 
 
            February 18, 1992, fifteen days prior to the hearing date.  
 
            Defendants submit the envelope containing the witness and 
 
            exhibit lists which has a postmark date of February 19, 
 
            1992.
 
            
 
                 The undersigned has carefully considered the argument 
 
            from both parties, and admits the evidence.  Specifically, 
 
            the proof of service stamps on both the witness and exhibit 
 
            lists certifies that a copy was served upon each attorney of 
 
            record on February 18, 1992.  This is the last day that 
 
            would comply with the fifteen day rule as set out in the 
 
            hearing assignment order, and claimant's exhibits A through 
 
            R are received.  Claimant's exhibits S, T, U were not 
 
            admitted as they were served less than 15 days prior to the 
 
            hearing.  Claimant's exhibits V, W and X were admitted 
 
            during the hearing.
 
            
 
                     
 
            
 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            findings of fact
 
            
 
                 Claimant, Carolina Price, was injured while working as 
 
            a custodial worker at the Mental Health Institute in 
 
            Cherokee, Iowa.  As claimant was helping a coworker move a 
 
            scrubbing machine, she fell backwards onto a pile of lumber.  
 
            The scrubbing machine fell on top of her and claimant 
 
            sustained an injury to her upper back.
 
            
 
                 Claimant was initially treated by Don Coser, M.D.  He 
 
            retired in May of 1986, and referred claimant to Patricia 
 
            Harrison, M.D., for further care (Claimant's Exhibit A).
 
            
 
                 Dr. Harrison treated claimant from 1986 through the 
 
            present.
 
            
 
                 In February of 1989, claimant entered into an agreement 
 
            for settlement regarding her work-related injuries due to 
 
            the accident on April 3, 1986.  The settlement allowed 
 
            claimant to receive an additional 50 weeks of benefits based 
 
            on a 10 percent functional impairment to the body as a whole 
 
            (Defendants' Exhibit 1).
 
            
 
                 The testimony of the vocational rehabilitationist was 
 
            considered.  Defendants were aware of her involvement and 
 
            could have taken steps to secure information.
 
            
 
                 In March of 1989, claimant had an acute flare-up of her 
 
            back and neck condition and was referred by Dr. Harrison to 
 
            a radiologist for an MRI.  The results of the MRI showed a 
 
            previously undiscovered herniated disc at C5-6 (Cl. Ex. G).  
 
            Claimant was referred to Quentin J. Durward, M.D., a 
 
            neurosurgeon.  He recommended a disc fusion operation, and 
 
            diskectomy was performed on May 1, 1989 (Def. Ex. 2, pp. 3-
 
            9).  During the next several months, claimant continued 
 
            treatment with Dr. Durward and was eventually admitted to 
 
            the Marion Health Center in Sioux City, Iowa, for a cervical 
 
            myelogram due to persistent neck and bilateral shoulder 
 
            pain.  The results of the myelogram showed excellent nerve 
 
            root, decompression and no underlying lesions (Def. Ex. 2, 
 
            pp. 13-15).
 
            
 
                 Claimant continued to complain of pain in the neck and 
 
            shoulders area and in the upper and lower back.  From 
 
            September 1989 through 1990, claimant has undergone physical 
 
            therapy, isokinetic therapy, myofascial pain blocks and a 
 
            plain clinic program to help her cope with the pain.  None 
 
            of the programs have provided long term relief (Def. Exs, 4, 
 
            6 and 7).  Claimant also continued to receive follow-up care 
 
            from Dr. Harrison (Cl. Ex. C).
 
            
 
                 In March of 1990, Dr. Durward formed the following 
 
            opinion:
 
            
 
                 My current diagnosis of Mrs. Prices' condition is 
 
                 that she has myofascial pain disorder causing 
 
                 chronic neck pain.  This was preceded by a 
 
                 cervical disk degeneration and rupture which has 
 
                 been successfully treated with surgical fusion.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                    Objectively I can find no reason why Mrs. Price 
 
                 cannot return to work in the custodial department 
 
                 of the Cherokee Mental Health Institute.  However, 
 
                 she has complains of such severe pain that she 
 
                 says she cannot return to work because of that.  
 
                 She also says that even sitting at a desk bent 
 
                 forward gives her severe neck pain so she cannot 
 
                 write.
 
            
 
                    I objectively do not understand why she has 
 
                 such persistent severe ongoing pain.  I felt that 
 
                 it would be reasonable to refer her to the pain 
 
                 clinic at the University of Nebraska for their 
 
                 opinion regarding diagnosis and consideration of 
 
                 treatment in the pain clinic program.
 
            
 
                    As far as having a permanent partial impairment 
 
                 rating, I would feel that she qualifies for a 20% 
 
                 impairment rating according to the scale of the 
 
                 American Academy of Orthopedic Surgeons.
 
            
 
            (Def. Ex. 2, p. 22)
 
            
 
                 In October of 1990, Dr. Durward revised his opinion:
 
            
 
                 She has been going through various psychological 
 
                 and physical therapeutic measures to help deal 
 
                 with this and accept it.  She feels she cannot 
 
                 return to any type of job.  She feels she has no 
 
                 stamina at all, and with any activity which she is 
 
                 at for more than 15 minutes she gets severe pain, 
 
                 e.g., cleaning windows.
 
            
 
                    ....
 
            
 
                    My own feeling is that nothing further 
 
                 surgically can be done to help her.  I think she 
 
                 does have a permanent partial impairment rating of 
 
                 15%, according to the AMA guidelines of the body 
 
                 as a whole.  I think probably she is not going to 
 
                 be able to find any occupation that does not 
 
                 exacerbate this pain and may not be able to work 
 
                 again.
 
            
 
            (Def. Ex. 2, p. 23)
 
            
 
                 Dr. Harrison was also of the opinion that claimant 
 
            would be unable to return to any type of work due to chronic 
 
            pain (Cl. Ex. E).  In May of 1991, Dr. Harrison concluded 
 
            that claimant had a permanent disability due to a diagnosis 
 
            of myofascial syndrome, and that claimant was unable to 
 
            perform any lifting, pushing, or repetitive movements of the 
 
            upper extremities (Cl. Ex. F).
 
            
 
                 Claimant has not worked since her operation in May of 
 
            1989.
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant is 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            entitled to additional permanent partial disability 
 
            benefits.
 
            
 
                 In a review-reopening proceeding, the claimant has the 
 
            burden of establishing that he has suffered an additional 
 
            impairment or lessening of his earning capacity as a 
 
            proximate result of the original injury, subsequent to the 
 
            date that the agreement for settlement which is now under 
 
            review was entered into.  Deaver v. Armstrong Rubber Co., 
 
            170 N.W.2d 455, 457 (Iowa 1969).  One cause for allowance of 
 
            additional compensation is when it is shown that facts 
 
            relative to an employment-connected injury existed, but were 
 
            unknown and could not have been discovered by the exercise 
 
            of reasonable diligence.  Gosek v. Garmer and Stiles Co., 
 
            158 N.W.2d 731 (Iowa 1968).  Review-reopening has been 
 
            allowed where the employee did not improve as much as had 
 
            been anticipated.  Meyers v. Holiday Inn of Cedar Falls, 
 
            Iowa, Iowa App., 272 N.W.2d 24 (1978).
 
            
 
                 In this case, claimant settled her case based upon any 
 
            initial diagnosis of a cervical strain with a final 
 
            diagnosis of cervical myofascial syndrome.  The terms of the 
 
            settlement provide that claimant was entitled to 50 weeks of 
 
            permanent partial disability benefits based on a 10 percent 
 
            permanent partial disability to the body as a whole.
 
            
 
                 Shortly after the agreement for settlement was signed, 
 
            claimant encountered an acute flare-up of her condition, and 
 
            was subsequently diagnosed with a herniated disc at the C5-6 
 
            level.  She underwent surgery to correct the same, and has 
 
            not had any type of employment since the surgery.  The 
 
            herniated disc had not been diagnosed at the time the 
 
            agreement for settlement was signed, and there is no showing 
 
            in the record that claimant knew she would need cervical 
 
            surgery.  The identification of the previously undiagnosed 
 
            cervical condition is clearly a sufficient change of 
 
            condition to warrant review-reopening and reconsideration of 
 
            claimant's award.
 
            
 
                 Claimant testified and it is corroborated by the 
 
            medical evidence that she continued to experience neck pain.  
 
            Both Dr. Harrison and Dr. Durward relate claimant's need for 
 
            the diskectomy to her April 1986 work accident.  It is 
 
            therefore determined that there has been a change of 
 
            condition which was proximately caused by the April 3, 1986 
 
            injury and that this change was not discoverable in the 
 
            exercise of reasonable diligence at the time the settlement 
 
            was entered into in February 1989.  Claimant's condition is 
 
            part of the injury which arose out of and in the course of 
 
            her employment on April 3, 1986.
 
            
 
                 As claimant has an impairment to the body as a whole, 
 
            her industrial disability will be analyzed.
 
            
 
                 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, expe
 
            rience and inability to engage in employment for which he is 
 
            fitted.  Olson v. Goodyear Service Stores, 255 Iowa 1112, 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            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 
 
            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).
 
            
 
                 At the time of the hearing, claimant was 58 years of 
 
            age, nearing retirement age.  Although it is speculative to 
 
            determine whether claimant would retire at age 62 or 65 or 
 
            any other particular age, retirement at some point in the 
 
            future is probable.
 
            
 
                 Claimant completed the eighth grade in school, and 
 
            retraining of any type would not be practical.
 
            
 
                 The medical evidence supports the conclusion that 
 
            claimant's physical condition has deteriorated, and this was 
 
            observed at the hearing.  However, Dr. Durward, who 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            performed the diskectomy, could find no objective reasons 
 
            why claimant continued to have the severe limiting pain.  He 
 
            did, however, increase her functional impairment from the 10 
 
            percent at the time of the agreement for settlement to 15 
 
            percent.  Due to the restrictions imposed by Dr. Harrison, 
 
            claimant has sustained a substantial loss of access to the 
 
            employment market.  However, claimant has not shown a great 
 
            amount of motivation to re-enter the labor market.  After 
 
            considering all of the pertinent factors of industrial 
 
            disability, it is found that claimant has sustained an 
 
            additional 30 percent permanent partial disability.  This 
 
            entitles her to receive 150 weeks of compensation.
 
            
 
                 Defendants also raise the issue of whether claimant is 
 
            entitled to additional medical benefits pursuant to Iowa 
 
            Code section 85.27.
 
            
 
                 According to the prehearing report submitted by the 
 
            parties prior to the hearing, defendants argue that medical 
 
            expenses incurred were not reasonable and necessary, that 
 
            the medical expenses were not causally connected to the work 
 
            injury, and that the expenses were unauthorized.
 
            
 
                 The undersigned finds no merit in any of these 
 
            arguments.  Specifically, Dr. Harrison, who was claimant's 
 
            authorized treating physician at the time of the agreement 
 
            for settlement, continued in that capacity once the 
 
            agreement was signed.  Additionally, Dr. Harrison referred 
 
            claimant to Dr. Durward, but in so doing did not relinquish 
 
            her care of claimant.  Likewise, each and every physical 
 
            therapist or institution which provided claimant with some 
 
            type of service was authorized based on Dr. Harrison's or 
 
            Dr. Durward's referral.
 
            
 
                 The medical evidence supports a finding that the 
 
            treatment given claimant was to provide her with relief for 
 
            the cervical neck problem.  Therefore, it is concluded that 
 
            claimant is entitled to medical benefits.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendants shall pay claimant forty-four point 
 
            four two nine (44.429) weeks of healing period benefits at 
 
            the rate of one hundred fifty-four and 09/100 dollars 
 
            ($154.09) per week beginning April 24, 1989, as stipulated 
 
            to at the hearing.
 
            
 
                 That defendants shall pay claimant one hundred fifty 
 
            (150) weeks of permanent partial disability benefits at the 
 
            rate of one hundred fifty-four and 09/100 dollars ($154.09) 
 
            per week beginning March 1, 1990.
 
            
 
                 That defendants shall pay the costs of claimant's 
 
            medical treatment, as provided by Iowa Code section 85.27.
 
            
 
                 That defendants shall pay accrued weekly benefits in a 
 
            lump sum and shall receive credit against the award for 
 
            weekly benefits previously paid.
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            
 
                 That defendants shall pay interest on benefits awarded 
 
            herein as set forth in Iowa Code section 85.30.
 
            
 
                 That defendants shall pay the costs of this action, 
 
            pursuant to rule 343 IAC 4.33.
 
            
 
                 That defendants shall file an activity report upon 
 
            payment of this award as required by this agency, pursuant 
 
            to rule 343 IAC 3.1.
 
            
 
                 Signed and filed this ____ day of April, 1992.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr John D Loughlin
 
            Attorney at Law
 
            231 W Maple St
 
            P O Box 398
 
            Cherokee IA 51012
 
            
 
            Ms Shirley Steffe
 
            Assistant Attorney General
 
            Tort Claims
 
            Hoover Building
 
            LOCAL
 
            
 
            
 
                 
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                          5-1803
 
                                          Filed April 23, 1992
 
                                          Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            CAROLINA PRICE,               :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 821082
 
            CHEROKEE MENTAL HEALTH        :
 
            INSTITUTE,                    :
 
                                          :        R E V I E W -
 
                 Employer,                :
 
                                          :      R E O P E N I N G
 
            and                           :
 
                                          :       D E C I S I O N
 
            STATE OF IOWA,                :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1803
 
            Claimant, on review-reopening, showed change of condition 
 
            not contemplated at the time of the original agreement for 
 
            settlement.
 
            Claimant underwent a diskectomy of the cervical spine.  She 
 
            has an eighth grade education and few transferable skills.
 
            She was awarded 30% industrial disability based on age 58 
 
            and other relevant factors.
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELIZABETH ROMINE,
 
         
 
              Claimant,                              File No. 821106
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         JOB SERVICE OF IOWA,                        D E C I S I O N
 
         
 
              Employer,
 
                                                       F I L E D
 
         and
 
                                                       JAN 27 1989
 
         STATE OF IOWA,
 
                                             IOWA INDUSTRIAL COMMISSIONER
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Elizabeth 
 
         Romine, claimant, against Job Service of Iowa, an agency of the 
 
         State of Iowa, self-insured, for workers' compensation benefits 
 
         as a result of an alleged injury on April 10, 1986.  On June 22, 
 
         1988, a hearing was held on claimant's petition and the matter 
 
         was considered fully submitted at the close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony was received during the hearing from claimant and Bill 
 
         Griencewic, claimant's former supervisor.  The exhibits received 
 
         into the evidence at the hearing are listed in the prehearing 
 
         report. According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1.  On April 10, 1986, claimant received an injury which 
 
         arose out of and in the course of her employment.
 
         
 
              2.  The injury is a cause of temporary and permanent 
 
         disability.
 
         
 
              3.  Claimant's rate of weekly compensation in the event of 
 
         an award of weekly benefits from this proceeding shall be $234.15 
 
         per week.
 
         
 
              4.  Claimant is entitled to healing period benefits for at 
 
         least a period from April 10, 1986 through July 6, 1986 except 
 
         for a two week period beginning on June 2, 1986 through June 13, 
 
         1986. This two week period is in dispute.
 
         
 
              5.  All requested medical benefits have been or will be paid 
 
                                                
 
                                                         
 
         by defendants.
 
         
 
                                   ISSUE
 
         
 
              The only issue submitted by the parties for determination in 
 
         this proceeding is the extent of claimant's entitlement to weekly 
 
         benefits for disability and for additional benefits for an 
 
         alleged unreasonable non-payment of any permanent disability 
 
         benefits prior to the hearing.
 
         
 
                          SUMMARY OF THE EVIDENCE
 
         
 
              Pursuant to an order of the undersigned, each party was to 
 
         prepare and file a "Statement of Facts Relied Upon" to simplify 
 
         the writing of this decision.  Apparently, the parties 
 
         misunderstood the directive.  Claimant submitted a listing of 
 
         legal and factual points relied upon.  Defendant submitted a 
 
         proposed findings of facts.  At any rate, the entire record was 
 
         reviewed independently and considered in arriving at this 
 
         decision.  The following is a brief overview of the more 
 
         pertinent evidence.  Conclusions contained in the following 
 
         summary should be treated as preliminary findings of fact.
 
         
 
              Claimant is 55 years of age and a high school graduate.  At 
 
         the time of the injury, she was working as a job service 
 
         interviewer and she continues in this employment at the present 
 
         time.  This job is mostly office type work and involves sitting 
 
         for prolonged periods of time.
 
         
 
              On April 10, 1986, claimant accidentally collided with an 
 
         exceptionally large fellow worker and fell to the floor 
 
         fracturing her right upper femur just below the femur head.  The 
 
         femur head forms the ball of the "ball and socket" hip joint.  
 
         Claimant was hospitalized and underwent immediate reduction 
 
         surgery which included the insertion of supportive screws into 
 
         the femur to secure the bone for proper healing.  After release 
 
         from the hospital, claimant underwent a six week convalescent 
 
         period using a walker and later a cane.  Claimant's primary 
 
         treating physician was Mark Wheeler, M.D., an orthopedic surgeon.  
 
         Dr. Wheeler released claimant to return to work on Tuesday, May 
 
         27, 1986 with restrictions against prolonged standing, walking, 
 
         bending or lifting.  Claimant testified that she returned to work 
 
         at that time but after a full eight-hour day she was exhausted.  
 
         She said that she then attempted to call Dr. Wheeler but due to 
 
         his absence from the office she discussed the matter with his 
 
         associate. Claimant said that she was told by the associate that 
 
         she "over did" her return to work and to "take it easy" by 
 
         working half days if she could.  Claimant then worked half days 
 
         on the following Wednesday and Thursday but failed to report for 
 
         work on Friday.
 
         
 
              Claimant then left on a trip to North Carolina with her 
 
         husband and some friends to attend a two week "PTL" convention 
 
         which claimant stated had been planned since January, 1986. 
 
         Claimant said that she called Dr. Wheeler's office on Monday from 
 
                                                
 
                                                         
 
         North Carolina complaining that her work activity the week before 
 
         had overly fatigued her.  After this message was relayed to Dr. 
 
         Wheeler he took claimant completely off work until the end of the 
 
         month.  Claimant returned from North Carolina on June 13, 1986.
 
         
 
              Claimant testified that she had discussed this North 
 
         Carolina trip with Dr. Wheeler before leaving and that Dr. 
 
         Wheeler approved of the plans because she would ride in the rear 
 
         of the van which had a bed available for resting.  When told of 
 
         claimant's travel activities by defendant, at first Dr. Wheeler 
 
         stated that he was unaware of such activity and would not have 
 
         extended her medical leave had he known.  There had been no 
 
         mention of such a trip in any of Dr. Wheeler's prior office 
 
         notes.  However, in his deposition taken in May, 1988, Dr. 
 
         Wheeler said that after talking with claimant he now remembers 
 
         discussing a trip of some sort with claimant before June, 1986 
 
         and that claimant's account of the incident is substantially 
 
         correct.  Contrary to what he has stated in writing earlier, Dr. 
 
         Wheeler said that the knowledge of claimant's travel activities 
 
         on June 2, 1986 would not have changed his mind concerning the 
 
         leave extension.  He states that claimant had returned to work 
 
         too quickly after major surgery.  He added that being on a trip 
 
         to North Carolina would still be restful and a part of the 
 
         healing process.
 
         
 
              Claimant returned to work half days on July 7, 1986 and to 
 
         full duty without restrictions on August 8, 1986.  Claimant 
 
         continues to work in the same job as before for Job Service. 
 
         Claimant's supervisor testified that claimant made no complaints 
 
         to him at any time that her job was difficult for her to 
 
         physically perform.
 
         
 
              Dr. Wheeler originally opined that claimant had a 10 percent 
 
         permanent partial impairment to the body as a whole from the 
 
         fractured hip but later changed his opinion to include a 10 
 
         percent rating to the lower extremity after consulting the AMA 
 
         Guides.  Claimant was also evaluated by John J. Dougherty, M.D., 
 
         another orthopedic surgeon, who likewise rated claimant's 
 
         impairment at five percent of the lower extremity but states that 
 
         Dr. Wheeler's 10 percent rating is reasonable but "a little bit 
 
         high."  Neither doctor found any arthritis or necrosis problems 
 
         following the healing of the fracture.  Dr. Wheeler explained his 
 
         impairment rating in his deposition.  Dr. Wheeler testified that 
 
         although the fracture was to the femoral neck just below the 
 
         head, his impairment rating was based upon a loss of range of 
 
         motion to the hip joint.  He stated that he observed radiographic 
 
         changes to the hip and states in his deposition as follows on 
 
         page 31 beginning on line 9:
 
         
 
              A.  Yes.  Most likely the loss of motion is due to scarring 
 
              from the surgery from the fracture in that hip joint from 
 
              where that break occurred in the top of the femur or the 
 
              femoral head.
 
         
 
              Claimant testified that her past employment primarily 
 
                                                
 
                                                         
 
         consisted of office clerical work and a responsible position as 
 
         an assistant branch manager of a bank.  Although claimant's age 
 
         and lack of formal education beyond high school would indicate a 
 
         limited potential for vocational rehabilitation, no such 
 
         rehabilitation is necessary as claimant has returned to work in 
 
         the same job as she was performing at the time of the injury.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              The first issue is whether the injury is to the body as a 
 
         whole or whether the injury is limited to the schedule for an 
 
         injury to the leg or lower extremities.  It is settled that a hip 
 
         joint is not included in the leg schedule of Iowa Code section 
 
         85.34(2)(o).  Lauhoff Grain v. McIntosh, 395 N.W.2d 834, 839 
 
         (Iowa 1986).  Involvement of the femur head which forms the ball 
 
         of the "ball and socket" hip joint is an injury to the body as a 
 
         whole under Iowa Code section 85.34(2)(u).
 
         
 
              In the case sub judice, the statements of Dr. Wheeler in his 
 
         deposition clearly relate an injury to the hip joint with 
 
         scarring involvement of the femur head resulting in a loss of 
 
         motion or rotation of the hip joint.  Therefore, claimant has 
 
         clearly established an injury to the body as a whole, not an 
 
         injury to the lower extremity despite the ratings of the 
 
         physicians in this case.
 
 
 
                           
 
                                                         
 
         
 
              Claimant must establish by a preponderance of the evidence 
 
         the extent of weekly benefits for permanent disability to which 
 
         claimant is entitled.  As the claimant has shown that the work 
 
         injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34(2)(u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a body member.  A disability to the body as a 
 
         whole or an "industrial disability" is a loss of earning capacity 
 
         resulting from the work injury.  Diederich v. Tri-City Railway 
 
         Co., 219 Iowa 587, 593, 258 N.W. 899, (1935).  A physical 
 
         impairment or restriction on work activity may or may not result 
 
         in such a loss of earning capacity.  The extent to which a work 
 
         injury and a resulting medical condition has resulted in an 
 
         industrial disability is determined from examination of several 
 
         factors. These factors include the employee's medical condition 
 
         prior to the injury, immediately after the injury and presently; 
 
         the situs of the injury, its severity and the length of healing 
 
         period; the work experience of the employee prior to the injury, 
 
         after the injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 
 
         125.N.W.2d 251, 257 (1963).  See Peterson v. Truck Haven Cafe, 
 
         Inc., (Appeal Decision, February 28, 1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent.  She had no functional impairments or ascertainable 
 
         disabilities other than chronic ear infections which occasionally 
 
         affected her hearing.  Claimant was able to fully perform the 
 
         physical tasks of her work involving repetitive light lifting, 
 
         bending, twisting, walking, stooping and prolonged standing and 
 
         sitting.
 
         
 
              Claimant's treating physician, Dr. Wheeler, has given 
 
         claimant a significant permanent partial impairment ratings.  Dr. 
 
         Wheeler gives a 10 percent permanent partial impairment rating to 
 
         the lower extremity but fails to convert this to the body as a 
 
         whole.  Dr. Dougherty likewise rates claimant's disability as 
 
         five percent loss to the lower extremity.  Dr. Wheeler's views 
 
         are given the most weight due to the fact that he is the treating 
 
         physician and has the most clinical involvement with claimant.  
 
         He testified that he used the AMA Guidelines in arriving at the 
 
         rating.  Using these guidelines, the undersigned finds that a 10 
 
         percent loss of use to the lower extremity converts to a four 
 
         percent impairment to the whole person.
 
         
 
              Claimant's physicians have not significantly restricted 
 
                                                
 
                                                         
 
         claimant's work activities and she has returned to work without 
 
         difficulty.  Claimant's current employment is suitable and 
 
         stable. Claimant has not suffered a loss of actual earnings.  
 
         However, a showing that claimant has no loss of actual earnings 
 
         does not preclude a finding of industrial disability.  See 
 
         Michael v. Harrison County, Thirty-fourth Biennial Report, Iowa 
 
         Industrial Commissioner 218, 220 (Appeal Decision 1979).
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a ten percent loss of 
 
         her earning capacity from the work injury.  Based upon such 
 
         finding, claimant is entitled as a matter of law to 50 weeks of 
 
         permanent partial disability benefits under Iowa code section 
 
         85.34(2)(u) which is four percent of 500 weeks, the maximum 
 
         allowable number of weeks for an injury to the body as a whole in 
 
         that subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant is entitled to weekly benefits for healing 
 
         period under Iowa Code section 85.34 from the date of injury 
 
         until claimant returns to work or until she is medically capable 
 
         of returning to substantially similar work she was performing at 
 
         the time of the injury.
 
         
 
              The only dispute with reference.to healing period is the two 
 
         week period claimant attended the PTL conference in North 
 
         Carolina.  Defendant has not paid benefits for this period of 
 
         time.  The undersigned believes that defendant is correct in not 
 
         paying such benefits.  Although Dr. Wheeler was very supportive 
 
         in his deposition comments with reference to how restful 
 
         attending a convention can be, the undersigned simply cannot 
 
         ignore the fact that claimant rather too conveniently became so 
 
         fatigued that she could not work in any capacity at the same time 
 
         she was on her way to a two week convention trip to North 
 
         Carolina.  Claimant was simply not credible in this matter.  
 
         Therefore, on the whole record claimant has failed to demonstrate 
 
         that she was incapable of returning to work in any capacity from 
 
         June 2, 1986 through June 13, 1986 and healing period benefits 
 
         are denied for this period of time.
 
         
 
              Claimant seeks additional benefits for failure to pay any 
 
         amount of permanent disability benefits prior to hearing despite 
 
         the opinions of two physicians that claimant suffered some degree 
 
         of permanent partial impairment.  As set forth above, functional 
 
         loss does not equate to industrial loss or loss of earning 
 
         capacity.  This claim for additional benefits must be denied.  It 
 
         is reasonable to take the position in industrial cases such as 
 
         the one at bar that claimant suffered no loss of earning capacity 
 
         when claimant returned to work without restrictions to the same 
 
         job with no loss of earnings.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  From her appearance and demeanor while testifying, 
 
         claimant was not found credible on the events leading up to her 
 
                                                
 
                                                         
 
         trip to North Carolina to attend a PTL conference when she 
 
         claimed that she was so fatigued that she could not work in any 
 
         capacity or for any length of time.
 
         
 
              2.  The work injury of April 10, 1986, consisting of a 
 
         fracture to the femoral neck of the right femur was a cause of a 
 
         period of total disability from work beginning on April 10, 1986 
 
         and ending on July 7, 1986 except for a brief return to work from 
 
         May 27 through May 29, 1986 and a two week period from June 2, 
 
         1986 through June 13, 1986.
 
         
 
              3.  The work injury of April 10, 1986, was a cause of a four 
 
         percent permanent partial impairment to the body as a whole due 
 
         to a loss of range of motion to the right hip joint.  The surgery 
 
         performed to prepare the fracture caused scar tissue to develop 
 
         on the femoral head effecting its capacity to rotate within the 
 
         hip socket and therefore the hip joint is a part of the injury 
 
         process in this case.
 
         
 
              4.  The work injury of April 10, 1986, and the resulting 
 
         permanent partial impairment was a cause of a ten percent loss of 
 
         earning capacity.  Claimant has a significant impairment but has 
 
         no loss of earnings and no significant work restrictions and is 
 
         able to perform her current work.  However, claimant has suffered 
 
         a loss of mobility to her hip which effects her capacity to 
 
         perform other more physically demanding occupations.
 
         
 
                             CONCLUSION OF LAW
 
         
 
              Claimant has established under law entitlement to the 
 
         specific disability benefits awarded below.
 
         
 
                                  ORDER
 
         
 
              1.  Defendant shall pay to claimant fifty (50) weeks of 
 
         permanent partial disability benefits at the rate of two hundred 
 
         thirty-four and 15/100 dollars ($234.15) per week from July 7, 
 
         1986.
 
         
 
              2.  Defendant shall pay to claimant healing period benefits 
 
         from April 10, 1986 through July 6, 1986 at the rate of two 
 
         hundred thirty-four and 15/100 dollars ($234.15) per week except 
 
         for the period from May 27 through May 29, 1986 and from June 2 
 
         through June 13, 1986.
 
         
 
              3.  Defendant shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for weekly 
 
         benefits previously paid.
 
         
 
              4.  Defendant shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
              5.  Defendant shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
                                                
 
                                                         
 
              6.  Defendant shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 27th day of January, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            LARRY P. WALSHIRE
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P. 0. Box 1194
 
         Sioux City, Iowa  51102
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa  50319
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1802; 1803.1
 
                                                 Filed January 27, 1989
 
                                                 LARRY P. WALSHIRE
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELIZABETH ROMINE,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                 File No. 821106
 
         JOB SERVICE OF IOWA,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         1802; 1803.1
 
         
 
              It is found, due to the fact that the treating physician 
 
         found involvement of scar tissue in the operation of the femoral 
 
         head of the hip joint, a body as a whole injury was found to 
 
         exist and claimant's disability was evaluated industrially.  
 
         However, only ten percent industrial disability was awarded as 
 
         claimant has returned to her former job.  Healing period benefits 
 
         were denied to claimant when she obtained an extension of her 
 
         healing period when she attended a PTL convention in the State of 
 
         North Carolina. At the time claimant had called her doctor while 
 
         in North Carolina complaining that she was too fatigued to return 
 
         to work, but at the same time felt perfectly able to travel by 
 
         automobile to North Carolina to attend a two week convention.  
 
         Claimant failed to show that she was not capable of returning to 
 
         work during the two week period and healing period benefits were 
 
         denied.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         ELIZABETH ROMINE,
 
         
 
              Claimant,
 
         vs.                                       File No. 821106
 
         
 
         JOB SERVICE OF IOWA,                        O R D E R
 
         
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
               Defendants.
 
         
 
         
 
         
 
              As pointed out by defense counsel, a typographical error 
 
         appears in the arbitration decision filed on January 27, 1989 on 
 
         page 5, 6 lines from the bottom.  The decision is modified to 
 
         read, "which is ten percent of 500 weeks."
 
         
 
         
 
              Signed and filed this 17th day of February, 1989.
 
         
 
         
 
         
 
         
 
                                           LARRY P. WALSHIRE
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Harry H. Smith
 
         Attorney at Law
 
         P. O. Box 1194
 
         Sioux City, Iowa 51102
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Hoover State Office Bldg.
 
         Des Moines, Iowa 50319
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID SCOTT RIDER,                           File No. 821297
 
         
 
              Claimant,                            A R B I T R A T I O N
 
         
 
         vs.                                          D E C I S I O N
 
         
 
         D.M. CLARK ENGINEERING,                         F I L E D
 
         
 
              Employer,                                 JUN 27 1989
 
              Defendant
 
                                              IOWA INDUSTRIAL 
 
                                              COMMISSIONER
 
         
 
         
 
              This is a proceeding in arbitration brought by David Rider, 
 
         claimant, against D.M. Clark, employer, to recover benefits under 
 
         the Iowa Workers' Compensation Act for an alleged injury of 
 
         December 12, 1985.  This matter was to come on for hearing June 
 
         13, 1989, at 3:00 p.m., in the county courthouse located in Sioux 
 
         City, Iowa.
 
         
 
              An examination of the industrial commissioner's file reveals 
 
         an original notice and petition was filed June 19, 1986 and no 
 
         answer was filed by defendant thereto.  On November 3, 1986, 
 
         defendant was ordered to show cause within twenty days of the 
 
         filing of the order as to why the record should not be closed to 
 
         further activity or evidence by defendant pursuant to Division of 
 
         Industrial Services Rule 343-4.36.  No response was filed to the 
 
         order and on December 10, 1986 an order was entered closing the 
 
         record in such a manner.
 
         
 
              A prehearing conference was held December 28, 1988 with 
 
         claimant's counsel participating and the matter was set for 
 
         hearing as stated above.  On June 9, 1989, the department 
 
         received correspondence from claimant's counsel which stated, in 
 
         part:
 
         
 
                   I have just received a letter from David Rider asking 
 
              that I retire as his attorney inasmuch as he wants to turn 
 
              his case over to another attorney.
 
         
 
                   While this matter has not been finalized as yet, it is 
 
              essential that the compensation hearing be rescheduled for a 
 
              later time inasmuch as evidently he does not want me to 
 
              represent him at this hearing.  This should not be a problem 
 
              as D. M. Clark has never filed an appearance nor responded 
 
              to any of the previous hearings.
 
         
 
                   I am sending a copy of this to David Rider at the 
 
              address he gave me, which is c/o Virgil Rider, Rt. #1, Box 
 
              76, Westfield, Iowa 51062.
 
         
 
                                                
 
                                                         
 
              Claimant's motion to continue was denied on June 12, 1989, 
 
         on the basis that:  "Claimant [sic] desire to obtain new counsel 
 
         immediately prior to hearing is insufficient reason to continue 
 
         this matter."
 
         
 
              The undersigned was present at the scheduled hearing time. 
 
         Claimant's counsel was present to renew his motion to continue 
 
         and to move that the allegations of the petition and pleadings be 
 
         admitted.  There was no appearance on behalf of defendant.
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury which arose out of and in the 
 
         course of his employment.  McDowell v. Town of Clarksville, 241 
 
         N.W.2d 904 (Iowa 1976).
 
         
 
              Claimant failed to present any evidence in support of the 
 
         allegations found in his original notice and petition.
 
         
 
         
 
              WHEREFORE, it is found:
 
         
 
              1.  Neither claimant nor defendant appeared at the scheduled 
 
         time and place of hearing.
 
         
 
              2.  The undersigned deputy industrial commissioner was 
 
         present and prepared to proceed to hearing.
 
         
 
              3.  Counsel for claimant appeared to renew a motion to 
 
         continue which had previously been denied and to move that the 
 
         allegations presented in the original notice and petition be 
 
         deemed admitted.
 
         
 
              4.  Claimant failed to present any evidence to support 
 
         allegations of a compensable work injury.
 
         
 
              THEREFORE, it is concluded:
 
         
 
              Claimant has failed to meet his burden of proof that he 
 
         sustained an injury which arose out of and in the.course.of his 
 
         employment.
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Claimant take nothing from this proceeding.
 
         
 
              Costs are assessed against claimant pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              Signed and filed this 27th day of June, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                                
 
                                                         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Ronald E. Runge
 
         Attorney at Law
 
         236 Davidson Bldg.
 
         Sioux City, IA  51101
 
         
 
         D M Clark Engineering
 
         2188 SE Spruce St
 
         Hillsboro, OR  97123
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51400; 51402
 
                                            Filed June 17, 1989
 
                                            Deborah A. Dubik
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         DAVID SCOTT RIDER,
 
         
 
              Claimant,
 
                                                     File No. 821297
 
         vs.
 
         
 
         D.M. CLARK ENGINEERING,                  A R B I T R A T I 0 N
 
         
 
              Employer,                              D E C I S I 0 N
 
              Defendant
 
         
 
         
 
         51400; 51402
 
         
 
              Claimant failed to appear at hearing.  No evidence in 
 
         support of allegations of a compensable work injury was presented 
 
         and claimant therefore failed to meet his burden of proof.
 
         
 
         
 
         
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                
 
 
         
 
         Page   1
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         before the iowa industrial commissioner
 
         ____________________________________________________________
 
                   :
 
         GERALDINE L. PRATT, :
 
                   :
 
              Claimant, :
 
                   :
 
         vs.       :
 
                   :         File No. 821303
 
         JIM RATLIFF and MARK CODEY    :
 
         d/b/a HARVEST INN a/k/a       :      A R B I T R A T I O N
 
         THUMBS RESTAURANT,  :
 
                   :         D E C I S I O N
 
              Employer, :
 
                   :
 
         and       :
 
                   :
 
         U.S.F. & G.,   :
 
                   :
 
              Insurance Carrier,  :
 
              Defendants.    :
 
         ___________________________________________________________
 
         
 
         statement of the case
 
         This is a proceeding in arbitration upon the petition of 
 
         claimant, Geraldine L. Pratt, against her employer, Jim Ratliff 
 
         and Mark Codey, d/b/a Harvest Inn a/k/a Thumbs Restaurant, and 
 
         their insurance carrier, U.S.F. & G., defendants.  The case was 
 
         heard in Council Bluffs, Iowa on May 3, 1990.  The record 
 
         consists of the testimony of claimant, the testimony of 
 
         claimant's spouse, Alfred J. Pratt, as well as the testimony of 
 
         Paula Freeman, rehabilitation specialist.  The record also 
 
         consists of joint exhibits 1-70 and claimant's exhibit A.
 
         issues
 
         The issues to be determined are:  1) whether claimant is entitled 
 
         to temporary disability/healing period benefits or permanent 
 
         partial disability benefits; and 2) whether claimant is entitled 
 
         to medical benefits pursuant to section 85.27.
 
         findings of fact
 
         The deputy, having heard the testimony and considered all the 
 
         evidence, finds:
 
         At the time of the hearing, claimant was 55 years old and 
 
         married.  She commenced her employment at the Thumbs Restaurant 
 
         in 1982.  On March 8, 1986, the date of the work injury, the 
 
         defendants owned the business establishment.  Claimant slipped on 
 
         water as she was exiting from the kitchen.  She tried to catch 
 
         herself, twisted her back and "did the splits."
 
         Following her injury, claimant sought the services of numerous 
 

 
         
 
         Page   2
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         medical practitioners.  First, she sought chiropractic treatment 
 
         from J. Jeffrey Mallory, D.C.  He treated her for lumbosacral 
 
         problems.
 
         Then she sought care from Anil K. Agarwal, M.D., an orthopedist.  
 
         He diagnosed claimant as having "[t]rochanteric bursitis, left 
 
         hip.  Asymptomatic L3-L4 disc - unrelated to the accident...."  
 
         Dr. Agarwal opined that claimant did not have any permanent 
 
         impairment.  He also opined claimant could return to work as of 
 
         July 2, 1986.  Dr. Agarwal additionally opined:
 
         The etiology of this trochanteric bursitis:  any strain, trauma, 
 
         or sometimes without trauma, can lead to inflammation of the 
 
         trochanteric bursa.  It would be very speculative to say whether 
 
         this was the result of Mrs. Pratt's fall or not.
 
         Claimant sought treatment from her internist, David A. Jasper, 
 
         M.D.  He had treated claimant for an auto accident in 1982.  In 
 
         November of 1986, he treated claimant for this accident.  Dr. 
 
         Jasper opined in December of 1986:
 
         We feel that Geraldine Pratt's trochanteric bursitis was not 
 
         caused by the accident.  One could make some argument for the 
 
         fact that she has a significant back problem and has to favor her 
 
         back.  This may have caused her to perhaps walk differently and 
 
         sustain the trochanteric bursitis, but this would only be 
 
         speculative.  We believe the trochanteric bursitis is not related 
 
         to her accident.  There should be no permanent damage from this 
 
         problem and she should finish treatment for this at the beginning 
 
         of January.
 
         Later, Dr. Jasper changed his diagnosis to acute post-traumatic 
 
         back strain.  He also noted claimant was having problems with her 
 
         face, neck, back, left leg and left foot.  He opined claimant had 
 
         a 15 percent permanent partial impairment.
 
         In November of 1986, claimant was seen by another orthopedist, 
 
         Timothy C. Fitzgibbons, M.D.  The orthopedist diagnosed claimant 
 
         as having:
 
         1.  Post-traumatic lumbosacral strain, with questionable left 
 
         lower extremity radiculopathy.
 
         2.  Probable bilateral chronic trochanteric bursitis.
 
         Dr. Fitzgibbons causally related claimant's symptoms to her work 
 
         injury of March 8, 1986.
 
         Dr. Edward Schima, M.D., a neurologist, conducted an EMG.  With 
 
         respect to the left lower extremity, the results were normal.
 
         On February 27, 1987, Dr. Fitzgibbons injected both trochanteric 
 
         bursae with Xylocaine, Marcaine, and Depo-Medrol.  No long-term 
 
         effects were evidenced.  He rated claimant as having a five 
 
         percent permanent partial impairment to the body as a whole.
 
         Claimant then sought the services of a neurosurgeon, Maurice P. 
 
         Margules, M.D.  A myelogram was performed.  The results were 
 
         negative.  Dr. Margules diagnosed claimant as having 
 
         "post-traumatic neuralgia of the lateral cutaneous nerve of the 
 
         thigh, left."  As a result of that diagnosis, claimant had a 
 
         decompression of the lateral cutaneous nerve of the thigh, left.
 
         As of September 24, 1987, Dr. Margules determined claimant had 
 

 
         
 
         Page   3
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         reached maximum medical improvement.  Initially, Dr. Margules 
 
         rated claimant as having a five percent permanent partial 
 
         impairment.  Later, Dr. Margules modified his rating to reflect a 
 
         10-15 percent body as a whole rating.  Dr. Margules also 
 
         restricted claimant to sedentary-type of employment.  She was not 
 
         to return to waitress work.
 
         Pursuant to a referral to Leonard E. Weber, M.D., neurologist, 
 
         electrical testing was conducted.  Dr. Weber opined claimant 
 
         suffered from:
 
         1.  Partial injury of the left lateral femoral cutaneous nerve of 
 
         the left thigh.
 
         2.  Persistent pain and sensory change on the lateral aspect of 
 
         the left thigh, secondary to (1).
 
         3.  Mild discomfort of left sacroiliac joint origin.
 
         4.  Functional overlay on sensory testing in the left lower 
 
         extremity from the knee down (but the lateral femoral cutaneous 
 
         territory sensory changes are likely organic).
 
         Dr. Weber rated claimant as having an eight percent permanent 
 
         impairment to the left lower extremity.  He released claimant for 
 
         training, on the job training, or work activity.  However, Dr. 
 
         Weber restricted claimant from bending or prolonged walking more 
 
         than an hour.  He also indicated that if claimant underwent a 
 
         left lateral femoral cutaneous neurectomy, claimant would have no 
 
         limitations on her activities.  Claimant refused the neurectomy.
 
         Finally, claimant began experiencing difficulties with her left 
 
         foot, left first and second toes.  Collagen vascular disease and 
 
         arthritis were ruled out as causing the problems.  The original 
 
         foot complaints predated the date of the injury.
 
         After Dr. Margules released claimant for retraining, Paula K. 
 
         Freeman, of Quality Rehabilitation Services, was hired by 
 
         defendant insurance carrier to provide vocational rehabilitation.  
 
         Ms. Freeman made numerous requests of claimant and her attorneys 
 
         to provide rehabilitation.  Ms. Freeman's efforts were 
 
         unsuccessful.  At the time of the hearing, claimant had not 
 
         returned to work.
 
         conclusions of law
 
         The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory. The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         An injury to a scheduled member may, because of after effects (or 
 
         compensatory change), result in permanent impairment of the body 
 
         as a whole.  Such impairment may in turn form the basis for a 
 
         rating of industrial disability.  Dailey v. Pooley Lumber Co., 
 
         233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup, 222 Iowa 272, 268 
 
         N.W. 598 (1936).
 
         An injury to a scheduled member which, because of after-effects 
 
         (or compensatory change), creates impairment to the body as a 
 

 
         
 
         Page   4
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         whole entitles claimant to industrial disability.  Barton v. 
 
         Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961).  Daily, 
 
         233 Iowa 758, 10 N.W.2d 569 (1943).
 
         An injury is the producing cause; the disability, however, is the 
 
         result, and it is the result which is compensated.  Barton, 253 
 
         Iowa 285, 110 N.W.2d 660 (1961); Dailey, 233 Iowa 758, 10 N.W.2d 
 
         569 (1943).
 
         If a claimant contends he has industrial disability he has the 
 
         burden of proving his injury results in an ailment extending 
 
         beyond the scheduled loss.  Kellogg v. Shute and Lewis Coal Co., 
 
         256 Iowa 1257, 130 N.W.2d 667 (1964).
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963).  
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 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 
 

 
         
 
         Page   5
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         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).
 
         For example, a defendant employer's refusal to give any sort of 
 
         work to a claimant after he suffers his affliction may justify an 
 
         award of disability.  McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181 (Iowa 1980).
 
         Similarly, a claimant's inability to find other suitable work 
 
         after making bona fide efforts to find such work may indicate 
 
         that relief would be granted.  McSpadden, 388 N.W.2d 181 (Iowa 
 
         1980).
 
         In the case before this deputy, claimant has proven by a 
 
         preponderance of the evidence that she has sustained a permanent 
 
         partial disability to the body as a whole and not just a 
 
         permanent impairment to the left lower extremity.
 
         Claimant has injured her left leg, her hip is affected and her 
 
         lumbosacral spine, as well.  When Dr. Margules performed his 
 
         decompression of the lateral cutaneous nerve of the thigh, he 
 
         performed the following:
 
         A linear vertical incision was placed, centered over the anterior 
 
         and superior iliac spine.  The incision was carried through the 
 
         superficial layer until the bony structures of the anterior and 
 
         superior iliac spine was exposed.  The lateral cutaneous nerve of 
 
         the thigh was then exposed after blunt dissection and the nerve 
 
         was well visualized as it came out of the pelvis onto the thigh, 
 
         covered by ligament which was completely transected.  The lateral 
 
         insertion of the inguinal ligament was then completely transected 
 
         and the nerve was well decompressed and well exposed.  (Emphasis 
 
         added)
 
         More than just the left lower extremity was affected.  The above 
 
         quotation illustrated that.  Additionally, claimant was treated 
 
         by several medical practitioners for acute lumbosacral strain 
 
         following her work injury and for chronic trochanteric bursitis 
 
         which Dr. Fitzgibbons causally related to claimant's work injury.
 
         Permanent partial impairment ratings have been assessed from 3 
 
         percent to 15 percent.  Additionally, claimant is restricted from 
 
         returning to her position as a waitress.  She is also restricted 
 
         to sedentary employment.  Claimant is to refrain from prolonged 
 
         bending and walking.
 
         Claimant dropped out of high school in the ninth grade.  She has 
 
         no GED.  Claimant's age of 56 is working against her.  She has 
 
         few transferable skills.  She was fired from the Thumbs 
 
         Restaurant.  Claimant is not the best candidate for retraining.  
 
         Nor is claimant especially motivated to accomplish vocational 
 
         rehabilitation.  She was less than cooperative with Ms. Freeman.  
 
         Claimant has not made a concerted effort to seek employment.
 
         After reviewing all of the above, it is the determination of the 
 
         undersigned that claimant has an industrial disability.  She has 
 

 
         
 
         Page   6
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         a permanent partial disability of 30 percent.
 
         It is also the determination of the undersigned that as of 
 
         September 24, 1987, claimant had reached maximum medical 
 
         improvement per Dr. Margules.  Therefore, she is entitled to 
 
         healing period benefits from April 14, 1986 to September 24, 
 
         1987.  This is a period of 75.571 weeks at the stipulated rate of 
 
         $194.78 per week.
 
         Finally, there is the issue of medical benefits and mileage 
 
         pursuant to section 85.27.  Claimant is entitled to the following 
 
         which are causally related to her work injury:
 
         
 
              3-15-87     Jennie Edmundson Hospital         $2,575.05
 
              4-10-87     Jennie Edmundson Hospital             37.50
 
                          Radiology Consultants                100.00
 
             12-30-88     Drs. Gross etc. (knee & lateral)     105.00
 
                          Walgreen's                           169.74
 
                   Total                $2,987.29
 
         She is also entitled to medical mileage at $.21 per mile for 1101 
 
         miles.  This totals $231.21.
 
         order
 
         Defendants are to pay one hundred fifty (150) weeks of permanent 
 
         partial disability benefits at the rate of one hundred 
 
         ninety-four and 78/l00 dollars ($194.78) per week commencing on 
 
         September 25, 1987.
 
         Defendants are to pay seventy-five and five-seven-one (75.571) 
 
         weeks of healing period benefits from April 14, 1986 to September 
 
         24, 1987, at the stipulated rate of one hundred ninety-four and 
 
         78/l00 dollars per week.
 
         Defendants are to pay medical bills in the sum of two thousand 
 
         nine hundred eighty-seven and 29/l00 dollars ($2,987.29) and two 
 
         hundred thirty-one and 21/l00 dollars ($231.21) in medical 
 
         mileage.
 
         Defendants shall receive credit for all benefits previously paid 
 
         and not credited.
 
         Interest shall be paid pursuant to section 85.30.
 
         Costs of the action shall be assessed to defendants pursuant to 
 
         rule 343 IAC 4.33.
 
         Defendants shall file a claim activity report as requested by 
 
         this division pursuant to rule 343 IAC 3.l.
 
         
 
         
 
         
 
              Signed and filed this ____ day of January, 1991.
 
         
 
         
 
         
 
         
 
         
 
                   ______________________________               MICHELLE 
 
         A. McGOVERN
 
                   DEPUTY INDUSTRIAL COMMISSIONER
 

 
         
 
         Page   7
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. F. J. Kraschel
 
         Attorney at Law
 
         403 lst Federal Savings & Loan
 
         Council Bluffs  IA  51501
 
         
 
         Mr. Thomas L. Root
 
         Attorney at Law
 
         306 lst Federal Savings & Loan Bldg
 
         P O Box 1502
 
         Council Bluffs  IA  51502
 
         
 
         Mr. W. Curtis Hewett
 
         Attorney at Law
 
         P O Box 249
 
         Council Bluffs  IA  51502
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                           5-1803.1
 
                           Filed January 28, 1991
 
                           MICHELLE A. McGOVERN
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            GERALDINE L. PRATT, :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :         File No. 821303
 
            JIM RATLIFF and MARK CODEY    :
 
            d/b/a HARVEST INN a/k/a       :      A R B I T R A T I O N
 
            THUMBS RESTAURANT,  :
 
                      :         D E C I S I O N
 
                 Employer, :
 
                      :
 
            and       :
 
                      :
 
            U.S.F. & G.,   :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            
 
            5-1803.1
 
            Claimant was awarded a 30 percent permanent partial 
 
            disability.